County Government of Mombasa v Kenya Railways Corporation & another (Environment and Land Petition E002 of 2023) [2025] KEELC 5639 (KLR)
The bottom line
#Mombasa's County Government lost its case against Kenya Railways because it filed a normal land dispute as a constitutional petition.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition raises a constitutional question
It does not; the dispute concerns development control and approval compliance, an ordinary civil dispute wrongly clothed as a constitutional petition
The court examined the three intergovernmental letters and paragraphs 4 to 22 of the petition and found no specific allegations of constitutional infringement. References to Article 10, Article 27 and the Fourth Schedule were generalised and did not meet the Anarita Karimi Njeru precision requirement. The dispute was about failure to obtain development approvals and payments under the Physical and Land Use Planning Act, actionable through ordinary processes.
Locus standi of the petitioner
The 2nd respondent's objection on locus standi was rejected; the petitioner was protecting constitutional functions, not bill of rights rights
Relying on Meru County Government v EACC, the court noted state organs may sue inter se to protect their constitutional competencies. The petition sought to protect the petitioner's planning functions under the Fourth Schedule and the Physical and Land Use Planning Act, not bill of rights protections. The 1st respondent raised no locus standi objection, and the 2nd respondent is a private company.
Proper forum and remedy
The petition was struck out but with liberty to file an ordinary suit
Having found no constitutional question, the court held it need not determine the remaining issues. The petitioner was commendably pursuing compliance but chose the wrong procedural vehicle. The court preserved access to justice by granting liberty to commence the claim through an ordinary suit in accordance with applicable laws.
Legal principles established
#- A petitioner must set out with reasonable precision the constitutional provisions alleged to have been infringed and the manner of infringement; vague or generalised claims are insufficient
- An ordinary civil dispute cannot be converted into a constitutional petition; doing so does not invoke the court's constitutional jurisdiction
- State organs may sue inter se to protect competencies and functions accorded to them by the Constitution
Court orders
#- 1.The petition dated 21st November 2023 is struck out for want of a constitutional question or issue
- 2.Each party to bear its own costs in the petition
- Jurisdiction invoked
- Constitution of Kenya, 2010 (constitutional jurisdiction of the High Court/ELC); Physical and Land Use Planning Act, 2019
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "County Government of Mombasa v Kenya Railways Corporation & another (Environment and Land Petition E002 of 2023) [2025] KEELC 5639 (KLR)", Case Analysis (2025). Petition dated 21st November 2023 (ELC Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5639/eng@2025-07-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.