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ELCPartially AllowedNot stated in the judgment

Chunky Limited v Kenya Railways Corporation (Environment and Land Petition E010 of 2025) [2026] KEELC 5230 (KLR)

Environment and Land Court
21 July 2026
7,427 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~30 min to read original · ~4 min brief

The bottom line

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A Kenyan court granted a landlocked business immediate access to its property through a Kenya Railways underpass, but sent it to the National Land Commission to formalise the right of way.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kwale (L.L Naikuni, J) on a Notice of Motion dated 9th June 2025 by Chunky Limited, the Petitioner, seeking temporary orders compelling Kenya Railways Limited, the Respondent, to grant it full unimpeded access to plot MN/VI/909 via the DK 100 bridge underpass pending determination of a constitutional Petition founded on Articles 22, 23, 27, 40, 47 and 50. The Respondent opposed through a preliminary objection contending that the court lacked original jurisdiction, that creation of rights of way is a preserve of the National Land Commission under Sections 143-146 of the Land Act, and that the suit was time barred under Section 87(b) of the Kenya Railways Corporation Act. The court framed four issues. It found the preliminary objection raised a pure point of law but nevertheless disallowed it: although the Land Act makes the National Land Commission the first port of call for rights of way, the Applicant was not seeking a new public right of way but access to its own landlocked remainder through an existing underpass, the NLC cannot grant interlocutory or mandatory injunctions, and the industrial park employing over 200 workers constituted special circumstances justifying exemption from the doctrine of exhaustion. The limitation objection also failed, the court being guided by Article 48 and prior authority on access to justice, noting the Applicant had negotiated before suing. Finding a prima facie case and that the balance of convenience favoured the Applicant, the court allowed the application and granted interim access. However, it directed the Applicant to file an application before the NLC within 14 days and stayed the proceedings pending that outcome, with the interim orders remaining in place. Each party was ordered to bear its own costs.

Questions the Court framed

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

  1. 1.Whether the Preliminary Objection dated 21st November, 2025 raised by the Defendant herein meets the threshold of such an objection by Law and Precedent
  2. 2.Whether the Preliminary Objection dated 21st November, 2025 raised by the Defendant herein is meritorious or not
  3. 3.Whether the orders sought in the Notice of Motion Application dated 9th June, 2025 can issue
  4. 4.Who bears the costs of the application and the preliminary objection?

Key legal issues

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01

Whether the preliminary objection met the threshold of a preliminary objection

Holding

The objection raised a pure point of law as it challenged jurisdiction, and therefore met the threshold

Reasoning

The court set out the classic test from Mukisa Biscuits and John Musakali: a preliminary objection must be a pure point of law on facts that are agreed or clearly implied from the pleadings. It found the jurisdictional challenge, based on the National Land Commission's statutory mandate over rights of way, satisfied this test, relying on Yudaya Lutta Musoke for the principle that objections founded purely on law and argued on the face of pleadings are justifiable.

p. 20
02

Whether the court lacked jurisdiction and whether the doctrine of exhaustion barred the suit

Holding

The objection was disallowed; the court had jurisdiction despite the NLC's statutory role, because exceptional circumstances justified exemption from the doctrine of exhaustion

Reasoning

Although Sections 143-146 of the Land Act place creation of public rights of way with the National Land Commission, the court found the Applicant was not seeking a fresh public right of way but restoration of access to its own land via an existing underpass. It held the NLC cannot grant interlocutory or mandatory injunctions, and the livelihoods dependent on the industrial park constituted special circumstances warranting exemption from exhaustion.

p. 32
03

Whether the suit was time barred under Section 87(b) of the Kenya Railways Corporation Act

Holding

The limitation defence failed; the Applicant had engaged in negotiations and the claim raised constitutional and statutory duty issues

Reasoning

The court noted that courts have interpreted Section 87(b) in light of Article 48 on access to justice, citing the Court of Appeal in Joseph Nyamamba v Kenya Railways. Since the Applicant had negotiated with the Respondent before suing, and the claim concerned denial of access and an unconstitutional monetary precondition rather than a tort claim for damages, it would be a grave injustice to bar the claim.

p. 34
04

Whether the temporary (mandatory injunction) orders sought could issue

Holding

The orders issued: a prima facie case was established and the balance of convenience tilted towards the Applicant

Reasoning

Applying Joseph Kaloki and Kenya Breweries v Okeyo, the court acknowledged mandatory injunctions at interlocutory stage require special circumstances. It found the circumstances special because the compulsorily acquisition left the Applicant's remaining parcel landlocked, threatening an industrial park employing over 200 workers. Guided also by Section 149 of the Land Act and the County Government of Meru case on the economic importance of access, the court found a prima facie case and granted access pending determination of the Petition.

p. 39

Legal principles established

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  • A preliminary objection must be founded on a pure point of law, on facts not in dispute
  • Jurisdiction is the lifeline of a case; without it a court must down its tools
  • The doctrine of exhaustion admits exceptions where the statutory remedy is unsuitable, inadequate or its pursuit would be futile
  • A mandatory injunction may be granted at interlocutory stage where special circumstances are demonstrated

Court orders

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  1. 1.The Preliminary Objection dated 21st November, 2025 raised by the Defendant be and is hereby disallowed
  2. 2.The Notice of Motion application dated 9th June, 2025 be and is hereby found to be meritorious and hence allowed as prayed
  3. 3.Pending hearing and determination of the Petition, a temporary order directing the Respondent to grant the Applicant and its agents full unimpeded access to Plot MN/VI/909 via the DK 100 bridge under pass to enable the Applicant to continue its industrial park operations
  4. 4.The Applicant to file an application for creation of a Right of Way by the Respondent to the National Land Commission within the next 14 days
  5. 5.In the meantime, the instant proceedings are stayed pending the outcome of the dispute before the National Land Commission, with the interim orders remaining in place until then
  6. 6.Mention on 11th November, 2026 to ascertain full compliance of these orders, the progress made and further directions
  7. 7.Each party to bear its own costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 165(2)(b) of the Constitution and Section 13(1) of the Environment and Land Court Act

Relief refused

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Unrestricted continuation of the suit before the Environment and Land Court

The court directed the Applicant to first seek creation of a right of way before the National Land Commission and stayed the proceedings pending that process

p. 42

Costs

Each party to bear its own costs

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.

THAT the Preliminary Objection dated 21 st November, 2025 raised by the Defendant be and is hereby disallowed.
p. 41final orders - preliminary objection disallowed
THAT pending hearing and determination of this Petition this Honourable Court be and is hereby pleased to issue a temporary order directing the Respondent to grant the Applicant and its agents full unimpeded access to Plot MN/VI/909 via the DK 100 bridge under pass to enable the Applicant to continue its industrial park operations.
p. 42final orders - interim access granted
THAT the Applicant to file an application for creation of a Right of Way by the Respondent to the National Land Commission based on the relevant provisions of the Law as set out herein WITHIN THE NEXT 14 DAYS.
p. 42final orders - referral to National Land Commission
THAT in the meantime, the instant proceedings are hereby stayed pending the outcome of the dispute before the National Land Commission. The orders in above herein will however be in place until then.
p. 42final orders - stay of proceedings
THAT each party to bear its own costs.
p. 43final orders - costs
It is in the interest of justice that I declare such to be special circumstances which ought to lead to an exemption of the doctrine of exhaustion.
p. 32exception to doctrine of exhaustion
I discern that a prima facie case has been established for granting of the mandatory injunction orders sought pending the hearing and determination of the petition.
p. 39mandatory injunction threshold met

Issues in the judgment

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minor

The heading and parties sections inconsistently describe the parties as 'Plaintiffs/Applicants' and 'Defendant' although the introduction describes them as Petitioner and Respondent

minor

Internal date inconsistencies: the application is dated 9th June, 2025 but the Respondent's submissions are stated as dated 3rd March, 2025, i.e. before the application

minor

The compulsory acquisition year is stated inconsistently as 2014, 2016 and 2017 in different parts of the judgment

minor

The court reserved 18th June, 2026 as delivery date yet the ruling is dated 21st July, 2026; also the application was directed for submissions on 8th December, 2025 with submissions filed 11th February, 2026

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, "Chunky Limited v Kenya Railways Corporation (Environment and Land Petition E010 of 2025) [2026] KEELC 5230 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5230/eng@2026-07-21

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