Nazmudin Abdulali Shariff & 2 others v Kenya Railways Corporation
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the plaintiffs proved entitlement to special damages
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
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.
Whether the bill of quantities was admissible and reliable
Declined; the maker was not shown to be a registered quantity surveyor and the figures were unsupported
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.
Whether the plaintiffs required the defendant's approval to develop the suit property
Yes; the property falls within the 300-feet visibility diamond and no approval was obtained
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.
Whether the defendant's acts were illegal and damages/exemplary relief warranted
No; the defendant acted under its statutory mandate after issuing public notices, and the plaintiffs were aware of the intended reclamation
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
#- 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
#- 1.The plaintiffs' suit is dismissed with costs
- 2.The temporary injunction orders issued pending the hearing of the suit are vacated
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land parcel Bungoma/Municipality/608
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Shariff & 2 others v Kenya Railways Corporation (Environment & Land Case E002 of 2021) [2024] KEELC 5117 (KLR)[2024] KEELC 5117 (KLR)4 Jul 2024
Cite this brief
#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.