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ELCDismissedNotice of Motion application dated 28th July 2025

Gatheru & another v Kenya Railways Corporation & another (Environment and Land Case 929 of 2017) [2026] KEELC 2285 (KLR)

Environment and Land Court
23 April 2026
2,095 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Landowners in a Kenya Railways case cannot switch their lawsuit to a compensation claim — only Kenya's Land Acquisition Tribunal can decide compensation for compulsorily acquired land.

What this practically means

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Executive summary

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This Environment and Land Court ruling by M.D. Mwangi J dismisses a Notice of Motion dated 28th July 2025 by the Plaintiffs, owners of land L.R. No. Kajiado/ntashart/263 in Kimuka Area, brought against Kenya Railways Corporation and China Communications Construction Company Limited. The Plaintiffs, whose land was bisected by construction of the Standard Gauge Railway, sought leave to amend their Plaint of 14th November 2017 (originally a trespass claim) to claim compensation of Kshs. 21,735,000.00, join the National Land Commission, and have the dispute referred to the Land Acquisition Tribunal. They relied on a Valuation Report by COG Consultants Limited and a Surveyor's Report by Geomatic Services Limited showing 7.064 acres rendered inaccessible and 0.488 hectares uneconomical. Kenya Railways opposed, arguing the claim for trespass had been held by the Court of Appeal in Civil Appeal No. 97 of 2018 (judgment of 10th May 2019) to have been overtaken by compulsory acquisition, and that the Court lacked jurisdiction over compensation claims. The 2nd Respondent withdrew its preliminary objection. The Court framed a single issue of jurisdiction. Applying the Lillian S and Samuel Kamau Macharia decisions on jurisdiction, and holding that Section 133C(6) of the Land Act ousts the Court's original jurisdiction over compulsory acquisition matters in mandatory terms, the Court found it could not entertain the proposed compensation claim. Relying on Mutanga Tea, it refused the amendment. Referral to the Tribunal was also refused since the claim before the Court remained one for trespass. The application was dismissed in its entirety with costs on 23rd April 2026.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether this Court has jurisdiction to entertain and allow the proposed amendments and transfer/refer the suit to the Land Acquisition Tribunal in light of the dispute relating to compulsory acquisition of land

Key legal issues

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01

Whether the Court has jurisdiction to allow amendments introducing a claim for compensation for compulsory acquisition

Holding

The Court lacks jurisdiction; compensation for compulsory acquisition is within the exclusive first-instance jurisdiction of the Land Acquisition Tribunal under Section 133C(6) of the Land Act, and no amendment can introduce a claim the Court cannot entertain.

Reasoning

The proposed amendment would fundamentally alter the dispute from trespass to compensation for compulsory acquisition. Section 133C(6) of the Land Act, couched in mandatory terms with a non-obstante clause, ousts the Court's original jurisdiction and designates the Tribunal as the court of first instance. Applying Mutanga Tea, a party cannot amend pleadings to introduce a cause of action the Court had no jurisdiction to entertain. The amendment prayer therefore fails.

p. 5
02

Whether the suit should be referred to the Land Acquisition Tribunal

Holding

Referral is refused because the claim actually before the Court remains a claim for trespass; there is nothing before the Court to refer.

Reasoning

Having declined the amendment, the suit before the Court remains the original trespass claim. The Court found no basis for referring the matter to the Tribunal even if it had the power to do so, leaving the Plaintiffs to rethink their litigation strategy in light of the Court of Appeal's observation that the trespass claim had been overtaken by compulsory acquisition.

Legal principles established

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  • A party cannot amend pleadings to introduce a cause of action that the court has no jurisdiction to entertain in the first place.
  • Section 133C(6) of the Land Act, in mandatory terms and with a non-obstante clause, ousts the High Court/ELC's original jurisdiction over matters relating to compulsory acquisition of land, making the Land Acquisition Tribunal the court of first instance.
  • Jurisdiction is the first question a court must answer before taking any further step in a suit.

Court orders

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  1. 1.The Notice of Motion application dated 28th July 2025 is dismissed in its entirety with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 1 Rule 15(1) of the Civil Procedure Rules, 2010; jurisdiction examined against Section 133C of the Land Act, No. 6 of 2012

Relief refused

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Leave to amend the Plaint dated 14th November 2017

The proposed amendment introduces a claim for compensation for compulsory acquisition, which falls within the exclusive jurisdiction of the Land Acquisition Tribunal under Section 133C(6) of the Land Act

p. 5

Deeming the Draft Amended Plaint as duly filed and served

Follows the refusal of leave to amend

Referral of the dispute to the Land Acquisition Tribunal

The claim before the court remains a claim for trespass, so there is no basis for referral even if the court had the power

p. 5

Costs

The Notice of Motion application dated 28th July 2025 is dismissed in its entirety with costs (costs to the Defendants/Respondents).

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, the Notice of Motion application dated 28th July 2025 being the application under consideration is hereby dismissed in its entirety with costs.
p. 5Final orders - dismissal of the application
Since the dispute has crystallized into a claim for compensation for land taken for public purpose, it falls squarely within the preserve of the Land Acquisition Tribunal pursuant to Section 133C(6) of the Land Act.
p. 5Exclusive jurisdiction of the Land Acquisition Tribunal over compulsory acquisition claims
A party cannot seek to amend pleadings to introduce a cause of action that the Court had no jurisdiction to entertain in the first place.
p. 5Amendment of pleadings and jurisdiction
Jurisdiction is everything. Without it, a Court has no power to make one more step.
p. 3Jurisdiction as a threshold question

Issues in the judgment

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minor

The judgment states the date of delivery as 23rd April 2026, more than eight months after the application of 28th July 2025 was filed and after submissions of September/October 2025; this is as printed and has been recorded accordingly.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Gatheru & another v Kenya Railways Corporation & another (Environment and Land Case 929 of 2017) [2026] KEELC 2285 (KLR)", Case Analysis (2026). Notice of Motion application dated 28th July 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2285/eng@2026-04-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.