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ELCPartially Allowed· [2026] KEELC 769 (KLR)

Ngara Railways Southern Zone Residents Association v Kenya Railways Staff Retirement Benefits Scheme & another; Kenya Railways Corporation & another (Interested Parties) (Environment and Land Petition E031 of 2025) [2026] KEELC 769 (KLR)

Environment and Land Court
5 February 2026
2,048 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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The Kajiado Environment and Land Court blocked the eviction of residents on LR No. 209/19382 but threw out their contempt claim for lack of proof.

What this practically means

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Executive summary

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The Petitioners, residents and occupants of LR No. 209/19382 (retirees, their families and persons holding leases and licences), filed a constitutional petition alleging threatened eviction by the 1st Respondent without due process. Two applications were canvassed together with a Preliminary Objection: a Notice of Motion dated 30th April 2025 seeking interlocutory injunctive relief, and a Notice of Motion dated 16th May 2025 seeking contempt sanctions for eviction notices allegedly issued the same day status quo orders were granted. The Preliminary Objection invoked res judicata (Milimani Constitutional Petition No. 468 of 2016 and Milimani ELC Case No. 138 of 2018), sub judice (Milimani ELC 031 of 2025) and failure to exhaust remedies. Applying Mukisa Biscuits and related authority, the court held res judicata was not established because the Respondents produced no pleadings, proceedings or final judgment, and the tribunal could not handle eviction, injunction or constitutional issues; the objection was dismissed. Applying Giella v Cassman Brown, the court found the Petitioners' occupation undisputed, eviction threatened, and no evidence of due process; loss of shelter would not be compensable in damages, so a temporary injunction issued restraining eviction and interference with occupation pending determination of the Petition, on condition the Petitioners continue paying dues under their leases. On contempt, applying Mutitika and Sheila Cassatt Issenberg, service and knowledge of the order were not conclusively demonstrated and the quasi-criminal standard was not met; the contempt application was dismissed, with a warning that future breach would attract sanctions. Costs were ordered to abide the outcome of the Petition.

Key legal issues

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01

Whether the Preliminary Objection on res judicata, sub judice and failure to exhaust remedies has merit

Holding

The Preliminary Objection fails; res judicata was not proved and constitutional issues of threatened eviction, housing rights and procedural fairness fall outside the tribunal's competence.

Reasoning

Relying on Mukisa Biscuits and Khaemba, the court noted res judicata requires factual inquiry unsuited to a preliminary objection. The Respondents, bearing the burden, produced no pleadings, proceedings or final judgment to show identical parties, issues and final determination; the cited Milimani matter was said to be the same case as this Petition. On exhaustion, the available remedies concern pension benefits, not eviction, injunctions or constitutional questions.

p. 4
02

Whether the Petitioners satisfied the test for an interlocutory injunction

Holding

Yes - a temporary injunction restraining eviction and interference with occupation was granted pending determination of the Petition.

Reasoning

Applying Giella v Cassman Brown and Nguruman, the court found the Petitioners' occupation under arrangements recognized by the Respondent undisputed, eviction threatened, and the Respondents produced no evidence of due process for eviction. Eviction would cause loss of shelter and displacement of families not compensable in damages, so irreparable harm and the balance of convenience favoured preserving the status quo.

p. 5
03

Whether contempt of court was proved against the Respondents for issuing eviction notices on the same day status quo orders were granted

Holding

No - contempt was not proved to the required standard; the application was dismissed but the Court warned that future breach would attract sanctions.

Reasoning

Applying Mutitika and Sheila Cassatt Issenberg, the court held contempt is quasi-criminal and requires proof, beyond the balance of probabilities, of service or personal knowledge of the order and willful, deliberate disobedience. Since service and knowledge were contested and not conclusively demonstrated, doubt was resolved in favour of the alleged contemnors.

p. 5

Legal principles established

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  • A preliminary objection must be a pure point of law and cannot be entertained where facts are disputed or require evidence; res judicata is best raised by Notice of Motion with pleadings annexed.
  • The burden of proving res judicata lies on the party raising it, who must establish identity of parties, issues and a final determination.
  • The standard of proof in contempt proceedings is higher than the balance of probabilities, almost but not exactly beyond reasonable doubt.
  • Contempt requires proof that the contemnor knew of the order and willfully and deliberately disobeyed it.

Court orders

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  1. 1.The Preliminary Objection is dismissed.
  2. 2.A temporary injunction is issued restraining the Respondents from evicting the Petitioners or interfering with the Petitioners' occupation pending hearing and determination of the Petition.
  3. 3.The Petitioners shall continue to pay dues to the Respondents in accordance with the respective leases.
  4. 4.The contempt application dated 16th May 2025 is dismissed.
  5. 5.Costs to abide the outcome of the Petition.

Authorities

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Legislation

  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 40 Rule 1 (a) and (b)

Cases cited (8)

  • Mukisa Biscuits
  • Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others
    Civil Application No. 36 of 2014 [2015] eKLR
  • Henry Wanyama Khaemba v Standard Chartered Bank Ltd & Another
    (2014) eKLR
  • George Kamau Kimani & 4 Others v County Government of Trans Nzoia & Another
    (2014) eKLR
  • Giella v Cassman Brown & Company Limited
    [1973] E.A. 358
  • Nguruman Limited v Jan Bonde Nielsen & 2
  • Mutitika v Baharini Farm Limited
    [1985] KLR 229, 234
  • Sheila Cassatt Issenberg & another v Antony Machatha Kinyanjui
    [2021] eKLR
Jurisdiction invoked
Original constitutional petition jurisdiction; not expressly stated in the judgment

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, "Ngara Railways Southern Zone Residents Association v Kenya Railways Staff Retirement Benefits Scheme & another; Kenya Railways Corporation & another (Interested Parties) (Environment and Land Petition E031 of 2025) [2026] KEELC 769 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/769/eng@2026-02-05

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