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ELCDismissedNotice of Motion application dated 28th July 2025· [2026] KEELC 2285 (KLR)

Gatheru & another v Kenya Railways Corporation & another (Environment and Land Case 929 of 2017) [2026] KEELC 2285 (KLR)

Environment and Land Court
23 April 2026
2,095 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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Landowners in a Kenya Railways case cannot switch their lawsuit to a compensation claim — only Kenya's Land Acquisition Tribunal can decide compensation for compulsorily acquired land.

What this practically means

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Executive summary

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This Environment and Land Court ruling by M.D. Mwangi J dismisses a Notice of Motion dated 28th July 2025 by the Plaintiffs, owners of land L.R. No. Kajiado/ntashart/263 in Kimuka Area, brought against Kenya Railways Corporation and China Communications Construction Company Limited. The Plaintiffs, whose land was bisected by construction of the Standard Gauge Railway, sought leave to amend their Plaint of 14th November 2017 (originally a trespass claim) to claim compensation of Kshs. 21,735,000.00, join the National Land Commission, and have the dispute referred to the Land Acquisition Tribunal. They relied on a Valuation Report by COG Consultants Limited and a Surveyor's Report by Geomatic Services Limited showing 7.064 acres rendered inaccessible and 0.488 hectares uneconomical. Kenya Railways opposed, arguing the claim for trespass had been held by the Court of Appeal in Civil Appeal No. 97 of 2018 (judgment of 10th May 2019) to have been overtaken by compulsory acquisition, and that the Court lacked jurisdiction over compensation claims. The 2nd Respondent withdrew its preliminary objection. The Court framed a single issue of jurisdiction. Applying the Lillian S and Samuel Kamau Macharia decisions on jurisdiction, and holding that Section 133C(6) of the Land Act ousts the Court's original jurisdiction over compulsory acquisition matters in mandatory terms, the Court found it could not entertain the proposed compensation claim. Relying on Mutanga Tea, it refused the amendment. Referral to the Tribunal was also refused since the claim before the Court remained one for trespass. The application was dismissed in its entirety with costs on 23rd April 2026.

Key legal issues

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01

Whether the Court has jurisdiction to allow amendments introducing a claim for compensation for compulsory acquisition

Holding

The Court lacks jurisdiction; compensation for compulsory acquisition is within the exclusive first-instance jurisdiction of the Land Acquisition Tribunal under Section 133C(6) of the Land Act, and no amendment can introduce a claim the Court cannot entertain.

Reasoning

The proposed amendment would fundamentally alter the dispute from trespass to compensation for compulsory acquisition. Section 133C(6) of the Land Act, couched in mandatory terms with a non-obstante clause, ousts the Court's original jurisdiction and designates the Tribunal as the court of first instance. Applying Mutanga Tea, a party cannot amend pleadings to introduce a cause of action the Court had no jurisdiction to entertain. The amendment prayer therefore fails.

p. 5
02

Whether the suit should be referred to the Land Acquisition Tribunal

Holding

Referral is refused because the claim actually before the Court remains a claim for trespass; there is nothing before the Court to refer.

Reasoning

Having declined the amendment, the suit before the Court remains the original trespass claim. The Court found no basis for referring the matter to the Tribunal even if it had the power to do so, leaving the Plaintiffs to rethink their litigation strategy in light of the Court of Appeal's observation that the trespass claim had been overtaken by compulsory acquisition.

Legal principles established

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  • A party cannot amend pleadings to introduce a cause of action that the court has no jurisdiction to entertain in the first place.
  • Section 133C(6) of the Land Act, in mandatory terms and with a non-obstante clause, ousts the High Court/ELC's original jurisdiction over matters relating to compulsory acquisition of land, making the Land Acquisition Tribunal the court of first instance.
  • Jurisdiction is the first question a court must answer before taking any further step in a suit.

Court orders

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  1. 1.The Notice of Motion application dated 28th July 2025 is dismissed in its entirety with costs
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 1 Rule 15(1) of the Civil Procedure Rules, 2010; jurisdiction examined against Section 133C of the Land Act, No. 6 of 2012

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, "Gatheru & another v Kenya Railways Corporation & another (Environment and Land Case 929 of 2017) [2026] KEELC 2285 (KLR)", Case Analysis (2026). Notice of Motion application dated 28th July 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2285/eng@2026-04-23

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