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ELCPartially Allowed· [2023] KEELC 738 (KLR)

Harambee Children Therapy Centre Kinderhilfsprojekte v Kenya Railways Corporation & 3 others (Environment & Land Case 1391 of 2016) [2023] KEELC 738 (KLR)

Not expressly stated in the judgment (name of court omitted)
9 February 2023
5,019 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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A buyer of Dandora plot that was actually Kenya Railways reserve land got her money back plus damages, but lost the land itself.

What this practically means

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Executive summary

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The Plaintiff purchased Plot No. 107 Dandora Phase II Extension from the 4th Defendant for Kshs 2,600,000 by agreement dated January 25, 2016, intending to run a disabled children's centre. The 1st Defendant (Kenya Railways) issued notices and demolished the Plaintiff's structures in August 2018 to upgrade the railway line. The Plaintiff sought declarations of ownership, a permanent injunction, general, exemplary and punitive damages, special damages of Kshs 20,639,600, and alternatively a refund of the purchase price and land rates. The court framed five issues: proprietorship, lawfulness of the demolition, entitlement to relief, the 4th Defendant's counterclaim, and costs. The court found that the land had been reserved for Kenya Railways under Legal Notice No. 440 of 1963 and was demarcated as the Dandora Railways Station Reserve on survey plans; the Plaintiff adduced no evidence to controvert this. The 4th Defendant therefore had no title to pass, rendering the sale a nullity. The demolition was held procedural and lawful since notices were issued and the structures lacked the 1st Defendant's approval. The Plaintiff's suit succeeded only on the alternative prayers: refund of the purchase price of Kshs 2,600,000 and general damages of Kshs 2,000,000, both payable by the 4th Defendant. The claims against the 1st and 3rd Defendants were declined, as was the 4th Defendant's counterclaim because Hellen Omwenga was not a party. The 4th Defendant was ordered to bear the costs of the suit.

Key legal issues

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01

Lawful proprietorship of the suit property

Holding

The 1st Defendant (Kenya Railways) is the lawful proprietor; the property was railway reserve not available for allocation

Reasoning

The 1st Defendant produced drawings, maps and plans from the Survey of Kenya and its own records showing the land demarcated and alienated as the Dandora Railways Station Reserve, reserved vide Legal Notice No. 440 of 1963 under the Kenya Railways Corporation Act. The Plaintiff adduced no cogent evidence to controvert this. The 4th Defendant, as vendor, had no title to pass and the transaction was a nullity.

p. 9
02

Whether the 1st Defendant's demolition was lawful and procedural

Holding

Yes; notices were issued and the structures were erected without the 1st Defendant's authority

Reasoning

The court perused the notices to vacate dated October 4, 2016 and July 19, 2018 and the physical marking of structures in August 2018. The Plaintiff's witnesses conceded a public notice was issued. The structures were erected without the 1st Defendant's authority and approval, so the demolition was procedural and lawful.

p. 9
03

Whether the Plaintiff is entitled to the prayers sought

Holding

Partially; the alternative prayers succeeded - refund of purchase price and general damages of Kshs 2,000,000 from the 4th Defendant

Reasoning

Since the suit property was not available for allotment, the alternative relief (refund) applied. The court, having considered the cited authorities on exemplary damages, awarded general damages of Kshs 2,000,000 against the 4th Defendant. Claims against the 1st and 3rd Defendants were declined as the 1st Defendant's actions were lawful.

p. 10
04

Whether the 4th Defendant's counterclaim succeeds

Holding

No; the counterclaim was declined because Hellen Omwenga, from whom she purchased, was not a party

Reasoning

The 4th Defendant purchased the property from Hellen Omwenga and sought relief in respect of that transaction. The counterclaim could only succeed against Hellen Omwenga, who was not joined as a party to the suit. The reliefs sought in the counterclaim dated June 29, 2021 were therefore declined.

p. 10
05

Costs

Holding

Costs follow the event; the 4th Defendant bears the costs of the suit

Reasoning

The general rule is that costs follow the event. Since the Plaintiff succeeded in the alternative prayers pleaded, which lie against the 4th Defendant, the 4th Defendant was directed to bear the costs of the suit.

p. 10

Legal principles established

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  • A vendor without title cannot pass title; a sale of property not available for allocation is a nullity
  • A purchaser of land from a prior owner bears the risk where the land is reserve land not available for allocation; the prior owner's lack of title defeats the plaintiff's claim

Court orders

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  1. 1.Refund of the Plaintiff's purchase price of Kshs 2,600,000/-
  2. 2.General damages payable to the Plaintiff by the 4th Defendant of Kshs 2,000,000/-
  3. 3.The Plaintiff's claim against the 1st and 3rd Defendants is declined
  4. 4.The 4th Defendant shall bear the costs of the suit

Authorities

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Legislation

  • Legal Notice No. 440 of 1963First Schedule
  • Kenya Railways Corporation ActNot specified

Cases cited (4)

  • Stelco Properties Limited & Another –Vs- Njugi Ventures Limited & Another
    (2021) eKLR
  • Isaiah M'Mugambi M'mukatha –Vs- Attorney General & 2 others
    (2016)
  • Munyu Maina –Vs- Hiram Gathiha Maina
    (2013) eKLR
  • Kuria Kiarie & 2 others –Vs- Sammy Magere
    (2018) eKLR
Jurisdiction invoked
Not expressly stated in the judgment

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, "Harambee Children Therapy Centre Kinderhilfsprojekte v Kenya Railways Corporation & 3 others (Environment & Land Case 1391 of 2016) [2023] KEELC 738 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/738/eng@2023-02-09

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