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Court of AppealDismissedCivil Appeal (Kisumu)

Kenya Railways Corporation v Omboto & another (Civil Appeal 78 of 2020) [2025] KECA 537 (KLR)

Court of Appeal of Kenya
21 March 2025
5,058 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~20 min to read original · ~4 min brief

The bottom line

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The Court of Appeal confirmed that even state agencies cannot demolish someone's property without a court order first, and Kenya Railways must pay millions for doing so.

What this practically means

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Executive summary

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Kenya Railways Corporation appealed against a judgment of Ombwayo J of the Environment and Land Court at Kisumu in Constitutional Petition No. 8 of 2019, which had declared that the demolition of the respondents' perimeter wall and structures on Kisumu Municipality/Block 7/530 on 14th August 2019 violated their rights under Articles 40, 43 and 47 of the Constitution, and awarded general damages of Kshs. 5,000,000 plus monthly rental income of Kshs. 473,974 from the date of demolition. Although the trial court found that the suit property formed part of un-surveyed land vested in the appellant and that the respondents' acquisition was illegal, null and void, it declined to cancel the title. Before the Court of Appeal, the appellant abandoned all grounds except the findings on instigation of the demolition and entitlement to compensation, while the respondents abandoned their unserved cross-appeal. The Court held that the respondents were registered proprietors by virtue of a subsisting judicial review judgment reinstating their title, so their property rights were protected pending determination of ELC No. 78 of 2015, and Dina Management did not apply. Circumstantial evidence, the pleadings, and the appellant's subsequent allowing of KPA to occupy the property established that the demolition was instigated, approved and sanctioned by the appellant. Self-help demolition without a judicial determination of unlawfulness, notice, or court order breached Articles 40, 43 and 47. The damages award was a sound exercise of discretion consistent with Ramanoop principles. The non-joinder objection was held waived. The appeal was dismissed with costs to the respondents.

Questions the Court framed

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

  1. 1.Whether the finding that the actions of the Cabinet Secretary and KPA in demolishing the perimeter wall were instigated, approved and sanctioned by the appellant was right
  2. 2.Whether the respondents were entitled to compensation for breach of their constitutional rights under Articles 40, 43 and 47 of the Constitution

Key legal issues

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01

Whether the appellant was liable for the demolition carried out by the Cabinet Secretary and KPA

Holding

Yes - the trial court correctly found that the demolition was instigated, approved and sanctioned by the appellant, on the basis of circumstantial evidence, pleadings linking the appellant, and the appellant's subsequent allowing of KPA to occupy the property

Reasoning

The respondents' petition expressly linked the appellant to the demolition and the appellant never denied participation directly or indirectly. The demolition was undertaken to recover the suit property for the benefit of the appellant, and the property was subsequently occupied by KPA with the appellant's knowledge and consent. The court found sufficient circumstantial evidence of the appellant's tacit approval, so liability could not be escaped on the basis of want of nexus.

p. 6
02

Whether the respondents' constitutional rights under Articles 40, 43 and 47 were violated despite the trial court's finding that their title was part of un-surveyed land vested in the appellant

Holding

Yes - at the time of the demolition the respondents were registered proprietors by virtue of a subsisting judicial review judgment reinstating their title, so their rights were protected pending determination of ELC No. 78 of 2015

Reasoning

A prior judgment in Judicial Review Miscellaneous Application No. 256 of 2009 had ordered reinstatement of the respondents as proprietors, and that decree still obtained. The dispute was not about ownership but about destruction of property without notice or compensation. Because title had been restored through judicial process, Dina Management was inapplicable, and no declaration of unlawfulness had been made before the demolition.

p. 6
03

Whether the ELC erred in the quantum of damages awarded

Holding

No - the award of Kshs. 5,000,000 general damages and monthly rental income of Kshs. 473,974 was a proper exercise of discretion consistent with constitutional remedial principles

Reasoning

The award of damages is discretionary and an appellate court interferes only for wrong principles or an entirely erroneous estimate. Citing Ramanoop, the court reiterated that constitutional remedies aim to vindicate rights, deter future breaches and reflect public outrage, not merely compensate. The appellant failed to show that the ELC applied wrong principles or considered irrelevant factors.

p. 8
04

Whether the appeal was fatally defective for non-joinder of necessary parties

Holding

The objection failed because the respondents waived it by not moving to strike out the appeal in time

Reasoning

Although respondents' counsel correctly identified the defect of non-joinder, the appropriate course was to invoke the Court's rules within 30 days of service of the record of appeal. Having failed to do so, the respondents were deemed to have waived the objection and could not revisit it at the hearing.

p. 8

Legal principles established

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  • Before any adverse action is taken against property alleged to have been unlawfully acquired, there must first be a judicial determination declaring the property unlawfully acquired; self-help demolition without notice or court order violates Articles 40, 43 and 47
  • Where a party fails to invoke the appropriate rules of the Court to have an appeal struck out for a curable defect within 30 days of service of the record of appeal, that objection is waived and cannot be raised at the hearing
  • An appellate court will be slow to interfere with a trial court's award of general damages unless the wrong principles were applied or the figure is an entirely erroneous estimate

Court orders

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  1. 1.The appeal was dismissed
  2. 2.Costs of the appeal were awarded to the respondents

The bench

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

majority
majority
majority
On appeal from
Environment and Land Court of Kenya at Kisumu
Constitutional Petition No. 8 of 2019
Jurisdiction invoked
First appeal to the Court of Appeal under Article 164 of the Constitution (not expressly stated in the judgment)

Relief refused

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The respondents' cross-appeal

It was not served on the appellant and was abandoned by respondents' counsel at the hearing

p. 5

Summary dismissal of the appeal for non-joinder of necessary parties (Cabinet Secretary, AG, KPA, NLC, Hodima Construction Limited)

Respondents failed to invoke the Court's rules to strike out the appeal within 30 days of service of the record, thereby waiving the objection

p. 9

Costs

The appeal was dismissed with costs to the 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.

It is always imperative that a judicial determination be made declaring the property unlawfully acquired prior to any adverse action being undertaken.
p. 7Protection of property rights - no self-help against registered title
There was suficient circumstantial evidence pointing to the tacit approval of the duo's actions by the appellant.
p. 6Liability of the appellant for demolition by other state actors
The primary purpose of a constitutional remedy is not compensatory or punitive but is to vindicate the rights violated and to prevent or deter any future infringements.
p. 8Purpose of damages for constitutional violations
Having failed to do so, the respondents are deemed to have waived that right and cannot revisit it in this appeal.
p. 9Waiver of objection for non-joinder on appeal
Consequently, the appeal lacks merit and is accordingly dismissed with costs to the respondents.
p. 9Final orders and costs

Issues in the judgment

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minor

The judgment refers inconsistently to the judicial review proceedings, citing 'Kisumu HCC Misc. Application No. 25 of 2009' in the narrative but 'Judicial Review Miscellaneous Application No. 256 of 2009' in the quotation from the trial court

minor

The Kenya Airports Authority is referred to by the abbreviation 'KPA', which conventionally denotes Kenya Ports Authority, potentially an error within the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Railways Corporation v Omboto & another (Civil Appeal 78 of 2020) [2025] KECA 537 (KLR)", Case Analysis (2025). Civil Appeal (Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/537/eng@2025-03-21

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