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ELCDismissedELCLC Petition No. E095 of 2025

Ngugi & 5 others v Kenya Railways Staff Retirements Benefits Scheme & 2 others (Environment and Land Petition E095 of 2025) [2026] KEELC 2429 (KLR)

Environment and Land Court
29 April 2026
4,070 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court refused to punish Kenya Railways pension scheme officials for contempt and allowed an affordable housing project on disputed Makongeni land to continue.

What this practically means

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Executive summary

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This Environment and Land Court ruling by C.G. Mbogo, J, delivered virtually on 29th April 2026 in Petition No. E095 of 2025, determined a notice of motion dated 3rd December 2025 in which the petitioners sought to cite Isaac Sila (CEO) and Nancy Chemtai Sang (Board Chairperson) of the Kenya Railways Staff Retirement Benefits Scheme for contempt of orders issued on 24th November 2025, and further sought a conservatory order restraining any developments on Makongeni Estate, L.R No. 209/6829. The orders of 24th November 2025 had directed restoration of electricity and water services to residents and restrained evictions and demolitions. The 1st respondent's CEO swore a replying affidavit denying wilful breach, contending that the scheme had no control over utility suppliers, over the riot police present during demolitions, and that occupants had been served with vacation notices and ex-gratia compensation. The 3rd respondent filed grounds of opposition, including that the application was an omnibus one and that conservatory orders could not ride on a contempt application. The court applied the standard of proof for contempt from Gatharia K. Mutikika v Baharini Farm Limited and the Carey v Laiken elements of civil contempt, holding contempt quasi-criminal and requiring proof of wilful and deliberate disobedience. Taking judicial notice that the demolitions were state-sanctioned for the affordable housing project and carried out by state-ordered bulldozers with heavy police presence, and that the respondents could not restore utilities, the court found no wilful disobedience and exonerated the officials. Relying on Gatirau Peter Munya and the Gachagua bench ruling on conservatory orders, the court declined the conservatory order at the interlocutory stage given the public interest in the affordable housing project, noting that compensation could be ordered at the main hearing. The motion was dismissed with no orders as to costs.

Questions the Court framed

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

  1. 1.Whether the notice of motion dated 3rd December 2025 has merit

Key legal issues

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01

Whether the cited officials of the 1st respondent committed contempt of the orders issued on 24th November 2025

Holding

No contempt was established; the officials did not wilfully disobey the orders

Reasoning

The court took judicial notice that the demolitions were sanctioned by the state and carried out by state-ordered bulldozers with heavy police presence, which the 1st respondent's officials could not control. The respondents were also not responsible for, nor in control of, the entities supplying electricity and water, so they lacked capacity to restore the services as ordered. The standard of proof, being quasi-criminal, was not met.

p. 13
02

Whether a conservatory order should issue restraining development on the suit property pending determination of the petition

Holding

The conservatory order was refused at the interlocutory stage

Reasoning

Applying the Munya and Gachagua principles on conservatory orders, the court found a major public interest connotation because the suit property is earmarked for the government's affordable housing project. Since the court can order compensation at the main hearing for any genuinely affected uncompensated person, halting construction at the interlocutory stage was not warranted.

p. 16

Legal principles established

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  • Contempt of court is quasi-criminal in nature and must be proved to a standard higher than the balance of probabilities but not necessarily beyond reasonable doubt, consistent with the gravity of the charge
  • The applicant must prove wilful and deliberate disobedience of court orders to succeed in a contempt application

Court orders

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  1. 1.The notice of motion dated 3rd December 2025 is dismissed
  2. 2.No orders as to costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Articles 20, 22, 50(1), 159(2) and 258 of the Constitution of Kenya; Section 5 of the Judicature Act; Section 29 of the Environment and Land Court Act

Relief refused

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Citation of Isaac Sila and Nancy Chemtai Sang for contempt of the orders of 24 November 2025

No wilful and deliberate disobedience was proved to the required standard; the 1st respondent did not conduct the demolitions nor control the utility providers

p. 13

Conservatory order restraining any developments on Makongeni Estate, L.R No. 209/6829

Public interest in the affordable housing project; the court can order compensation at the main hearing if any genuine affected person was not compensated

p. 16

Costs

Dismissed with no orders as to costs

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.

From the above, I find no merit in the notice of motion dated 3rd December 2025, and it is hereby dismissed with no orders as to costs.
p. 16disposition
The petitioners/applicants must prove willful and deliberate disobedience of the court orders, if they are to succeed.
p. 10standard of proof in contempt proceedings
In my view, I find no wilful disobedience of the orders of this court by the 1st respondent’s cited officials, and this exonerates them of being cited for being guilty of contempt of court.
p. 13contempt finding
I decline to issue the conservatory order to prevent construction on the suit property at the interlocutory stage.
p. 16conservatory orders and public interest

Issues in the judgment

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minor

The 3rd respondent's identity and the full party listing are not stated in the ruling; the record mentions a 2nd petitioner (Collins Otieno), a 1st respondent and a 3rd respondent without naming all of them

minor

The petitioners' motion was expressed to cite officials of the 1st respondent for contempt, yet the ruling also records the 1st respondent itself as having sworn the replying affidavit

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, "Ngugi & 5 others v Kenya Railways Staff Retirements Benefits Scheme & 2 others (Environment and Land Petition E095 of 2025) [2026] KEELC 2429 (KLR)", Case Analysis (2026). ELCLC Petition No. E095 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2429/eng@2026-04-29

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