Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNotice of Motion dated 30th October, 2020 in a suit commenced by Plaint dated 19th November, 2018· [2021] KEELC 1919 (KLR)

Catherine Njeri Majani v Kenya Railways Corporation & another [2021] KEELC 1919 (KLR)

Environment and Land Court
24 September 2021
2,868 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court ruled that missing the 30-day notice before suing Kenya Railways does not kill your land compensation case.

What this practically means

#

Executive summary

#
This Environment and Land Court at Machakos ruling by O. A. Angote J determined a Notice of Motion dated 30th October, 2020 by the 1st Defendant, Kenya Railways Corporation, seeking a declaration that the court lacked jurisdiction, striking out of the Plaint dated 19th November, 2018 as time-barred, and costs. The application invoked Section 87(a) and (b) of the Kenya Railways Corporation Act, which requires one month's written notice before suing the Corporation and mandates commencement within twelve months of the act, neglect or default complained of. The Plaintiff, registered proprietor of Kajiado/Kaputei-South/2810, sued over the Standard Gauge Railway's compulsory acquisition of 1.659 Ha and the alleged severance and rendering unutilizable of the remaining portion, claiming special damages of Kshs. 325,490,138 against the 1st Defendant and compensatory damages against the 2nd Defendant. She argued the ouster clauses were unconstitutional impediments to access to justice under Article 48, relying on Kenya Bus Service Ltd and Ubah Ismail Mohamed, and that she had in fact issued a notice through her advocate on 28th June, 2018. The court held that failure to issue the thirty days' notice, if at all, was not fatal to the suit, and that in any event a notice was received by the 1st Defendant on 6th July, 2018 before the suit was filed. On limitation, the court found the Plaint did not disclose when the cause of action arose, so it could not find the suit was filed outside the twelve-month period. The application was dismissed with costs.

Key legal issues

#
01

Whether non-compliance with the thirty days' notice requirement in Section 87(a) of the Kenya Railways Corporation Act renders the suit premature and liable to be struck out

Holding

Non-compliance with the notice requirement is not fatal to the suit; the ouster clause is an impediment to access to justice, and in any event the Plaintiff annexed a notice dated 28th June, 2018 which was received by the 1st Defendant on 6th July, 2018, before the suit was filed on 28th November, 2018

Reasoning

The court adopted the reasoning in Kenya Bus Service Ltd and Ubah Ismail Mohamed, holding that mandatory notice provisions cause hardship to ordinary claimants and violate Article 48 of the Constitution. It further found on the facts that a notice was in fact issued and received before filing, so no breach of Section 87(a) arose.

p. 3
02

Whether the suit was statute-barred under Section 87(b), which requires suits against the Corporation to be commenced within twelve months of the act, neglect or default

Holding

The court could not find the suit time-barred because the Plaint does not state when the cause of action arose or when the Plaintiff realised the remaining land could no longer be put to viable use

Reasoning

The court accepted the general principle from Iga v Makerere University that a time-barred suit must be rejected. However, on the pleadings, the Plaint did not disclose when the cause of action arose, making it inappropriate to conclude that the twelve-month period had expired.

p. 4

Legal principles established

#
  • Failure to issue the thirty days' notice required by Section 87(a) of the Kenya Railways Corporation Act is not fatal to a suit, the provision being an impediment to the constitutional right of access to justice under Article 48
  • Where the plaint does not disclose when the cause of action arose, the court cannot find the suit was filed outside the limitation period in Section 87(b) of the Kenya Railways Corporation Act

Court orders

#
  1. 1.The Application dated 30th October, 2020 is dismissed with costs
Jurisdiction invoked
Environment and Land Court jurisdiction over the land dispute; application brought under Section 87(a) & (b) of the Kenya Railways Corporation Act, Sections 1A, 1B and 3A of the Civil Procedure Act, and Order 2 Rule 15 and Order 51 of the Civil Procedure Rules, 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Catherine Njeri Majani v Kenya Railways Corporation & another [2021] KEELC 1919 (KLR)", Case Analysis (2021). Notice of Motion dated 30th October, 2020 in a suit commenced by Plaint dated 19th November, 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1919/eng@2021-09-24

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