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ELCDismissedNot stated in judgment· [2023] KEELC 520 (KLR)

Kamau & another v Kenya Railways Corporation & 2 others (Environment & Land Case 23 of 2022) [2023] KEELC 520 (KLR)

Environment and Land Court
2 February 2023
1,676 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Kenya Railways failed to escape a land dispute lawsuit because its possible role in the issue must be tested at a full trial, not decided on paperwork.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (Mwangi Njoroge, Judge) determined the 1st defendant's (Kenya Railways Corporation) notice of motion dated June 21, 2022 seeking striking out of its name from the suit and dismissal of the suit against it, with costs. The applicant argued the suit disclosed no cause of action against it since management of high voltage power lines fell outside its statutory mandate under the Kenya Railways Corporation Act, that it could not be vicariously liable for the contractors of the power lines, and that the suit filed in May 2022 over a 2019 alleged trespass was time barred under section 87 of that Act, relying inter alia on Joseph Nyamamba & 4 others v Kenya Railways Corporation. The plaintiffs opposed, asserting the 1st defendant was actively involved in constructing and connecting the power lines and that a November 12, 2021 letter from the 3rd defendant acknowledged the power line was a private line done by the SGR contractor. The 3rd defendant filed grounds of opposition maintaining the 1st defendant was a necessary party. Framing the single issue as whether the 1st defendant was a necessary party, the court applied Order 2 Rule 15 of the Civil Procedure Rules and found the plaint, annexed correspondence and the 3rd defendant's defence disclosed the 1st defendant's nexus to the claim and raised triable issues resolvable only at trial. The application was dismissed with costs and the parties directed to comply with Order 11 and attend pre-trial mention on February 27, 2023.

Key legal issues

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01

Whether the 1st defendant is a necessary party and whether a cause of action subsists against it

Holding

The application to strike out the 1st defendant was dismissed; the plaint, annexed correspondence and the 3rd defendant's defence show the 1st defendant's nexus to the alleged trespass, making it a necessary party.

Reasoning

The court examined the plaint dated May 4, 2022, correspondence including Kenya Power's reply that the power line was a private line done by the SGR contractor, an unanswered demand letter to the 1st defendant, and the 3rd defendant's defence apportioning blame to the 1st defendant. These showed a nexus and raised triable issues that could only be resolved at trial, so striking out was not warranted under Order 2 Rule 15.

p. 4
02

Whether the suit is time barred against the 1st defendant under section 87 of the Kenya Railways Corporation Act

Holding

The limitation argument did not persuade the court to strike out the 1st defendant; the question of liability could only be determined at trial.

Reasoning

The 1st defendant argued that the alleged 2019 trespass rendered the May 2022 suit statute barred under section 87(b) of the Kenya Railways Corporation Act, relying on Joseph Nyamamba & 4 others v Kenya Railways Corporation. The plaintiffs contended the section could not override constitutional remedies. The court did not resolve limitation at the interlocutory stage, holding instead that triable issues required trial.

p. 4

Legal principles established

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  • A party should not be struck out from a suit where the pleadings disclose a nexus to the cause of action and raise triable issues; exoneration can only occur at trial.

Court orders

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  1. 1.The 1st defendant's application dated June 21, 2022 is dismissed with costs
  2. 2.Parties shall comply with Order 11 of the Civil Procedure Rules and attend a mention for pre-trial on February 27, 2023

Authorities

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Legislation

  • Kenya Railways Corporation Actsection 87 (incl. s.87(b))
  • Kenya Railways Corporation Actsection 8; section 13(2)(b)(c)
  • Energy ActNot specified
  • Civil Procedure Rules, 2010Order 2 Rule 15; Order 11

Cases cited (3)

  • Elijah Sikona & George Pariken Narok on Behalf of Trusted Society of Human Rights Alliance v Mara Conservancy & 5 others
    [2014] eKLR
  • Robert Ngairu Kaniaru and 2 others v Wilson Macharia Rukwaro
    [2016] eKLR
  • Joseph Nyamamba & 4 others v Kenya Railways Corporation
    [2015] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; application under Order 2 Rule 15 of the Civil Procedure Rules, 2010

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, "Kamau & another v Kenya Railways Corporation & 2 others (Environment & Land Case 23 of 2022) [2023] KEELC 520 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/520/eng@2023-02-02

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