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ELCDismissedEnvironment & Land Case E002 of 2021· [2023] KEELC 18561 (KLR)

Nazmudin Abdulali Shariff & 2 others v Kenya Railways Corporation

Environment and Land Court of Kenya
6 July 2023
10,537 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~42 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court dismissed a Kshs 50 million claim against Kenya Railways because the landowners lacked approval to build near a railway crossing and could not prove their losses.

What this practically means

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Executive summary

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Three brothers, registered joint proprietors of land parcel Bungoma/Municipality/608 on which they erected Shariff Centre mall, sued Kenya Railways Corporation after its officers, accompanied by police and local administration, announced on 3 February 2021 that the building would be demolished and marked it with 'X' signs, causing tenants to vacate. They sought declarations that the intended demolition and the defendant's acts were illegal, special damages for loss of income and repairs (Kshs 7,519,000 plus monthly income of Kshs 2,457,699), general and exemplary damages of Kshs 50,000,000, and a permanent injunction. The defendant maintained the property falls within the 300-feet 'visibility diamond' of a railway level crossing, that developments there require the Managing Director's approval under the Kenya Railways Corporation Act and the Engineering Manual, and that the plaintiffs never obtained such approval. Cherono J framed three issues and dismissed the suit. The court held the losses were incurred by Shariff Centre Limited, a separate legal entity, not the plaintiffs; that no tenancy agreements, receipts, licences or tax returns proved the claimed income; that the bill of quantities was inadmissible as its maker was not shown to be a registered quantity surveyor; and that the plaintiffs, whose property fell within the visibility diamond, required but never obtained the defendant's approval. The defendant's notices were held to be lawful exercises of its statutory mandate. The suit was dismissed with costs and the temporary injunction vacated.

Key legal issues

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01

Whether the plaintiffs proved entitlement to special damages

Holding

Special damages not proved; losses belonged to Shariff Centre Limited, a separate legal entity, and no tenancy agreements, receipts, licences or tax returns were produced

Reasoning

The 1st plaintiff confirmed Shariff Centre Limited ran the premises but produced no agency agreement. Documents evidencing losses were in the company's name. No tenancy agreements or proof of rent payment existed; subletting without consent under Section 55 of the Land Registration Act and without written contracts under Section 3(3) of the Law of Contract Act undermined the claim.

p. 13
02

Whether the bill of quantities was admissible and reliable

Holding

Declined; the maker was not shown to be a registered quantity surveyor and the figures were unsupported

Reasoning

PW3 failed to produce his practising certificate or registration as required under the Architects and Quantity Surveyors Act. Even if admissible, the report had no evidentiary value: the plaintiffs' own letters confirmed premises were fit for occupation, no photos of interior damage were produced, and market-rate figures were not supported by documentation.

03

Whether the plaintiffs required the defendant's approval to develop the suit property

Holding

Yes; the property falls within the 300-feet visibility diamond and no approval was obtained

Reasoning

Section 16 of the Kenya Railways Corporation Act read with Section 7 of the Engineering Manual creates a requirement for approval from the Managing Director before erecting structures within the visibility diamond. The court took judicial notice from photographs that the suit property falls within the visibility diamond, and the plaintiffs admitted not knowing what a PDP was.

p. 12
04

Whether the defendant's acts were illegal and damages/exemplary relief warranted

Holding

No; the defendant acted under its statutory mandate after issuing public notices, and the plaintiffs were aware of the intended reclamation

Reasoning

Sections 8(2), 13, 16 and 20 of the Kenya Railways Corporation Act oblige the defendant to maintain safety and level crossings. Notices were published in newspapers and discussed between the plaintiffs and Faulu Bank a month before the alleged broadcast, so the plaintiffs were not taken by surprise.

Legal principles established

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  • Developments within 300 feet of a railway level crossing (the visibility diamond) require prior approval of the Managing Director of Kenya Railways Corporation
  • Special damages must be specifically pleaded and strictly proved
  • A report by an unregistered quantity surveyor without a practising certificate is inadmissible expert opinion
  • Loss of income claims require proof of the income through agreements, receipts, licences and financial records

Court orders

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  1. 1.The plaintiffs' suit is dismissed with costs
  2. 2.The temporary injunction orders issued pending the hearing of the suit are vacated

Authorities

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Legislation

  • Kenya Railways Corporation ActCap 397, Sections 8(2), 13(1), 14, 16, 20
  • East African Railways and Harbours Engineering Manual Volume 1 (1962)Section 7
  • Evidence ActSections 107, 108
  • Land Registration ActSections 2, 55
  • Land ActSection 2
  • Law of Contract ActSection 3(3)
  • Civil Procedure ActSection 27
  • Architects and Quantity Surveyors ActSection 8
  • Constitution of KenyaArticle 40

Cases cited (23)

  • Park Towers Limited v John Mithamu Njoka & 7 Others
    (2014) eKLR

    Cited by plaintiffs in support of their claim

  • John Chumia Nganga v Attorney General & Another
    Thika ELC No 264 of 2017 (UR)

    Cited by plaintiffs on damages

  • Ajit Bhogar Singh v Kenya Power & Lighting Company Limited
    Mombasa ELC Case No 276 of 2006

    Cited by plaintiffs on damages

  • Salomon v Salomon & Co. Ltd
    (1897) AC 22

    Separate legal personality of a company

  • Justine Nyambu v Jaspa Logistic
    (2017) KLR

    Exceptions to the corporate veil rule and need for formal application

  • Omar Naaman Omar v John Muasya Ngumu
    (2007) KLR Civil Appeal No 150 of 2000

    Courts act only when jurisdiction is properly invoked by formal application

  • In the matter of Independent Electoral Commission
    (2011) eKLR

    Courts derive powers from the law and cannot arrogate powers without proper invocation

  • Owners of the Motor Vessel 'Lillian S' v Caltex Oil (K) Ltd
    (1989) KLR

    Jurisdiction must be founded on law

  • Makula International Ltd v His Eminence Cardinal Nsubuga and Another
    (1982) HCB II

    Court cannot found a claim on illegality

  • Macfoy v United Africa Company Ltd
    (1961) 3 All ER 1169

    Illegality renders contracts unenforceable

  • Birket v Arcon Business Machines Ltd
    (1999) 2 All ER 429

    Illegality principle

  • Silverbird Kenya Limited v Junction Limited & 3 Others
    (2013) eKLR

    Proof of loss of income

  • John Michael Wanjao v Alubala Abenayo Andambi
    (2011) KLR

    Proof of loss of income

  • Great Lakes Transport Co. (U) Ltd v Kenya Revenue Authority
    (2009) KLR

    Proof of income before claiming loss

  • Africa Gospel Church Chebocho v Paul Mutai
    (2017) KLR

    Proof of income before claiming loss

  • Sarnager Singh Hayer & Another v Kenya Railways Corporation
    (2021) KLR

    Proof of income before claiming loss

  • Ali Kolela Montet v China Roads & Bridge Corporation (K)
    (2022) KLR

    Qualifications of expert witnesses

  • Christopher Ndaru Kagina v Esther Mbandi Kagina & Another
    (2016) KLR

    Expert witness qualifications

  • Kenya Power and Lighting Company Limited v Phillip A M Kimondiu
    (2018) eKLR

    Definition of general damages; special damages must be strictly proved

  • Godfrey Julius Ndumba Mbogori & Another v Nairobi City County
    (2018) eKLR

    Definition of exemplary and aggravated damages

  • Mbuthia Macharia v Annah Mutua & another
    (2017) eKLR

    Legal and evidential burden of proof

  • Leonard Gethoi Kamweti v National Bank of Kenya Limited
    (2020) eKLR

    Limited categories for award of exemplary damages

  • Stroms Brucks Aktie Bolag v Hutchison
    (1905) AC 515

    Distinction between special and general damages

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land parcel Bungoma/Municipality/608

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nazmudin Abdulali Shariff & 2 others v Kenya Railways Corporation", Case Analysis (2023). Environment & Land Case E002 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18561/eng@2023-07-06

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