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ELCDismissedELC No. 289 of 2015 & ELC Civil Suit 290 of 2015 (Consolidated)· [2023] KEELC 22022 (KLR)

Mombasa Coffee Limited & another v Kenya Railways Corporation

Environment and Land Court at Mombasa
6 November 2023
SKS. M. Kibunja
3,246 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The Mombasa Environment and Land Court dismissed two lease-breach suits against Kenya Railways because the tenants could not produce evidence proving the breach.

What this practically means

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Executive summary

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Two consolidated suits (ELC No. 289 of 2015 by Mombasa Coffee Limited and ELC No. 290 of 2015 by Bico Limited) were brought against Kenya Railways Corporation, both plaintiffs being registered lessees of godown premises in Shimanzi, Mombasa. They alleged that under clauses 6 and 9 of their leases the defendant was obliged to provide suitable railway sidings, roads and drains serving the suit premises, but had breached the leases by allocating the sidings to a third party (said to be Grain Bulk Company Limited, a competitor), whose construction works blocked access and rendered their godown operations inoperative. They sought a declaration that the construction was illegal and null and void, a permanent injunction against interference with the sidings, a mandatory injunction to demolish structures on the sidings, and costs. The defendant denied breach, asserting ownership of the siding, that the railway had been redundant for over 30 years with the plaintiffs using road transport, that the plaintiffs' premises remained accessible by road, and that any allocation was made pursuant to section 13(2)(h) of the Kenya Railways Corporation Act. It urged dismissal with costs. The court framed three issues: breach, entitlement to relief, and costs. It held that the plaintiffs bore the burden of proving breach under sections 107, 108 and 112 of the Evidence Act and had failed to adduce credible evidence of breach or of the third party's presence, whose non-joinder the court noted. The railway had been replaced by the SGR, some leases had lapsed without renewal, and road access was undenied. Both suits were dismissed with costs to the defendant.

Key legal issues

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01

Whether the defendant breached clauses 6 and 9 of the leases by failing to provide/maintain railway sidings and by allocating them to a third party

Holding

No breach proved; plaintiffs adduced no credible evidence of breach or of the alleged third-party construction

Reasoning

The court found the leases were executed in the 1970s with the siding obligation to be met within six months of commencement. The railway became non-operational and was replaced by the SGR on a different route. The plaintiffs did not deny road access to their premises, and the alleged third party (Grain Bulk Company Limited) was never joined or proved by evidence. The burden of proof under sections 107, 108 and 112 of the Evidence Act lay on the plaintiffs, who failed to discharge it.

02

Whether the plaintiffs were entitled to the declaratory and injunctive reliefs sought

Holding

No; the suits were dismissed as the claim was not proved to the balance of probabilities

Reasoning

Entitlement to relief depended on proof of breach. The court found the plaintiffs accessed their premises by road without restriction, that the railway sidings had been redundant for over 30 years, and that some leases had lapsed without renewal. The alleged obstructing third party was mentioned only in cross-examination and not joined as a party. Consequently the declaration, permanent injunction and mandatory injunction all failed.

03

Costs

Holding

Defendant awarded costs in both suits

Reasoning

Section 27 of the Civil Procedure Act provides that costs follow the event unless good cause is shown for deviation. The court found no good cause to depart from that edict given the dismissal of both suits.

Legal principles established

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  • The burden of proving breach of a lease lies on the party asserting the breach, under sections 107, 108 and 112 of the Evidence Act.
  • Costs follow the event unless the court finds good cause to depart from that rule.

Court orders

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  1. 1.The plaintiff's suit in ELC No. 289 of 2015 is dismissed with costs.
  2. 2.The plaintiff's suit in ELC No. 290 of 2015 is also dismissed with costs.

Authorities

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Legislation

  • Kenya Railways Corporation ActSection 13(2)(h)
  • Evidence ActSections 107, 108, 112
  • Civil Procedure ActSection 27
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over lease and land disputes

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, "Mombasa Coffee Limited & another v Kenya Railways Corporation", Case Analysis (2023). ELC No. 289 of 2015 & ELC Civil Suit 290 of 2015 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22022/eng@2023-11-06

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