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ELCPartially AllowedNot stated in the judgment (instituted 4/04/2013)

Kenya Railways Corporation v C. Dorman Limited (Environment and Land Case Civil Suit 1069 of 2015) [2025] KEELC 3871 (KLR)

Environment and Land Court
15 May 2025
2,534 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court ruled that Kenya Railways could not charge a business fees for railway services it no longer provided.

What this practically means

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Executive summary

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C. Dorman Limited sued Kenya Railways Corporation seeking a permanent injunction against eviction and attachment, and a declaration that it owed no Siding Fee or other fees under Clause 13 of the title deed to its suit property adjacent to the railway line. The Plaintiff's witness testified that it had paid Siding Fees for use of a cargo loading platform, but the platform ceased to be usable from the mid-1970s when railway services along the line stopped; payments made thereafter were made under a mistake, and the Plaintiff stopped paying in the mid-1990s. The Defendant's witness, a surveyor, conceded in cross-examination that Clause 13 of the title deed does not mention Siding Fees, that no agreement supported the fee, and that there was no evidence the Defendant had rendered any loading service to the Plaintiff as required by Section 13(2) of the Kenya Railways Corporation Act. The court framed three issues: whether the Siding Fee was properly charged, whether the Plaintiff was entitled to the orders sought, and who bears costs. The court held it was improper for the Defendant to insist on payment for a non-available service, and that the Plaintiff had no obligation to pay for what was not provided, proving its claim on a balance of probability. On costs, although costs ordinarily follow the event under Section 27(1) of the Civil Procedure Act, the court directed that each party bear its own costs because the Defendant is a public institution. Judgment delivered at Thika on 15 May 2025.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Defendant was right in charging the siding fee
  2. 2.Whether the Plaintiff is entitled to the orders sought in the Plaint
  3. 3.Who pays the cost of this suit?

Key legal issues

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01

Whether the Defendant was entitled to charge the Siding Fee under Clause 13 of the title deed

Holding

The Defendant was not entitled to charge the Siding Fee. Clause 13 of the title deed relates to taxes, duties and outgoings imposed by government or local authority, and does not mention Siding Fees; and under Section 13(2)(f) of the Kenya Railways Corporation Act any fee must be pegged on a service performed or facility used, none of which was provided.

Reasoning

DW1 conceded in cross-examination that Clause 13 does not mention Siding Fees and that there was no evidence the Defendant rendered loading services to the Plaintiff or currently renders such services. The Plaintiff's correspondence seeking the legal basis of the fee was unanswered. The Defendant's own Defence and witness statement admitted payment of the fee was dependent on provision of a cargo loading platform, which had been unusable since the mid-1970s.

p. 4
02

Whether the Plaintiff was entitled to the orders sought in the Plaint

Holding

The claim was proved on a balance of probability in respect of the declaration sought; the Plaintiff has no obligation to pay fees for services not provided.

Reasoning

The court found the Plaintiff's evidence unrebutted that the railway platform had not been usable since the mid-1970s and that payments were made under a mistake. The Defendant failed to adduce evidence of service rendered as required by Section 13(2) of the Kenya Railways Corporation Act, so the claim on liability for the fee succeeded.

p. 5
03

Who bears the costs of the suit

Holding

Although the Plaintiff succeeded and costs would normally follow the event, the court exercised its discretion under Section 27(1) of the Civil Procedure Act to direct each party to bear its own costs because the Defendant is a public institution.

Reasoning

Relying on Section 27(1) of the Civil Procedure Act and Morgan Air Cargo Limited v Everest Enterprises Limited, the court noted costs are discretionary and depend on the circumstances of each case. Here the Defendant is a public institution, which the court took as good reason to depart from the general rule.

p. 5

Legal principles established

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  • A statutory corporation may only levy a fee for a service it performs or a facility it provides; it cannot insist on payment for a non-available service.
  • Costs follow the event under Section 27(1) of the Civil Procedure Act, but the court retains discretion to order otherwise for good reason.

Court orders

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  1. 1.A declaration that the Plaintiff owes the Defendant no Siding Fee or other fees, since no services were being provided by the Defendant
  2. 2.Each party to bear their own costs of the suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original civil suit; no constitutional or statutory jurisdictional provision expressly invoked

Relief refused

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Permanent injunction restraining the Defendant from evicting the Plaintiff, attaching its property, or alienating or destroying it

The court held the claim proved on the fee question and awarded costs, but the final orders do not expressly grant the injunctive relief sought

p. 5

Costs

Each party to bear their own costs of the suit; the court noted the Defendant is a public institution and therefore declined to award costs despite the Plaintiff's success.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

This being the case, it was not proper that the Defendant insists that the Plaintifi pays a fee for a non-available service.
p. 4Levy of fees conditional on service provided
since there were no services being provided by the Defendant, then the Plaintifi has no obligation to pay for what was not being provided.
p. 4Holding on entitlement to the prayers sought
Whereas I would have readily awarded costs I note that the Defendant is a public institution and I will therefore direct that each party bears their own cost of the suit.
p. 5Costs discretion - final orders
Finally the Plaintifi has proved their case on a balance of probability against the Defendant and each party to bear their own cost of the suit.
p. 5Disposition and standard of proof

Issues in the judgment

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minor

Clause 13 of the title deed is quoted twice with materially different wording: once as 'The Grantee shall pay such taxes duties assessments or outgoings' and once as 'The guarantee shall pay such taxes clients assessment or outgoing'

minor

Judgment refers to 'Costs of Originating Summons dated 9th June, 2009' although the suit is described as a plaint instituted on 4/04/2013

minor

DW1 is described as Surveyor at the 'Respondent's Company' although the matter is a first-instance suit, not an appeal

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, "Kenya Railways Corporation v C. Dorman Limited (Environment and Land Case Civil Suit 1069 of 2015) [2025] KEELC 3871 (KLR)", Case Analysis (2025). Not stated in the judgment (instituted 4/04/2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3871/eng@2025-05-15

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