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Court of AppealDismissedCourt of Appeal at Kisumu (appeal against Kisumu ELC Petition Nos. 1 of 2020 and 004 of 2020, consolidated)· [2025] KECA 545 (KLR)

Kenya Railways Corporation v Birah & 14 others (Civil Appeal E206 of 2021) [2025] KECA 545 (KLR)

Court of Appeal of Kenya
21 March 2025
ASAsike-MakhandiaHOH. A. OmondiLKL. Kimaru
5,375 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that demolishing homes without proper notice and dignity is unconstitutional, and evicted residents are entitled to compensation.

What this practically means

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Executive summary

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The 1st to 6th respondents, members of the Nubian community, together with some 3,500 other residents, petitioned the Kisumu Environment and Land Court claiming that their homes in the Kibos Informal Settlement, on Kibos Township Crown Land LR No. 655, were demolished on 16th March 2020 by Kenya Railways and state agencies without due notice, court orders, or alternative accommodation, violating their rights to property, housing, dignity and fair administrative action. The trial court (Ombwayo, J) allowed the petitions on 27th August 2021, holding that the community held a long-term licence granted by the colonial government in 1937, that the land had been alienated to them and never vested in Kenya Railways, and that the eviction breached Articles 40, 43 and 47 of the Constitution and section 152B of the Land Act. Kenya Railways appealed on 13 grounds, contending the land was railway reserve under vesting notices and that the licences were temporary. The Court of Appeal at Kisumu (Asike-Makhandia, H.A. Omondi and L. Kimaru, JJA), acting as a first appellate court, re-evaluated the evidence and dismissed the appeal. It held that the statutory eviction procedure was not followed, the respondents received insufficient notice, the eviction occurred at night during a curfew contrary to the Land Laws Amendment Act 2016 and international standards on forced evictions, and that demolition of homes without regard to welfare violated the respondents' socio-economic rights and fair administrative action rights. The trial court's judgment was affirmed, and costs were awarded to the 1st to 6th and 13th respondents.

Key legal issues

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01

Whether the respondents held rights in the suit property capable of protection under Article 40 of the Constitution

Holding

Yes. The trial court found, and the Court of Appeal affirmed, that the respondents maintained a long-term licence from the colonial government over the disputed land, giving them rights capable of protection; their occupation was not illegal.

Reasoning

The learned judge found that the colonial government granted the respondents' forefathers in 1937 a licence described as a long-term licence during their lifetimes, which cannot be taken away. The Court of Appeal, having re-evaluated the record as a first appellate court, detected no error in that finding. The appellant did not demonstrate prejudice or a miscarriage of justice, so the finding that the respondents' rights under Article 40 were violated by the eviction stood.

p. 10
02

Whether the eviction and demolition of 16th March 2020 complied with the statutory eviction procedure

Holding

No. The statutory procedure for evictions, including the notice requirements, was not followed and the respondents were not given sufficient notice, rendering the eviction irregular, illegal and unprocedural.

Reasoning

Section 152G of the Land Laws Amendment Act 2016 requires written notice, Gazette notice, newspaper publication and radio announcement at least three months before eviction from public land. The respondents were evicted at night, at 3:00 am, during the Covid-19 curfew, contrary to these requirements and the international standards on forced evictions. Adequate and reasonable notice and respect for human dignity must be observed in any eviction.

p. 10
03

Whether the eviction violated the respondents' socio-economic rights and right to fair administrative action

Holding

Yes. Demolishing the respondents' houses, churches and schools without considering their welfare violated their socio-economic and cultural rights under Article 43 and their right to fair administrative action under Article 47.

Reasoning

The State has a duty to refrain from interfering directly or indirectly with the enjoyment of socio-economic rights. The houses were demolished without considering the respondents' welfare, without alternative accommodation, and without fair administrative process. The Court found no error in the trial judge's conclusion that these rights were violated, and affirmed the declarations granted.

p. 10
04

Whether the trial court properly evaluated the evidence tendered

Holding

Yes. The trial court considered and analysed the evidence; the appellant failed to demonstrate any prejudice or miscarriage of justice.

Reasoning

As a first appellate court, the Court re-assessed the record and concluded that the trial judge considered all relevant facts and points of law urged by the parties. The contention that the learned Judge did not analyse the evidence was found to lack merit. The Court applied the standard that it will not interfere with factual findings absent misdirection or failure to consider relevant matters.

p. 11

Legal principles established

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  • On a first appeal, the Court of Appeal must reconsider and re-evaluate the evidence on record and draw its own conclusions, while making due allowance for not having seen or heard the witnesses.
  • Any eviction, forcible or otherwise, requires adequate and reasonable notice; the statutory eviction procedure and the constitutional provisions on fair administrative action must be adhered to.
  • A court will rarely interfere with findings of fact by a trial court unless the judge misdirected himself, acted on matters he should not have, or failed to consider relevant matters and thereby arrived at a wrong conclusion.
  • Treaties and conventions ratified by Kenya form part of Kenyan law and bind Kenya, and may be applied by Kenyan courts, including international human rights norms protecting evictees.
  • Demolition of homes without following the statutory eviction procedure violates the affected persons' socio-economic rights under Article 43 and their right to fair administrative action under Article 47.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal awarded to the 1st to 6th respondents and the 13th respondent

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 43
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 2(5) and 2(6)
  • Constitution of Kenya, 2010Article 10(2)
  • Constitution of Kenya, 2010Articles 26, 28, 29, 35, 53, 57, 21, 20, 23, 27, 65
  • Land ActSection 152B; Section 152(c)
  • Land Laws Amendment Act 2016Section 152G
  • Physical Planning Act (CAP 286)
  • Government Land Act
  • Land RegulationsRegulation 68
  • Crown Lands Ordinance1902 and 1915 Ordinances
  • Native Lands Ordinance
  • Vesting Order 1986Legal Notice No. 24 of 1986; Legal Notice No. 440 of 1963
  • African Charter on Human and Peoples' Rights (ACHPR)Articles 16, 18, 28
  • UN Covenant on Economic, Social and Cultural Rights (CESCR)Right to Adequate Housing

Cases cited (2)

  • Kenya Ports Authority v Kuston (Kenya) Limited
    [2009] 2EA 212
  • Kepha Omondi Onjuro & others v Attorney General & 5 Others
    [2015] eKLR
On appeal from
Environment and Land Court, Kisumu
Petition No. 1 of 2020 and Petition No. 004 of 2020 (consolidated)
Jurisdiction invoked
First appeal to the Court of Appeal under the applicable appellate statute; the Court exercised its duty as a first appellate court to re-evaluate evidence

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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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 Birah & 14 others (Civil Appeal E206 of 2021) [2025] KECA 545 (KLR)", Case Analysis (2025). Court of Appeal at Kisumu (appeal against Kisumu ELC Petition Nos. 1 of 2020 and 004 of 2020, consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/545/eng@2025-03-21

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