Jemilah Adhiambo & 5 others v Kenya Railways Corporation & another [2021] KEELC 816 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the petitioners were evicted by the respondents
The petitioners proved that the 1st respondent was part of the multiagency operation that evicted them, implicating the state through the Attorney General.
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.
Whether the evictions were legal
The evictions were illegal and violated Articles 10(2)(b), 28 and 43 of the Constitution.
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.
Whether the petitioners suffered provable loss entitling them to compensation
Liability was established but quantum was not proved; no damages awarded.
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.
Legal principles established
#- 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
#- 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.Half costs of the suit to be borne by the respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.