The Environment and Land Court has ordered the Kenya Railways Corporation (KRC) to acquire a 0.7145-hectare parcel of land it irregularly fenced off in Nairobi’s Embakasi area, locking out the owner for nearly a decade.
The court said that KRC violated Mary Odhiambo’s rights by occupying and fencing off her parcel of land that was initially partially acquired by the rail firm for the construction of a section of the Mombasa-Nairobi standard gauge railway (SGR) line.
“The court directs the 1st defendant (KRC) to compensate the plaintiff for the other half portion which it has emerged is already fenced and in fact, the plaintiff for the last nine years has not had access to due to the activities being undertaken on the land by the 1st defendant.
“This court therefore finds that there is a need for the area occupied by the 1st defendant to be valued and then the 1st defendant through the 2nd defendant (National Land Commission) to compensate the plaintiff with regard to the said portion,” Lady Justice Ann Mogeni said in her ruling on Thursday.
Ms Odhiambo acquired a 1.5-hectare plot of land in the Embakasi area. In 2015, the National Land Commission (NLC), acting on behalf of Kenya Railways, earmarked a portion of the land for compulsory acquisition to facilitate the construction of SGR.
However, only 0.7145 hectares, roughly half the parcel was acquired and Ms Odhiambo compensated Sh60 million. However, KRC proceeded to fence off the whole piece of land leaving Ms Odhiambo without access to the remaining portion of her property.
Ms Odhiambo sought the court’s intervention, arguing that her rights under Article 40 of the Constitution, which protects against the deprivation of property without just compensation, had been violated. She demanded that Kenya Railways acquire and compensate her for the remaining portion of the land, or at the very least, provide an access route to the property.
She told the court that despite numerous letters and pleas, neither Kenya Railways nor the NLC addressed her access concerns.
Kenya Railways denied occupying Ms Odhiambo’s entire property, arguing that only the acquired 0.7145 hectares was needed for the SGR project. It claimed that without a formal gazettement or additional instructions from the NLC, it was not obligated to acquire the rest.
Kenya Railways also argued that Ms Odhiambo’s demands were unjustified and procedurally flawed and sought dismissal of the case.
The NLC argued that it had acted solely on Kenya Railways’ instructions, which had limited the acquisition to half of the plot, and that it could not act independently to acquire the remaining portion.
In his judgment, Justice Mogeni dismissed the defences raised by Kenya Railways and found that the company’s actions had effectively deprived Ms Odhiambo of her property rights.
The court cited the failure to provide access to the remaining land amounted to a seizure—rendering Ms Odhiambo helpless.
The judge noted that the plaintiff has been denied access to her property for the last nine years due to the activities being undertaken on the land by KRC and observed that as a State entity, the firm had an obligation to respect private property rights.
The court ordered NLC to conduct a new valuation of the remaining 0.7145 hectares and compensate Ms Odhiambo accordingly.
