Kenya Railways Corporation v Omboto & another (Civil Appeal 78 of 2020) [2025] KECA 537 (KLR) (21 March 2025) (Judgment)
Neutral citation:
[2025] KECA 537 (KLR)
Republic of Kenya
Civil Appeal 78 of 2020
MSA Makhandia, P Nyamweya & LK Kimaru, JJA
March 21, 2025
Between
Kenya Railways Corporation
Appellant
and
Johannes Akelo Omboto
1st Respondent
Graduce Omboto Akelo
2nd Respondent
(Being an Appeal from the Judgment and Decree of the Environment and Land Court at Kisumu (Ombwayo, J.) dated 5th May 2020 in Petition No. 8 of 2019
Petition 8 of 2019
)
Judgment
1.This is an appeal filed by the Kenya Railways Corporation (“the appellant”) challenging the judgment and decree rendered by Ombwayo J. of the Environment and Land Court (“ELC”) of Kenya at Kisumu in Constitutional Petition No. 8 of 2019. The judgment and decree in question was delivered on the 5th day of May 2020.
2.The genesis of the appeal is that Johannes Akelo Omboto and Graduce Omboto Akelo (“the respondents”) filed a constitutional petition dated 15th August 2019 in the ELC against the appellant, the Cabinet Secretary, Ministry of Interior & Coordination of National Security, (“the Cabinet Secretary”); the Attorney General (“the AG”), Kenya Airports Authority (“the KPA”) and the National Land Commission (“the NLC”) jointly and severally seeking inter alia: a declaration that they were the bona fide registered proprietors of all that piece or parcel of land known as Kisumu Municipality/ Block 7/530, (“the suit property”) to the exclusion of the appellant, the Cabinet Secretary, and the KPA; a declaration that the decision by the Cabinet Secretary, and the KPA to destroy the respondents' perimeter wall and demolition of their buildings and structures on the suit property was unlawful and violated their social and economic rights under the constitution; a permanent injunction restraining the appellant and its agents from trespassing, demolishing or damaging the respondents' properties on the suit property; an order compelling the appellant, the Cabinet Secretary, and the KPA to compensate the respondents for the loss occasioned by the destruction and damage caused to their suit property; and costs and interest.
3.In their filings, the respondents stated that they were the registered proprietors of the suit property, having acquired it after purchase from Hodima Construction Company in 2005 and taken possession in 2006. However, out of the blues, the appellant laid a claim to it and demanded payment of rent from them. This demand led to the respondents filing Kisumu HCCC No. 53 of 2006, which was subsequently transferred to the ELC and re-numbered as 78 of 2015, which was still pending determination by the time the petition leading to this appeal was heard and determined. However, in 2009, the Commissioner of Lands, the predecessor to NLC, illegally and unilaterally cancelled the respondents' title to the suit property, prompting the respondents to commence judicial review proceedings against it in Kisumu HCC Misc. Application No. 25 of 2009. After hearing the parties, the trial court granted an order of prohibition barring the Commissioner of Lands from illegally or irregularly accepting or registering a lease over the suit property to any other person other than the respondents, which the Commissioner of Lands complied with, and the suit property, therefore, reverted to the respondents.
4.However, on the night of 14th August 2019, the Cabinet Secretary and KPA dispatched armed police officers to the suit property who destroyed the respondents’ perimeter wall around the suit property. They both contended that they were recovering the suit property and giving it to KPA, who was to operate a new port on the shores of Lake Victoria. The respondents further averred that they had not been served with any notice before the destruction or notice of compulsory acquisition nor compensated for the suit property. The respondents were fearful that the said cabinet secretary and KPA were hell bent on evicting them and their tenants from the suit property unless the court intervened.
5.They finally averred that the AG and NLC had failed to advise the government against the forceful appropriation of private property without compensation, thereby violating Articles 40, 43, and 47 of the constitution. On the basis of the foregoing, the respondents sought prayers already set out in paragraph two of this judgment.
6.Following the service of the petition on all the respondents, only the appellant answered and also filed a cross-petition. Its response was that the suit property consisted part of the un-surveyed land vested in the appellant by the Kenya Railways Corporation (Vesting Land) Order of 1986 courtesy of Legal Notice No. 24 of 1986, which transferred all land previously vested in or conveyed to the East African Railways Corporation to the appellant. The appellant further averred that the un-surveyed land lacked identification but was clearly marked and referred to as Railway Housing in early maps and records from the Survey of Kenya in the Ministry of Lands and Settlement. The land was never surrendered to the Government of Kenya for allocation to any party, including the respondents. That the appellant was not involved in the transfer of the suit property to Hodima Construction Company, thereby making the respondents' acquisition of the same illegal, fraudulent, and void. That if the respondents held any titles over the suit property different from long-term leases granted by the appellant, they must have been acquired illegally, and any developments thereon required the appellant's consent and approval, which was never granted. That the respondents had failed to demonstrate how the appellant violated their rights or caused them any loss. That the petition was therefore a right candidate for dismissal with costs to the appellant. Based on the foregoing, the appellant by way of cross-petition sought the cancellation, annulment, and or cancellation of the title in possession of the respondents.
7.Mr. Stanley Gitari, a Senior Legal Officer of the appellant, filed a supporting affidavit to the cross-petition, in which he attached the Kenya Railways Corporation (Vesting of Land) Order of 1986, indicating that the appellant held approximately 237 acres of land within Kisumu Municipality, including the suit property. He also attached copies of the Survey of Kenya plan FR 45/53 of 1935, the Uganda Railway Plan of 1908 and 1908 showing Railway boundaries, and the Registry Index Map for Kisumu Block 7, showing that the block is mainly a Railways operational area comprising the port, railway station, staff quarters, and port area. All these were meant to show that the suit property did not belong to the respondents but to the appellant, and the title in possession of the respondents was acquired fraudulently. That the NLC illegally created the 0.5550 HA parcel excised from the portion vested in the appellant. That the suit property was, therefore, a creature of fraud, void and of no legal effect, and the appellant gave the particulars of fraud. The appellant then prayed that the cross petition be allowed. The respondents subsequently filed a supplementary affidavit sworn by the 1st respondent, detailing the loss and damage occasioned by the actions of the Cabinet Secretary and KPA.
8.After considering the evidence before it, the trial court held that the respondents remained the registered proprietors of the suit property, pending the outcome of ELC No. 78 of 2015. That though the appellant demonstrated that the suit property was vested in it, meant for public use, and not available for private allocation, however, it did not sufficiently prove fraud or illegality on the part of the respondents. The appellants' actions, including the destruction of the respondents’ perimeter wall without notice, violated the respondents' constitutional rights under Articles 40, 43, and 47 of the constitution. The respondents were then awarded general damages of Kshs. 5,000,000.00 for the violations and compensation for the loss of monthly rental income in the sum of Kshs. 473,974.00 from 14th August 2019 to the date of judgment. As to the cross- petition, the trial court found that the suit property was part of un- surveyed land vested in the appellant and that the acquisition of title by the respondents was illegal, null, and void. However, it never granted the prayer for annulment, termination, and or cancellation of the title as sought by the appellant.
9.Dissatisfied with the judgment and decree, the appellant lodged this appeal on the grounds that the ELC erred in law and fact by: concluding that the appellants did not sufficiently demonstrate fraud and illegality on the part of the respondents; finding that the actions of the cabinet secretary and KPA were under the appellant's auspices; determining that the respondents were entitled to compensation for breach of their constitutional rights under Articles 40, 43, and 47, despite acknowledging that the respondents' acquisition of title was illegal, null, and void; and lastly, failing to consider the appellants' evidence.
10.In response, the respondents filed a cross-appeal, but which was not served on the appellant. The consequence of this failure or omission will become clearer in the course of this judgment.
11.The appeal was canvased by way of written submissions with limited oral highlights. At the hearing, Mr. Mutei, learned counsel, appeared for the appellant, whereas Mr. Odeny, learned counsel, appeared for the respondents.
12.Counsel for the appellant submitted that the appellant had demonstrated fraud. Relying on cases such as Arthi Highway Developers Limited vs. West End Butchery Limited & Others (2015) eKLR and Kinyanjui Kamau vs. George Kamau [2015] eKLR, the appellant maintained that it had specifically pleaded fraud in its cross-petition and supported it with evidence, including various documents like vesting orders, survey plans, and development plans, which confirmed that the suit property was part of the property vested in the appellant and designated as Railway Housing.
13.Counsel contended that the suit property was unalienated land within the meaning of section 2 of the Government Lands Act and, therefore, not available for allocation for private purposes. Counsel argued that the allocation process that led to the creation of the suit property was unlawful and irregular, relying on the cases of National Land Commission (2015) eKLR and James Joram Nyaga & Another vs. Attorney General & Another [2019] eKLR to drive home the point. That during the trial, the appellant had successfully demonstrated that it did not sell or surrender its interests in the suit property to the Government as required under the Kenya Railways Corporation Act. It also proved that the Commissioner of Lands lacked the authority to allocate the suit property without the appellant's involvement. It was also demonstrated that the title acquisition process was fraudulent, unlawful and violated its constitutional rights under Article 40 of the constitution. That the respondents were unable to disprove the allegations of fraud and failed to demonstrate lawful acquisition or prove that the appellant had surrendered its interest in the suit property.
14.Furthermore, counsel argued that the ELC erroneously found that the actions of the respondents were instigated by the appellant despite a lack of evidence. Counsel emphasized that the burden of proof was upon the respondents, as per sections 107, 108, 109, and 110 of the Evidence Act. The respondents' claims that armed officers demolished the perimeter wall on 14th August 2019 were not sufficiently proved. That though the respondents claimed that the suit property was being recovered so as to be given to KPA to operate a new port, however, the pleadings did not disclose any such allegations against the appellant, nor was there any evidence provided. Additionally, the documents did not support the claim that the suit property was being recovered on behalf of the appellant.
15.That in any event, the issue was not pleaded and was only raised in the respondents' submissions. Relying on the cases of Raila Amolo Odinga & Another vs. Independent Electoral and Boundaries Commission & 2 Others [2017] eKLR and Mumo Matemu vs. Trusted Society of Human Rights Alliance & Others [2013] eKLR, counsel argued that raising the issue of the appellant's involvement in the demolitions at the submissions stage denied the appellant reasonable notice to prepare its defence and therefore prejudiced its right to a fair trial as per Articles 27 and 50 of the constitution. Further, it is a golden rule of pleading and evidence that parties are bound by their pleadings.
16.Counsel contested the ELC's decision to award the respondents Kshs. 5 Million in general damages and compensation for loss of rental income of Kshs. 473,974.00 per month, arguing that the respondents did not meet the required burden of proof. It was asserted that the ELC’s conclusion that the appellant violated the respondents' constitutional rights under Articles 40, 43, and 47 was incorrect, given the lack of specific allegations and supporting evidence.
17.As the acquisition of the suit property by the respondents was illegal, null, and void, counsel argued that there was no title to protect under Article 40, as the property was unlawfully acquired. Relying on the Supreme Court decision in Dina Management Limited vs. County Government of Mombasa 5 & Others (Petition 8 (E010) of 2021 [2023] KESC 30 (KLR), counsel claimed that Hodima Construction Company did not pass valid legal interest in the suit property to the respondents. Lastly, the appellant urged us to fault the ELC for finding that it had violated the respondents’ constitutional rights under Articles 40, 43, and 47 of the constitution, and for condemning the appellant to compensate the respondents for these alleged breaches. At the tail end of his submissions, the court engaged counsel on the viability of other grounds of appeal since in his submissions, he had only focused on grounds two and three of the appeal. Whereupon counsel informed us that he had abandoned all the other grounds of appeal. We shall, therefore, limit our determination of this appeal to those grounds.
18.Mr. Odeny, on the other hand, submitted that the appeal should be dismissed as it was fatally defective due to the failure to join necessary parties such as Cabinet Secretary, the AG, the KPA, and the NLC who were parties to the petition before the ELC. That the appeal was only against the respondents, who were the petitioners in the ELC. Additionally, the cross-petition by the appellant included Hodima Construction Limited as the 3rd respondent. However, it was also not enjoined in the appeal. This failure was fatal as it violated rule 77 of this Court's Rules. Counsel also contended that the respondents were bona fide registered owners of the suit property, having purchased it from Hodima Construction Company Limited in 2005.
19.Counsel submitted that in 2009, the purported cancellation of the respondents’ title by the Commissioner of Lands was revoked through Judicial Review Miscellaneous Application No. 256 of 2009, in effect restoring to them their title. That notwithstanding, on the night of 14th August 2019, the Cabinet Secretary and KPA sent armed police officers to destroy the respondents' perimeter wall, claiming they were recovering the suit property for the appellant to give to the KPA for a new port to be put up on Lake Victoria. That the actions were undertaken without the respondents being served with notices of demolition or compulsory acquisition and were not compensated for their loss. It was submitted that the respondents provided a valuation report evidencing damage of Kshs. 27,131,000 and a monthly loss of rental income of Kshs. 473,974. That the AG and the NLC failed to advise the government against the forceful taking over the private property without compensation, thereby violating Article 40 (1) of the constitution. The respondents reiterated their constitutional right to own property and sought redress for the violation of their rights under Articles 22 and 23 of the constitution. Counsel emphasized that the superior court's judgment, which restored their title, should not have been ignored by the appellant. They argued that the appellant had not provided a better title and had not disproved their ownership.
20.Regarding compensation, counsel argued that the respondents were entitled to the entire amount pleaded and proved, as the destruction of the perimeter wall and denial of use of the suit property by the respondents violated their economic and social rights. In the ultimate, counsel urged us to dismiss the appeal with costs.
21.As counsel wound up his submissions, it transpired that he had not served the cross-appeal on the appellant and could not therefore submit on it. Confronted with this fatal omission, counsel for the respondents was left with no other choice but to abandon the cross- appeal. We shall, therefore, make no determination on the same.
22.This being a first appeal, parties are entitled to and indeed expect a re-hearing, re-evaluation and re-consideration of the evidence tendered in the trial court, and an independent determination of this Court on the same, of course bearing in mind that it did not see witnesses testifying and therefore give due allowance for that.See Gitobu Imanyara & 2 Others vs. Attorney General [2016] eKLR, and Seascape Ltd vs. Development Finance Company of Kenya Ltd [2009] KLR 384.
23.We have considered the record of appeal, the grounds thereof, rival submissions, and principles of law applicable. In the light of our above mandate, the issues that fall for our determination, given the concessions by the appellant on the other grounds of appeal as well as the respondents on the cross-appeal are whether: the finding that the actions of the Cabinet Secretary and KPA were instigated, approved and sanctioned by the appellant was right; and whether the respondents were entitled to compensation for breach of their constitutional rights under Articles 40, 43, and 47.
24.We note that the trial court referred to Judicial Review Miscellaneous Application No. 256 of 2009 - Johannes Akelo Omboto & Another vs. Commissioner of Lands & Another Ex- parte Republic [2012] eKLR, in which Ali-Aroni, J. (as she then was) made a finding following a merit hearing that the respondents whose title had been cancelled by the Commissioner of Lands illegally, be reinstated as the proprietors of the suit property. The court stated thus:
25.That judgment and decree still obtains to date. We have not been shown whether that judgment and decree has been reviewed and set aside either by the same court or on appeal nor did the appellant bring to our notice the fate of ELC No. 78 of 2015. From the record, it is clear that the respondents were at the time of demolition of the perimeter wall, the registered proprietors of the suit property. With this holding and the fate of ELC No. 78 of 2015 yet to be determined, it is clear that the respondents demonstrated that they were the legal owners of the suit property at the time. This was despite the trial court’s finding that the appellant had demonstrated that the suit property was part of the larger land belonging to the Kenya Railways Corporation and duly gazetted as such and that it was meant for public use by the Kenya Railways Corporation and not available for allocation for private use. However, the dispute herein was not so much about the legal ownership of the suit property but rather the violation of the respondents’ property rights through destruction of the perimeter wall, buildings, and structures thereon without notice and or compensation. That may explain perhaps why the ELC did not revoke the title. So that at the time of demolition, the suit property belonged to the respondents as a result of a judicial process. This being the case, we doubt whether Dina Management Limited vs. County Government of Mombasa 5 & Others (supra) was applicable. Therefore, the Cabinet Secretary and the KPA could not have, on the night of 14th August 2019, sent armed police officers to destroy the suit property’s perimeter wall without a complaint of sorts that had been lodged or initiated by none other than the appellant. The duo could not have acted suo moto and without a valid complaint lodged by the appellant as the alleged owner of the suit property. There was sufficient circumstantial evidence pointing to the tacit approval of the duo’s actions by the appellant. The duo’s assertion during the exercise cannot be wished away as well. Therefore, the appellant’s assertion that these actors did so without its knowledge, nudging, or authority falls flat on its face, therefor.
26.In any event, the respondents in paragraphs 4 and 5 of the petition linked the appellant and the other respondents in the petition to the demolition of the perimeter wall and their eviction thereof. Paragraphs 11 and 12 of the petition also addressed the issue of the appellant’s involvement in the whole saga. All these facts were presented before the ELC, and there was no denial on the part of the appellant of not having participated either directly or indirectly in the activities. There was evidence attributed to the other respondents in the petition that they acted on the instructions of the appellant. Further, it was acknowledged that the suit property was now occupied by KPA with the knowledge and consent of the appellant. Surely, if the suit property was recovered without the active participation of the appellant, how come it has allowed KPA to occupy it without any colour of right. Lastly, the petition was filed against all the respondents jointly and severally, in which case then, liability attached to all the respondents or individually. Consequently, there was no escaping of liability by the appellant on account of want of nexus of the activities of the cabinet secretary, KPA, and the appellant.
27.The respondents’ case was that the actions by the appellants, among others, breached their constitutional rights as enshrined in the constitution. We agree that indeed the said actions were not justified under any written law, given that there were proper channels the appellant would have used, especially the courts, to have the respondents’ title cancelled and an order for eviction, which would have given the respondents, if successful, prior notice of their eviction. All these actions were also undertaken whilst the appellant was aware that there existed a pending suit, Kisumu ELC No. 78 of 2015, in which the ownership of the suit property was in question. What was so difficult for the appellant to fast-track the hearing of this suit instead of embarking or resorting to illegal and unconstitutional means to gain forceful possession of the suit property? Dealing with the issue, the trial court observed:
28.We agree entirely that the appellant's conduct constituted a breach of the respondents' rights enshrined under Article 40(1) of the constitution of Kenya in conjunction with sub-articles 2 and 6. It is always imperative that a judicial determination be made declaring the property unlawfully acquired prior to any adverse action being undertaken. Moreover, by proceeding with the demolition of the respondents' structures without adhering to due process or securing a court order, the appellant egregiously violated Article 47 of the constitution, which guarantees the right to fair administrative action that is lawful, reasonable, procedurally fair, efficient, and expeditious.
29.Reverting to the cases of Mumo Matemu (supra) and Raila Amolo Odinga & Another vs. Independent Electoral and Boundaries Commission (supra), it is clear that the appellant’s actions were ultra vires and unconstitutional. In the former case, this Court emphasized the importance of procedural fairness and the necessity of following due process in administrative actions. In the latter case, the Supreme Court highlighted the fundamental right to fair administrative action under Article 47, reinforcing that every person has the right to be given written reasons for any administrative action contemplated against him or her.
30.The appellant's actions also contravened Article 50 of the constitution, which guarantees the right to a fair hearing. The respondents were not given an opportunity to defend their rights before their property was destroyed, amounting to a gross violation of their constitutional rights. The appellant’s failure to adhere to constitutional provisions resulted in a breach of the respondents' rights under Articles 40, 43, and 47 of the constitution.
31.Having so found, the ELC did not err in awarding damages. The award of damages is ordinarily at the discretion of the trial court. An appellate court will be slow to interfere with the award of general damages by the trial court unless there are justifiable reasons. This Court in the case of Catholic Diocese of Kisumu vs. Sophia Achieng Tote - Kisumu Civil Appeal No. 284 of 2001 restated the principle thus:
32.The relevant principles applicable to the award of damages for constitutional violations under the constitution were explained exhaustively by the Privy Council in the famous case of Siewchand Ramanoop vs. The AG of T&T, PC Appeal No 13 of 2004. It was held that a monetary award for constitutional violations was not confined to an award of compensatory damages in the traditional sense.
33.As per Lord Nicholls at Paragraphs 18 & 19:
34.Consistent with the above judicial experience and philosophy, it seems to us that the award of damages for constitutional violations of an individual's right by the State or Government are reliefs under public law. However, the Court's discretion is limited by what is “appropriate and just” according to the facts and circumstances of a particular case. As stated above the primary purpose of a constitutional remedy is not compensatory or punitive but is to vindicate the rights violated and to prevent or deter any future infringements. The appropriate determination is an exercise in rationality and proportionality. In some cases, a declaration only will suffice or be appropriate to meet the justice of the case, being itself a powerful statement which can go a long way in effecting reparation of the breach, if not doing so altogether. In others, an award of reasonable damages may be called for in addition to the declaration. Public policy considerations is also important because it is not only the petitioner's interest, but the interests of society as a whole that ought as far as possible to be served when considering an appropriate remedy.
35.The valuation report, prepared by Add Property Consultants, concluded that the value of the suit property was Kshs. 290,000,000. The replacement cost was estimated at Kshs. 22,200,000. However, the respondents sought an award of Kshs. 27,131,000. The court awarded general damages of Kshs. 5,000,000 for the breach of the respondents' rights. Additionally, the respondents were awarded monthly rental income amounting to Kshs. 473,974 from 14th August 2019 to the date of the judgment, which sums were to be paid by the appellant. Having stated the principles, we see nothing that would warrant us to interfere with the discretion exercised by the ELC in the award of the damages. We have not been informed by the appellant how the ELC erred in awarding damages or whether the ELC based the awards on unwarranted considerations. We also note that the fault is not even directed at the amount but rather on why the appellant was to pay.
36.Before we pen off, the parties herein raised the issue that the appellant had failed to include all the parties who had participated in the petition in the ELC in this appeal, and therefore, the appeal was incompetent and ought to be dismissed summarily. All we can say is that the respondents’ counsel was well aware of what he ought to have done in the circumstances. He ought to have invoked the appropriate rules of this Court to have the appeal struck out on that account within 30 days of service of the record of appeal. Having failed to do so, the respondents are deemed to have waived that right and cannot revisit it in this appeal.
37.Consequently, the appeal lacks merit and is accordingly dismissed with costs to the respondents.
DATED AND DELIVERED AT KISUMU THIS 21ST DAY OF MARCH 2025.ASIKE-MAKHANDIA………………………………………………JUDGE OF APPEALP. NYAMWEYA………………………………………………JUDGE OF APPEALL. KIMARU………………………………………………JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR