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ELCPartially AllowedELC Petition No. E7 of 2021· [2021] KEELC 816 (KLR)

Jemilah Adhiambo & 5 others v Kenya Railways Corporation & another [2021] KEELC 816 (KLR)

Environment and Land Court
19 November 2021
7,963 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~32 min to read original · ~4 min brief

The bottom line

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A Kisumu court ruled Kenya Railways' night-time demolitions violated residents' constitutional rights, but denied them compensation because they couldn't prove their losses.

What this practically means

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Executive summary

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Six petitioners, suing on their own behalf and on behalf of residents of Bandani, Airport, Korando 'B' and Lela areas of Kisumu West Sub-County, petitioned against Kenya Railways Corporation and the Attorney General over demolitions and evictions carried out on 6th, 7th and 9th February 2021 during the refurbishment of the Nakuru-Kisumu railway line. They sought declarations of violations of Articles 10(2)(b), 25, 26, 27, 28, 29(f), 39, 40, 43, 47 and 56, a relocation action plan, compensation and damages. Kenya Railways denied involvement, contending the operation was a multiagency exercise and that the structures stood on a railway reserve or visibility diamond without the Managing Director's approval; the Attorney General argued no cause of action was disclosed against him. The court framed three issues: whether the petitioners were evicted by the respondents, whether the eviction was legal, and whether compensation was due. It found the 1st respondent was part of the multiagency operation, making the Attorney General liable for the national government units. The evictions were held illegal and violative of Articles 10(2)(b), 28 and 43 as homes were demolished at night without regard to the petitioners' dignity, welfare or fair administrative action. However, the petitioners failed to prove ownership of the suit properties or quantum of loss, so no compensation was awarded. The court declared the respondents jointly and severally responsible for the violations and awarded the petitioners half costs.

Key legal issues

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01

Whether the petitioners were evicted by the respondents

Holding

The petitioners proved that the 1st respondent was part of the multiagency operation that evicted them, implicating the state through the Attorney General.

Reasoning

Although the 1st respondent denied carrying out the demolitions, it admitted the operation was conducted by a multiagency team including the Presidential Delivery Unit and the National Police Service, and asserted that the land was railway reserve. The court found that the petitioners satisfied it that the 1st respondent was part of that multiagency operation.

p. 7
02

Whether the evictions were legal

Holding

The evictions were illegal and violated Articles 10(2)(b), 28 and 43 of the Constitution.

Reasoning

Homes were demolished at night without regard to the petitioners' welfare or school-going children, disrupting their social and economic life. Further, titles had not been declared unlawfully acquired by a court, so the respondents had no power to treat them as illegal; the evictions also breached fair administrative action guarantees.

p. 7
03

Whether the petitioners suffered provable loss entitling them to compensation

Holding

Liability was established but quantum was not proved; no damages awarded.

Reasoning

While the petitioners proved eviction and disruption of education and livelihood, the material placed before the court was insufficient to assess damages. They were obliged to place evidence of the damage before the court; the court could not conjure a compensation figure without justification.

p. 8

Legal principles established

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  • The legal burden of proof in a case is static and rests on the claimant throughout the trial; only the evidential burden may shift.
  • Only a court of law may determine that a person acquired land illegally; respondents have no such power.

Court orders

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  1. 1.Declaration that the respondents have jointly and severally been responsible for the violation of the petitioners' fundamental rights under Articles 10(2)(b), 28 and 43(a) to (f) of the Constitution by failing to ensure the petitioners were treated with human dignity and equity during their eviction, infringing their economic and social rights and denying them fair administrative action
  2. 2.Half costs of the suit to be borne by the respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 10, 21, 25, 26, 27, 28, 29(f), 39, 40, 43, 47, 50(1), 56, 60, 65
  • Kenya Railways Act, Cap. 397Section 16
  • Evidence Act, Cap. 80Section 107
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 10(2)(d)

Cases cited (18)

  • Mitu Bell Welfare Society v Kenya Airports Authority & 2 others; Initiative for Strategic Litigation in Africa (Amicus Curiae)
    Supreme Court Petition No. 3 of 2018; [2021] eKLR
  • Irene Grootboom and Others v The Government of the Republic of South Africa and Others
    (2001) (1) SA 46
  • Doucet-Boudreau v Nova Scotia (Minister of Education)
    2003 SCC 62
  • Kiambu County Tenants Welfare Association v Attorney General & another
    [2017] eKLR
  • Rhesa Shipping Co SA v Edmunds
    (1955) 1 WLR 948
  • Britestone Pte Ltd v Smith & Associates Far East Ltd
    (2007) 4 SLR
  • Miller v Minister of Pensions
    {1947} 2 All ER 372
  • Edward Akong'o Oyugi & 2 others v Attorney General
    [2019] eKLR
  • Macfov v United Africa Company Ltd
    (1961) 3 All E.R. 1169
  • Birket v Arcon Business Machines Ltd
    [1999] 2 All ER 429
  • Gideon Mbuvi Kioko v Attorney General & 6 others
    [2012] eKLR
  • Gideon Mbuvi Kioko v Attorney General & another
    [2017] eKLR
  • Moi Education Centre Co. Ltd
  • Anarita Karimi Njeru v Republic (No. 1)
    [1979] 1 KLR 154
  • Trusted Society of Human Rights Alliance v Attorney General & 2 Others
    {2012} eKLR
  • Raila Amolo Odinga & Another v IEBC & 2 Others
    Presidential Election Petition No. 1 of 2017; (2017) eKLR
  • Siewchand Ramanoop v The AG of T&T
    PC Appeal No 13 of 2004
  • Romauld James v AGT
    [2010] UKPC
Jurisdiction invoked
Constitution of Kenya, 2010 (Articles 10, 25, 26, 27, 28, 29(f), 39, 40, 43, 47 and 56 - Bill of Rights enforcement under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013)

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, "Jemilah Adhiambo & 5 others v Kenya Railways Corporation & another [2021] KEELC 816 (KLR)", Case Analysis (2021). ELC Petition No. E7 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/816/eng@2021-11-19

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