[2023] KEELC 18561 (KLR)

Shariff & 2 others v Kenya Railways Corporation (Environment & Land Case E002 of 2021) [2023] KEELC 18561 (KLR) (6 July 2023) (Judgment)

Neutral citation: [2023] KEELC 18561 (KLR)

Republic of Kenya

In the Environment and Land Court at Bungoma

Environment & Land Case E002 of 2021

EC Cherono, J

July 6, 2023

Between

Nazmudin Abdulali Shariff

1st Plaintiff

Atlaf Abdulali Shariff

2nd Plaintiff

Firoz Abdulali Shariff

3rd Plaintiff

and

Kenya Railways Corporation

Defendant

Judgment

1. The plaintiffs, Nazmudin Abdulali Shariff, Atlaf Abdulali Shariff and Firoz Abdulali Shariff instituted this suit against Kenya Railways Corporation vide a plaint dated February 4, 2021 and Amended on March 25, 2021 seeking the following orders;a.A declaration order be issued against the defendants, servants and or agents that the intention to demolish building structures and evict plaintiffs’ tenants on land parcel No Bungoma/Municipality/608 is illegal.(a1)The plaintiffs prays for special and general damages against the defendant as pleaded in paragraph 8B & 9A of the plaint.(a2)A declaration order as pleaded in paragraph 9B of the plaint.b.That a permanent injunction be issued against the defendant’s Servants, agents or anybody else acting through them from evicting the plaintiff, tenants from land parcel No Bungoma/Municipality/608c.Costs of this suit.d.Any other relief the honourable Court may deem fit and appropriate to grant.

2. The plaintiffs had filed the suit contemporaneously with a Notice of Motion application under certificate of Urgency seeking orders for inter-alia temporary injunction restraining the defendant/respondent, servants, agents or anybody else acting through them from demolishing building, removing or evicting anybody from the suit land parcel No Bungoma/Municipality/608.

3The defendant denies the plaintiffs’ claim vide its statement of defence dated November 2, 2021 and filed in court on November 5, 2021.

Plaintiffs’ Case 4. The plaintiffs called the 1st plaintiff Nazmudin Abdulali Shariff as PW1. In his evidence on oath, the said Nazmudin Abdulali Shariff referred to his undated witness statement filed in court on February 5, 2021 and a further statement filed on 31st March, 2021which he requested to be adopted as his testimony-in-chief.

5. The 1st plaintiff stated that him and the other plaintiffs are siblings and that they are registered as joint proprietors of the suit land parcel No Bungoma/Municipality/608. He stated that in 1991, they obtained the lease to the suit land and erected a mall which houses 50 stalls, a Bar & Restaurant, a Food Court, a supermarket and a Banking Hall which they have leased to tenants. He further stated that on 3rd February 2021 at around 11. 00 A.M, he received a call from tenants complaining that there were people sent by the defendant who were making announcements that the tenants should prepare to move out from the suit premises alleging that the Land belongs to them and marked the wall with sign ‘X’. He stated that the said announcement and the markings on the wall with sign ‘X’ caused panic and uncertainty amongst tenants, revellers and Business occupants who decided to move out and that the said announcement has caused disruption in their business and those of tenants as they are not sure when the defendant will strike again since they have demolished properties on the neighbourhood.

6. The 1st plaintiff further stated that as a result of the said illegal and false alarm to demolish their premises by the defendant’s servants and/or agents, their clients’ tenants and customers moved from the premises which has occasioned serious financial loss arising out of income accruing daily amounting to millions of shillings. He stated that the tenants moved out of the premises in a hurry vandalising the premises and causing destructions which require major repair and refurbishment to restore it back to an operational state. He further stated that from the assessment done to the premises and books of accounts of their business, the amount required in compensation is as per figure pleaded in the plaint and that unless the court grants the orders sought in the plaint, they are bound to lose irreparably. The witness referred to his list of documents dated February 4, 2021 containing 5 (five) items. The witness also referred to their further list of documents dated 25/03/2021 containing five (5) items which were all produced as exhibits in support of the plaintiffs’ claim. The 1st plaintiff also referred to a further list of documents dated 24/4/2021 containing one (1) item which was equally produced as an exhibit. The 1st plaintiff equally referred to yet another list of documents dated 1st march 2022 containing five (5) items which he also produced as exhibits. The 1st plaintiff further referred to another list of documents dated 4/4/2022 containing three (3) items which was equally produced in evidence.

7. On cross-examination, the 1st defendant stated that they bought the suit property from one Hon. Justus Kisuya (deceased). However, he stated that he was not given a Physical Development Plan (PDP) and that he does not even know what PDP is all about. The 1st plaintiff in cross-examination stated that he does not know the estimated distance between the Railway line and the suit property

8. The second witness called by the plaintiffs in support of their claim was David Wafula who identified himself as working with Shariff Centre as a gate keeper. He referred to his undated witness statement filed in court on March 2, 2022 which he sought to be adopted in his evidence-in-chief. He recalled that on 2/3/2021 at around 10. 30 A M, he was on duty when he saw people coming from the garden directions. He stated that the people included the Area Chief, Police Officers and the village Elder. He heard an announcement from a microphone saying that the land where sheriff Centre is constructed belongs to the Kenya Railways and that the building therein is going to be demolished. The people came to the suit property and announced that the building shall be demolished and that was the last day for people to vacate. He further stated that he called his Boss and told him that some people from the Kenya Railways accompanied by the Area chief, village Elder and police officers had come to the suit premises announcing that the land belongs to them and asked tenants occupying the premises to vacate and that the building was going to be demolished. He further stated that the people from the Kenya Railways were marking ‘X’signs on the stalls that were to be demolished.

9. The third witness(PW3) called by the plaintiffs was one Humphrey Silungi who identified himself as a Quantity Surveyor working as a civil servant attached to the Public works in Bungoma County. He stated that sometime in March 2021, he was instructed to do assessment works on M/S Shariff Centre after part demolition was done by the Kenya Railways team. He prepared the Bill of Quantities and compiled a report. He stated that after assessing the damage, he arrived at a figure of Kshs 7,518,000/= as the cost of rehabilitating/restitution of the building to its original state. He produced the report as P-exhibit No 8. He stated that his registration is No 15.

Defence Case 10. The defendant on the other hand called Julius Vincent as her first witness (DW1). In his sworn testimony, the said witness stated that he works for the defendant Corporation as a permanent way inspector and that he is in-charge of maintenance of Rail road. He stated that he does repair and maintenance of the Railway line and also in-charge of Rail reserve between Webuye and Malaba. He referred to his undated witness statement filed in court on 17/2/2022 which he asked to be adopted in his evidence-in-chief. He also referred to the defendant’s list of documents containing five (5) items filed in Court on 5/11/2021 which he also produced as exhibits in this case. The witness described a Railway crossing as an intersection between a road and a railway line at the same level. He stated that in the Railway crossing, there is what is called ‘visibility diamond’ which has four (4) corners. He stated in the four corners, they measure a distance of 300feet from the centre of the Railway line as the visibility diamond. He further stated that the visibility diamond measurement of 300 feet from the centre of the railway is a standard measurement running within the four corners. He explained that the rule is that they have to have a clear visibility of the locomotive or the wagon, otherwise known as the leading component. He further explained that a motorist is suppose to see the leading component at a distance of 300 feet within the visibility Diamond. He stated that they do not allow anything to grow or go beyond 9 inches, whether vegetation or building. He testified that the suit property falls within the 300 feet visibility diamond. He stated that the St. Andrews Warning sign which is Suppose to warn motorists that there is a Railway crossing ahead and that they should take precautions is inside the fence of the plaintiff. In conclusion, the witness stated that before constructing a building beyond 9 feet within a visibility diamond, the owner must seek approval and/or permission from the Corporation. He stated that in this case, the plaintiffs did not consult them. He referred to the defendant’s list of documents dated 2/11/2021 and filed in court on 5/11/2021 containing four (4) items which he also produced as exhibits in this case.

11. DW2 was Agutu Wycliffe who gave sworn testimony and identified himself as an employee of the Kenya Railway Corporation working as an assistant security services Manager currently stationed at the Kenya Railways Headquarters Nairobi. He referred to his undated witness statement filed in court on 15/8/2022 which he requested the court to adopt in his testimony-in-chief. He stated that the security department is charged with the duty and responsibility to safeguard and protect all Railway operations and assets. He said that they also undertake investigations in all violations against the corporation operations and assets and also remove and evict all illegal encroachment on the Railways land and Reserves.

12. As regards this case, the witness stated that the security department was involved during the rehabilitation of all the metre gauge line, undertake security survey from Mombasa to Malaba through to Kisumu. After undertaking the assignment, they did a report on the areas they found had been encroached. He said that the report was shared with other departments including the Engineering department. He further stated that the Corporation issued a public Notice through the daily newspapers requiring members of the public to move out voluntarily from the Railway land and Reserve failing which they were to be evicted at their own costs. The witness also stated that before they undertake such operations, their security department have to confirm the Railway boundaries and identify any structure which is found within the Railway land and reserve is earmarked for demolition. He said that the Surveyor has to confirm the beacons in the boundaries and thereafter the security department undertakes the earmarking and public meetings (barasas).

13. He further stated that structures identified to have encroached the corporation land earmarked for demolition include the suit property which had encroached on the visibility diamond

Plaintiffs’ Submissions 14. The plaintiffs through the firm of M/s AW Kituyi & Co. Advocates submitted that they have proved their claim on a balance of probabilities and framed four questions which they submitted as follows;1. Whether the plaintiffs were legally registered proprietors of the suit land No Bungoma/Municipality/608?2. Whether the defendants, servants, agents or anybody else acting through them encroached on the plaintiffs’ land parcel No Bungoma/Municipality/608 on February 3, 2021 illegally and without consent and caused the tenants to move out of the said land through announcements and marking the building with mark ‘’X’’ claiming the proprietorship and causing closure of the business?3. Whether the plaintiffs are entitled to special, general and exemplary orders damages and injunctive orders against the defendant herein?4. Whether the plaintiffs are entitled to declaratory and injunction orders?

1. Whether The Plaintiffs Were Legally Registered Proprietors Of The Suit Land No Bungoma/Municipality/608? 15. On the first issue, the Counsel submitted that the 1st plaintiffs (PW1) testified that they are the registered proprietors of land parcel No Bungoma/Municipality/608 vide a Certificate of Lease they procured in the year 2005 and renewed for a further term of 99 years in 2011. He further submitted that the defendant’s evidence could not ascertain to what extent the building extended to ‘Visibility Diamond’ as alleged in their defence. They also submitted that no expert witness was called such as a Surveyor nor a report filed by the defendant to buttress their claim that the structures erected on land parcel No Bungoma/Municipality/608 indeed encroached on Kenya Railway Corporation land as per the Kenya Railways Corporation Act cap 397 and theEast Africa Railways and Harbours Engineering Manual volume (1) 1962.

16. The plaintiffs also submitted that no other title was produced by the defendant to challenge the one issued to them or even show the extent of interference within the Visibility Diamond at the radius of 300ft as alleged and that the land Rates receipts produced in court is an indication that the County Government of Bungoma approved their construction and had no objection for them to erect structures thereon and make use of the land appropriately.

Whether The Defendants, Servants, Agents Or Anybody Else Acting Through Them Illegally And Without Any Consent Encroached On The Plaintiffs’ Land Parcel No Bungoma/Municipality/608 On 3Rd Februry 2021 Thereby Caused The Tenants To Move Out Of The Suit Land Through Announcements And Marking The Building With Mark ‘x’ Claiming The Proprietorship And Causing Closure Of The Business? 17. On this issue, the counsel submitted that in the absence of any Surveyor’s report from the defendant to demonstrate that the plaintiffs’ building is indeed erected within a visibility diamond or Railway Reserve, their defence cannot challenge the plaintiffs’ evidence. He submitted that the intended demolition was illegal, null and void hence the defendant encroached on their land parcel illegally, unlawfully and caused disruption in their business premises leading to movement of tenants out of the mall that has so far created uncertainty of the said businesses. The learned counsel further submitted that the defendant’s notices and daily newspapers dated September 27, 2019 and September 30, 2019 are irrelevant and do not apply to the plaintiffs who have never encroached on the defendant’s land parcel nor Reserve. In conclusion, the plaintiffs submitted that the defendants action therefore was laced with malice that led to substantial loss of income and Rental collection. In support of the submissions, the learned counsel referred to the case of Park Towers Limited v John Mithamu Njoka & 7 Others (2014) eKLR

Whether The Plaintifs Are Entitled To Special, General And Exemplary Orders Damages And Injunctive Orders Against The Defendant Herein? 18. In reference to this issue, the plaintiffs’ counsel submitted that they have produced accounts record showing monthly rental income from the tenants and Restaurant (food court) which showed a figure of Kshs 2, 457,699/=. They submitted that they are entitled to monthly loss of Kshs 2, 457,699/= from 3rd February 2021 until determination of the case. The counsel further submitted that they are also entitled to special damages for refurbishing and repairing of the premises occasioned by the defendant’s unlawful action amounting to Kshs 7, 519,000/ to enable the plaintiffs restore the premises to workable conditions for business.

19. On the issue of general and exemplary damages, the plaintiffs submitted that the defendant unlawfully and without consent encroached and or trespassed on their land and caused massive loss to their business. They averred that it was evident that the defendant in execution of their unlawful act used the police, local administration, presidential Delivery Unit personnel to mark the building ‘X’ and strategically placed bulldozers on particular position close to the mall with intent to demolish on the material day. They submitted that a sum of Kshs 50,000,000/=will be adequate compensation as general and aggravated damages. The plaintiffs further submitted that they also suffered in form of rental income and income from business they operated themselves estimated at Kshs29,492,388/= which translate to Kshs88,477,164 in three years from the time the case was filed until its determination. They cited the following cases in support;1. Thika ELC No 264 of 2017 between John Chumia Nganga v Attorney General & Another (UR)2. Park Towers Limited v John Mithamu Njika & 7 Others (20140 KLR3. Mombasa ELC Case No 276 of 2006 between Ajit Bhogar Singh v Kenya Power & Lighting Company Limited

Whether the plaintiffs are entitled to declaratory and Injunction orders? 20. The plaintiffs averred that they have proved by production of Certificate of Lease that they are joint proprietors of the suit land parcel No Bungoma/Municipality/608 and that the defendant has not adduced any evidence to show that they own the same. Consequently, the plaintiffs submitted that they are entitled to be granted the equitable relief orders.

Defendant’s Submissions 21. The defendant through its legal Counsel, M/S Tom Mutei advocate submitted, based on the prayer sought by the plaintiffs as follows;a.Special damages;b.General damages, exemplary and aggravated damages;c.Declaration of proprietorship;d.Permanent injunctive reliefs;e.Declaration of defendant’s acts as illegal; andf.Costs.

A. Special Damages 22. On the first issue of Special damages, the Advocate for the defendant submitted that at paragraph 8B of the plaint, the plaintiffs seek special damages for loss of income from the premises to the tune of Kshs 2, 457,699 monthly from 3/2/2021until determination and Kshs 7, 519, 000/=being costs of repair and expenses to restore the premises in operational state under paragraph 8A. According to the counsel, the plaintiffs are not entitled to the sums as sought.

23. The suit premises, the counsel submitted that PW1 testified that he and his brothers who are also co-plaintiffs run a Restaurant under the name and style of M/S Shariff Centre Limited and which is comprised in the suit property. He submitted that from the Certificate of incorporation produced as P-EXHIBIT 13, it is not in dispute that the plaintiffs and Shariff Centre Limited are two separate persons in law. He argued that once a company is formed, it becomes a separate person distinct from its shareholders and directors as established in the locus classicus case of Salomon v Salmon & Co. Ltd (1897) AC 22. However, he submitted that there are exceptions to that rule where the court would lift the corporate veil and look to the directors or shareholders.(see Justine Nyambu v Jaspa Logistic (2017) KLR. He invited the court to treat the plaintiffs and Shariff Centre Limited as two separate entities in law from each other. He submitted that from his evidence in cross-examination, the 1st plaintiff stated that M/S Shariff Centre Ltd, a private limited company runs the premises including the Restaurant. He stated that the plaintiffs failed to tender any agreement such as a Memorandum of Understanding or agency agreement showing how the said Shariff Centre Ltd came to run the premises comprised in the suit property on behalf of the plaintiffs who are the registered proprietors. He averred that a perusal of the documents relied on by the plaintiffs to claim losses incurred demonstrate that the losses were incurred by M/s Shariff Centre Ltd and not the plaintiffs herein. To that extent, he submitted that the plaintiffs have not demonstrated any losses they incurred in their personal capacity but are relying on losses incurred by M/S Shariff Centre Limited as a Company. See P-Exhibit 7 and 9. The counsel further submitted that to make a finding otherwise would be the equivalent of inviting this court to exercise power it does not have owing to lack of a formal application. See Justine Nyambu case(supra)

24. The learned counsel also submitted that a formal application to lift the corporate veil is necessary as the same would be preferred under the requisite provisions of the law properly invoking this court’s jurisdiction after which this court would be in a position to make a determination. See Omar Naaman Omar v John Muasya Ngumu (2007) KLR Civil Appeal No 150 of 2000. He argued that courts derive their powers to act from the law and being an adversarial legal system, this court cannot arrogate themselves power to act without being properly invoked by way of a formal application as held In the matter of Independent Electoral Commission (2011) eKLR where the Supreme Court referred to the decision of Nyarangi J in the case of Owners of the Motor Vessel “Lillian S” v Caltex Oil(K) Ltd (1989) KLR

25. The defendant’s counsel further submitted that should this Court be persuaded to consider the losses by Shariff Centre Ltd as documents to be those suffered by the plaintiffs essentially lifting the Corporate veil, he submitted as follows;

b) Consent to sublet 26. In this regard, the counsel for the defendant submitted that the plaintiffs produced a copy of the title to property as P-Exhibit1. A perusal of the said title demonstrates that the plaintiffs’ interest in the suit property is in the nature of a leasehold from the County Council of Bungoma. He submitted that Section 55 of the Land Registration Act requires that the plaintiffs as Leases are required to seek and obtain consent of the head Lessor prior to subletting the suit premises which proviso is mandatory. The learned counsel invited the court to find the contracts illegal and thus voidable for lack of a consent sanctioning the subletting of the premises. He urged this court to find that the occupation of the supposed tenants was also founded on an illegality incapable of being sanctioned by this court. He referred to the following cases in support;a.Makula International Ltd v His Eminence Cardinal Nsubuga and Another(1982) HCB IIb.Macfoy v United Africa Company Ltd (1961) 3 All ER 1169c.Birket v Arcon Business Machines Ltd(1999) 2 All ER 429

c). Loss of income 27. The defendant’s counsel submitted that the plaintiffs at paragraph 8B of their Amended plaint sought loss of income in monthly rent at Kshs 1,872,699/; the Restaurant at Kshs 380,000/; and the food court at Kshs 205,000/. He submitted on each item as follows;

i. Rental income from tenants 28. He submitted that the plaintiffs did not tender any tenancy agreements between them and the supposed tenants who are said to have been paying rent. He submitted that subletting the premises to the supposed tenants constitutes disposition of land within the meaning of section 2 of the Land Act and Land Registration Act. He further argued that Section 3(3) of the Law of Contract Act stipulates that any disposition of interest in land has to be documented by way of written contract. Consequently, he submitted that the plaintiffs have failed to discharge the burden of proof on a balance of probabilities and urged this court to find no merit in their claim for loss of income. He referred to the following cases;1. Silverbird Kenya Limited v Junction Limited & 3 Others(2013) eKLR2. John Michael Wanjao v Alubala Abenayo Andambi (2011) KLR

29. The defendant’s counsel further submitted that even if the court were to find that there were agreements over subletting the premises comprised in the suit property, the said interest in the extent of subleases were not registered against the title as required under the Land Registration Act. He submitted that neither did PW1 produce the books of accounts which he stated in his adopted statement existed and were used to Asses loss for compensation purposes. He submitted that no receipts, statement of accounts in favour of the tenants, KRA returns on any income earned from the rent or even financial reports by Shariff Centre Limited were produced to show the court rent payment by the said tenants as pleaded in order to support loss owing to an occurrence of the alleged event that caused the loss.

30. The learned counsel further submitted that the list of tenants prepared by the plaintiffs and produced as P-Exhibit No 6 does not constitute proof of payment of rent by the said tenants and neither does the correspondences between the plaintiffs and M/S Faulu Bank over the latter’s occupation on the suit premises demonstrate payment of rent. He argued that the said tenants were not called as witnesses of the plaintiffs. The Counsel also submitted that the said tenants were running businesses from the said premises but no licenses issued to each of the individual tenants were produced as exhibits demonstrating that they were licensed to operate from the said premises. He submitted that the evidence by the plaintiffs is merely speculative and this court cannot make positive finding on mere speculation. He submitted that for one to claim loss of income, he has to demonstrate that they were receiving income in the first place by adducing proof of payment by way of receipts after-which they can raise their claim for loss when they are no longer in receipt of the same owing to an occurrence of an event. He referred to the following cases;a)Great Lakes Transport Co. (U) Ltd v Kenya Revenue Authority (2009) KLRb)Africa Gospel Church Chebocho v Paul Mutai (2017) KLRc)Sarnager Singh Hayer & Another v Kenya Railways Corporation (2021) KLR

ii) Income from the Restaurant and food Court 31. The defendant’s counsel submitted that a perusal of P-Exhibit No7 shows the income summary report demonstrating that the Restaurant was called M/S Shariff Grill and that there was no licence produced showing that the Restaurant was operational and no receipts, books of accounts, bank statements or tax returns to demonstrate any income derived from the restaurant. He further submitted that the income statement produced as P-Exhibit No7 was made by M/S Shariff’s Centre Limited and that the income statement was not an official statement made by Shariff’s Centre Limited.

d). Costs of Repair and expenses to restore premises in operational state 32. On this issue, the defendant’s counsel submitted that there is no proof before court that the buildings and structures on the suit property were lawfully erected with the requisite approvals. He submitted that for one to claim loss as a result of damaged buildings and structures, the claim has to founded on legally brought up structures which entails demonstrating that the requisite approvals were sought and obtained, including those of the defendant’s managing Director considering the proximity of the suit property to the Railway line.

33. The learned counsel also referred to the bill of Quantities prepared by one Humphrey Silungi and submitted that the maker of the said report failed to demonstrate that he was a registered Quantity Surveyor and neither did he attach his practising Certificate to the report. He referred to the following cases;i.Ali Kolela Montet v China Roads & Bridge Corporation (K) (2022) KLRii.Christopher Ndaru Kagina v Esther Mbandi Kagina & Another (2016) KLR

2. General Damages, Exemplary and Aggravated Damages 34. The counsel for the defendant submitted that General damages and Exemplary damages are different reliefs in law. He submitted that General damages were defined by the Court of Appeal in the case of; Kenya Power and Lighting Company v Philiph A M Kimondiu (2018) eKLR to be the direct natural and probable consequence of the action complained of. Again, he submitted that the same Court in the case of Godfrey Julius Mbogori & Another v Nairobi City County (2018) eKLR also defined Exemplary and Aggravated damages as those which the court exercises its discretion to award in a bid to punish and deter.

35. He submitted that as pleaded in the prayers, the same cannot be presumed to refer to one relief and urged this Honourable court to find that the plaintiffs are seeking Exemplary and aggravated damages and not General damages.

36. The learned counsel submitted that should the court be inclined to find that an award of General damages in addition to Exemplary damages is being sought, the plaintiffs must show that the losses that ensued were a direct consequence of the defendant’s action. See Kenya Power and Lighting Company Limited v Phillip A M Kimondiu (2018) eKLR.

37. As regards the claim of Kshs 50,000,000/, the defendant’s counsel submitted that there is no evidence as to how the figure was arrived. He further submitted that the claim is unwarranted for being founded on illegalities. See Makula International Ltd (supra), Macfoy (supra) and Birket (supra).

3. Declaration of proprietorship 37. The counsel for the defendant submitted that Section 16 of the Kenya Railways Corporation Act as read with Section 7 of the Engineering Manual vol.1(1962) –Technical Instructions over the East African Railways and Harbours, creates a legitimate expectation for persons who have acquired interest in land within 300 feet of the Level Crossing to obtain approval from the Managing Director before erecting any structures. He submitted that the same Section 16 equally applies to Land near a Railway line such as the subject property in this case. The defendant’s counsel argued that the mischief behind such a pre-requisite is to enable the defendant Corporation perform its Statutory obligation of preventing any danger in the supply of rail or transport services for which they are at risk of being found liable in law. He submitted that it is not in dispute that the plaintiffs did not meet such a pre-requisite before developments were caused on the suit property as required under the Kenya Railways Corporation Act

4. Permanent Injunctive Relief 38. The defendant through its counsel submitted that whereas the suit property is lawfully owned by the plaintiffs, enjoyment of use including its development is not absolute but subject to limitations placed by specific Statutes highlighted hereinabove. He further submitted that if the prayer for permanent injunction is granted as prayed, the defendant’s right to perform its obligations as set out under Sections 8(2), 13, 16 and 20 of the Kenya Railways Corporation Act will be prejudiced as discussed hereinabove. The learned counsel also submitted that the plaintiffs were aware of the Notices of the defendant’s intent as the same were the subject of discussions they had with M/S Faulu Bank

5. Declaration that the defendant’s acts were illegal 39. The defendant submitted that it issued several Notices to enable the defendant perform its Statutory obligation under Sections 8(2), 13(1), 16 and 20 of the Kenya Railways Corporation Act which notices were a subject of discussions between the plaintiffs and Faulu Bank. See P-Exhibit No 15 and 16.

6. Costs 40. On the issue of costs, the defendant’s counsel submitted that ordinarily, Costs follow the event as set out under Section 27 of the Civil Procedure Act. In conclusion, the defendant submitted that this suit be dismissed with costs.

Analysis And Determination 41. I have considered the pleadings by the parties, the proceedings, the testimony by the witnesses, the documents produced as exhibits, the rival submissions by counsel and the relevant law. Upon looking at the relevant documents and materials placed before me, I find the following issues commend for determination;1. Whether the plaintiffs have proved their claim on a balance of probabilities?2. What appropriate orders to grant?3. Who should bear the costs of the suit?Whether the plaintiffs have proved their claim on a balance of probabilities?The first relief sought by the plaintiffs is for several reliefs as follows;a)Special Damages;b)General damages, Exemplary and Aggravated damages;c)declaration of proprietorship;d)Permanent Injunctive reliefs;e)Declaration of the defendant’s acts as illegal; andf)Costs

42. I now analyse each of the six (6) prayers sought in the plaint in an attempt to resolve the dispute as follows;

a) Special Damages 43. In paragraph 8B of their Amended Plaint filed in Court on 31/3/2021, the plaintiffs pray for judgment against the defendant for loss of income from the premises of Kshs 2,457,699/ monthly until determination of the suit from 3/2/2021 and a further sum of Kshs 7,519,000/ being costs of repair and expenses to restore the premises in operational state.Section 107 and 108 of the Evidence Act provides as follows;107 ‘’(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.’’

44. Article 40 of the Constitution guarantees every person the right to acquire and own property provided title to property was acquired legally, procedurally and not through a corrupt scheme. However, such a right to land is not absolute since the proprietor is required to seek and obtain approvals or consent before undertaking certain projects or development on the land.

45. In the case of Mbuthia Macharia v Annah Mutua & another (2017) eKLR, the court discussed the burden of proof and stated thus;(16)16) ‘’ The legal burden is discharged by way of evidence, with the opposing party having the duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence? In this case, the incidence of both the legal and evidential burden was with the appellant.’’(23)‘’The defendant was the one who supplied the documents to the plaintiff representing payment to KRA. The defendant therefore bore the evidential burden of proof to prove that that payment was indeed made to KRA. The defendant failed to shift that burden of proof.’’

56. The Halsbury’s Laws of England, 4th Edition, Volume 17 at page 13 & 14 describe the burden of proof as follows;‘’The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish this to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case with separate issues.’’(16)The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellants, the evidential burden may shift in the course of trial, depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence.’’

47. The plaintiffs called Nazmudin Abdulali Shariff as PW1 who produced a Certificate of lease as prove of ownership of the suit land parcel No Bungoma/Municipality/608.

48. In rebuttal to the plaintiffs’ claim, the defendant in her defence dated November 2, 2021 paragraphs 7 & 8 averred as follows;7. ‘’ In further response, the defendant avers that it has a mandate set in law under the Kenya Railways Corporation Act cap 397 to construct and maintain among other accommodations, Railway Levels crossings on both Public and private roads in the manner described both in the Act and the East African Railways and Harbours Engineering Manual Volume 1(1962).’’

8. ‘’Further on the said crossing there is a mandatory legal requirement for the maintenance of what is called the Visibility Diamondstretching 300 feet on each of the four directions along the diagonals of the crossing. The law prohibits any constructions or erection of any structures and even growth of any plants growing beyond 9 inches within theVisibility Diamond.The aim of this legal requirement ‘’shall e to maintain a distance standard visibility that will enable a motorist, when he is at least 300 feet from the crossing, to see the leading component of the train when it is also at least 300feet from the crossing’’ and equally the locomotive driver.

49. The defendant in her evidence called one Julius Vincent Owino (DW1) who produced documents contained in her list of documents dated November 2, 2021. The first exhibit produced by the defendant is a copy of the Kenya Railways Corporation (Vesting Order) 1986. Section 16 of the Kenya Railways Corporation Act as read with Section 7 of the Engineering Manual Vol.1-Technical Instructions over the East Africa Railways and Harbours, creates a legitimate expectation for persons who have acquired interest in land within 300 feet of the level Crossing to obtain approval from the managing Director of the Corporation before erecting any structures. The said section 16 of the Railways Corporation Act applies to land near a Railway line such as the subject property in this case. The mischief behind such a pre-requisite is to enable the defendant perform its statutory obligation of preventing any danger to the general public, motorists and even the locomotives. I agree with the testimony by the defendant’s witness and submissions by its Counsel that the plaintiffs herein did not seek and obtain permission/consent from the Managing Director of the Kenya Railways Corporation before erecting the building and structures on the suit land thereby obstructing the Corporation to perform its functions and obligations as required under the Kenya Railways Corporation Act. I also agree with the defendant’s witness that the plaintiffs did not meet the statutory and legal prerequisites before developments were caused on the suit property as required under the Kenya Railways Corporations Act.

50. The second exhibit produced by the defendant witness is a copy of an extract from the said manual and a graphic illustration of a Visibility Diamond annexed thereto. It is clear from the said exhibit that at the said crossing, there is a mandatory legal requirement of the maintenance of what is called the ‘’Visibility Diamond’’ stretching 300 feet on each of the four directions along the diagonals of the crossing. The law prohibits any construction or erection of any structures and even growth of any plants beyond 9 inches within the Visibility Diamond. Looking at the Photographs produced by the 1st plaintiff as P-Exhibit 14, specifically the 14th photo, this Honourable Court takes Judicial Notice that the suit property falls within the ‘’Visibility Diamond’’ which is 300 feet of the Level Crossing. It therefore follows that the plaintiffs were required to seek and obtain consent/approval from the Managing Director of the Defendant Corporation before undertaking any developments on the suit property. The mischief of this legal requirement is to maintain a distance standard Visibility that will enable a motorist, when he is at least 300 feet from the crossing, to see the leading component of the train when it is at least 300feet from the crossing and equally the locomotive driver.

51. Special damages have been discussed by the superior Courts in numerous decisions. The Court of Appeal in the case of Kenya Power and Lighting Company Limited v Phillip A M Kimondiu (2018) eKLR held;‘’In the case of Stroms Brucks Aktie Bolag v Hutchison (1905)AC 515, Lord Mac Naughten sought to distinguish between the nature of special and general damages and explained that;‘’---Special damages on the other hand, are such as the law will not infer from the nature of the act. They do not follow in ordinary course. They are exceptional in their character and therefore must be claimed specifically and proved strictly.’’In other words---while in the case of special damages, the respondent would be required to show proof of actual loss on matters that cannot be said to be a natural or direct consequence of the appellant’s trespass.’’

52. It is not in doubt the plaintiffs are jointly registered as proprietors of the suit property Land parcel No Bungoma/Municipality/608. However, the 1st plaintiff testified that him and his brothers who are also parties in this suit run a restaurant under the name and style of M/S Shariff Centre Limited which is comprised in the suit property. He produced a Certificate of incorporation as P-Exhibit 13. In his testimony, the 1st plaintiff confirmed that M/S Shariffs’ Centre Limited indeed runs the suit property, including the Restaurant. However, he did not produce any agreement to show how the said Shariff Centre Limited which is a separate legal entity from the plaintiffs who are proprietors of the suit property came to run the premises comprised in the suit property on behalf of the plaintiffs. A cursory look at the documents relied by the plaintiffs and produced in evidence in support of the claim for losses incurred clearly show that the losses were incurred by M/S Shariff Centre Limited and not the plaintiffs.

53. To that extent, I find that the plaintiffs have not demonstrated any losses incurred in their personal capacity to warrant the grant of the orders sought for special damages.

(ii) Loss of income 54. The second limb of special damages sought by the plaintiffs is loss of income. At paragraph 8A of the Amended plaint, the plaintiffs sought loss of monthly rent at Kshs 1,872,699, the restaurant at Kshs 380,000/ and food Court at Kshs 205,000/.

55. From the evidence adduced by the 1st plaintiff and the witnesses called, there is no evidence of any tenancy agreement between them and the supposed tenants who are said to have been in occupation and paying rent. During the hearing, the first plaintiff confirmed that an agreement to sublet the premises to Faulu Bank existed but the same was not availed in court.

56. Subletting the suit premises constitutes disposition of an interest within the meaning of Section 2 of the Land Act and the Land Registration Act. Section 3(3) of the Law of Contract Act stipulates that any disposition in land shall be documented by way of a written contract. In the absence of any agreement signed by the parties and duly registered to demonstrate the basis upon which rent being billed and/or earned by the plaintiffs, I find that the plaintiffs have failed miserably to discharge their burden of proof on a balance of probabilities.

57. Suffice to say that the list of tenants prepared by the plaintiffs and produced as P-Exhibit No6 does not constitute proof of payment of rent by the purported tenants and neither do the correspondences between the plaintiffs and Faulu Bank over the latter’s occupation on the suit premises demonstrate payment of rent. The purported tenants were not also called as witnesses by the plaintiffs. It was also alleged that the said tenants were running Businesses from the suit premises. However, no licenses issued to any or all the supposed tenants was produced in evidence before court. It is trite law that for one to claim loss of income, he/she has to demonstrate that he/she was receiving income in the first place by adducing proof of payment by way of receipts after which they can raise their claim for loss when they are no longer in receipt of the same owing to an occurrence of an event.

iii. Income from the restaurant and food court 58. P-Exhibit No7 is an income summary report indicating that the Restaurant was called M/S Shariff Grill. However, there is no licence produced to show that the said Restaurant was operational. There are also no receipts, books of account, bank statements or tax returns to show any income derived from the restaurant. The income statement relied on by the plaintiffs and produced as P-Exhibit 7 was made by the company described as M/S Shariffs Centre Limited. The income statement is not an official statement from the bank demonstrating income earned. A perusal of the said document reveals that some cash was banked in the sum of Kshs380,000/without a corresponding bank statement demonstrating that the same money was indeed banked. In my view, the income statement prepared by M/S Shariff Centre Limited is no certainty that the same is a true account of the income derived from the business in the absence of income tax returns and/or cash books to support the same. Moreover, the said income statement is dated 20/12/2019 which confirms my fear that the said income statement was prepared solely for the purpose of this case and not a true account of the income derived from the business.

59. As regards income from the food court, I find that the plaintiffs failed to discharge the burden of proof on a balance of probabilities of any losses in income derived therefrom. There is no documentation before this court to demonstrate that the food court was in operation by way of a license. There are also no receipts, books of accounts, income tax returns or bank statements to demonstrate with certainty that the food court brought in Kshs 205,000/ per month to justify the claim for loss of the said sum as pleaded.

iv) Costs of repair and expenses to restore premises in operational state 60. The plaintiffs at paragraph 8A of their Amended plaint sought costs of repair and expenses to restore the premises in operational state as follows; electrical at Kshs 800,000/; plumbing at Kshs 350,000/; painting at Kshs 2,786,000/; and works on premises at Kshs 3,583,400/. In support of this claim, the plaintiffs have relied on a copy of costs for rental renovation and a bill of quantities for proposed rehabilitation works produced as P-Exhibit No8 and P-Exhibit 9 respectively. The said bill of quantities for repairs was prepared by a Mr. Humphrey Silungi who was also called by the plaintiffs as a witness(PW2). During cross-examination, the said Humphrey Silungi failed to produce documents showing that he was a registered Quantity Surveyor. His report did not disclose his practising status by attaching a practising Certificate or demonstrating that he was a registered Quantity Surveyor. Section 8 of the Architects and Quantity Surveyors Act gives qualifications of a quantity Surveyor who is issued with a practising Certificate and whose name is contained in a Register. A stamp containing the names and registration number without an accompanying practising certificate in my view does not prove one is a qualified quantity surveyor. In the absence of proof of qualifications of the witness as a practising quantity surveyor within the meaning of the Act, I decline to consider the report for being prepared by a person not qualified to offer expert opinion.

61. I also note that there is no proof that the buildings and structures on the suit property were lawfully erected with the requisite approvals. For one to claim damages as a result of loss to buildings and structures, the claim has to be founded on legally brought up structures which entail demonstrating that the requisite approvals were sought and obtained including those of the defendant’s Managing Director, considering the proximity of the suit property to the Railway line as can be seen from one of the photos produced by the plaintiffs as P-Exhibit No14.

62. Even assuming that the said report is admissible in evidence, the same has no evidentiary value. First, the 1st plaintiff (PW1) in cross-examination was referred to a letter the plaintiffs instructed their advocate to write in response to the concerns raised by M/S Faulu Bank (see P-Exhibit 15). At page 2 of the said letter, the plaintiffs confirmed that the premises the said M/S Faulu Bank leased is still intact and ready for occupation. Another letter addressed to Khetias Drapers Ltd was produced as P-Exhibit 16 which confirmed that the premises would be put to use if it did not occupy the same again. If indeed the premises were fit for occupation by their tenants as confirmed by the plaintiffs through their advocate, there is no justification for the rehabilitation works as proposed in the bill of quantities. PW3 in his evidence stated that the figures he quoted on the bill of quantities were based on current prevailing market rates. However, he did not produce a sample price in support of his assertion. The figures based on current prevailing market rates in the bill of quantities ought not to exist in a vacuum but must be derived from documentation and which was not presented before the court to support how or from where the figures were derived from. On that account, PW3 failed to demonstrate where the figures were derived from to support his findings.

63. PW3 also testified that he focused on the interior part of the premises in the preparation of his report. He noted that parts of the walls were cracked, sinks were pulled out, fittings and tiles were destroyed, electrical works were vandalized amongst others hence the need for the rehabilitation works. He confirmed that he visited the site three times in the preparation of his report. However, he failed to tender photos showing that the interior of the premises had cracked walls, destroyed worktops at the kitchen and washrooms, destroyed electrical appliances and tiles and/or there was need for painting to support his proposal for rehabilitation as proposed. I also note from the photos produced as P-Exhibits 3 & 4(i)-(ix) by the 1st plaintiff that the same does not disclose the interior of the premises especially the damages that are in need of repair as described in the bill of quantities but only capture the markings of the exterior side of the premises. In the absence of proof of destruction of the interior side of the premises as opined by PW3 to warrant the said repairs and/or even the need for painting of the interior part of the premises, I find that there was no destruction or need for repairs and/or rehabilitation as alleged. I also note that there are no independent reports by a plumber or electrician or painters in support of the alleged destruction of the interior of the premises either.

64. With respect to the markings on the exterior side of the premises, there was no evidence tendered to support the cost of repairs such as the exterior walls, the gate, security house and/or fountain said to have been damaged. PW3 in his testimony confirmed that his report was focused on the interior of the building and not the exterior part. Neither did he explore outside. In the absence of proof of the costs of repair concerning the exterior part of the premises, this court cannot issue orders not prayed for.

b) General, exemplary and Aggravated Damages 65. At paragraph 9A of the Amended plaint, the plaintiffs seek to be paid exemplary and aggravated damages for trespassing on their land through force and intimidation in the sum of Kshs 50,000,000/General damages were defined by the Court of Appeal in Kenya Power and Lighting Company Limited v Phillip A M Kimondiu (2018) eKLR as follows;‘’ In the case of Stroms Brucks Aktie Bolag v Hutchison (1905) AC 515 Lord MacNaughten sought to distinguish between the nature of special and general damages and explained that;‘’ General damages on the other hand, are such as the law will presume to be the direct natural and probable consequence of the action complained of---‘’In other words, to sustain a claim for general damages, the respondent must show that the losses that ensued were a direct consequence of the appellant’s trespass….’’

66. Exemplary and aggravated damages on the other hand was also defined by the Court of Appeal in Godfrey Julius Ndumba Mbogori & Another v Nairobi City County (2018) eKLR as those which the court exercises its discretion to award in a bid to punish and deter.

67. From the two definitions, General damages exemplary and aggravated damages do not refer to one and the same relief.Even assuming the plaintiffs are seeking general damages as a separate relief, I find the case of Kenya Power and Lighting limited (supra) guided by the Stroms case relevant where it was held thus;‘’In other words, to sustain a claim for general damages, the respondent must show that the losses that ensued were a direct consequence of the appellant’s trespass---‘’Assessing And Awarding Damages For IrrigationThe special damages awarded took into consideration that the land could not be used for the intended purposes. The Appellant/cross-respondents submissions based their opposition on the words ‘intention to’ are outlandish –‘’(emphasis ours)

68. It is evident from the above that, on the one hand, the respondent’s submissions concerned a claim for loss of profit for an ongoing irrigation project. And on the other, a claim for loss of user profits for an intended project. But besides oscillating between an existing and intended user, and the specific reference to special damages made in the counterclaim, are indicative of a planned irrigation project, a fact that the appellant also concedes. Indeed, since the project was yet to commence, support for a claim of special damages would be non-existent, so that, an assessment founded on special damages was clearly, inconceivable. Therefore, a claim for special damages was applicable to the circumstances of this case, and the inevitable conclusion is that the learned judge’s award was for general damages for loss of user profit.’’

69. Coming to the facts of this case, the plaintiffs have produced various letters, one showing that M/S Faulu Bank and Khetias Drapers no longer occupy the suit premises. The plaintiffs did not tender any consent to sublet as required under Section 55 of the Land Registration Act. Neither were building approvals availed before the court such as those from the Managing Director of the Defendant Corporation, considering that not only is the suit property located near a Railway line as can be observed from one of the photographs relied on by the plaintiffs (P-Exhibit14) but also falls within the Railway Visibility Diamond.

70. I also note that there are no licenses of the supposed tenants or testimony from any of them as witnesses before court in their bid to demonstrate the businesses being run from the said premises were operating lawfully. It is also noted that there are no agreements to sublet the premises to the said tenants before this court and/or proof of payment by way of receipts or financial statements or declared rental income returns from KRA to justify the claim for loss.

71. For general damages to be determined, the tenancy agreements, proof of payment by way of receipts or financial statements or KRA tax returns, licences, approvals and the relevant consents are necessary for consideration by the court in determining whether general damages can be awarded as they will show the period for the tenancy, how much in monthly rental income will be lost, if the buildings and structures comprised in the suit premises were lawfully erected or whether consent of the County Council of Bungoma to sublet was obtained.

72. From my analysis hereinabove, I find the claim for general damages to the tune of Kenya Shillings fifty million (Kshs 50,000,000/=) is unwarranted.

b) Exemplary and aggravated damages 73. In Leonard Gethoi Kamweti v Natinal Bank of Kenya Limited (2020) eKLR, the Court of Appeal held;‘’ It is trite that exemplary damages are only awarded in limited instances. The categories of cases in which exemplary damages should be awarded are set out, at paragraph 243 of Halsbury’s Laws of England, as follows;‘’Exemplary damages should be awarded only in cases within the following categories;1. Oppressive, arbitrary or unconstitutional action by servants of government;2. Conduct calculated by the defendant to make him a profit which may well exceed the compensation payable to the plaintiff; or3. Cases in which the payment of exemplary damages is authorized by statute.

74. The defendant’s witness produced several notices in evidence as D-Exhibits 3-5 which were issued prior to the suit property and many others were marked. The reasons for issuance of the notices was because part of the suit property falls within the railway visibility diamond. A perusal of the said notices indicates that the defendant called for persons who had encroached on railway land to vacate. This included property which fell within the railway reserve and visibility diamond.

75. The defendant’s witness further stated that according to the vesting orders and the Engineer’s Manual, part of the property fell within the railway Visibility diamond which forms property vested in it and which posed a danger to motorists and locomotive driver owing to the structures blocking the railway visibility as they exceeded the Maximum 9 inches.

76. Section 8(2) of the Kenya Railways Corporation Act provides that the defendant’s Board in the performance of its duties includes the general duty to ensure that the undertaking of the Corporation is operated efficiently, economically and with due regard to safety. Section 13(1) of the same Act also stipulates that the defendant has power to provide facilities for passengers carried out by it and other persons making use of the services performed or provided by it. Section 20 of the Act further stipulates that the defendant is mandated to construct and maintain among other accommodations, Railway Level Crossings on both public and private roads in the manner described both in the Act and the East African Railways and Harbours Engineering Manual Volume 1(1962). Under Sections 13 and 14 of the said Act, the defendant is bestowed with property to aid in the performance of its duties of providing rail services to the citizens of Kenya as captured in the vesting orders. In the event the performance of the defendant’s obligations is compromised, the citizens of this Republic will not only suffer, but the defendant will also be prejudiced to the extent of exposing it to liabilities that may arise for lack of safety of the Railway line, Railway reserve or Railway visibility diamond. In order to ensure the protection and safety in the performance of its duties and obligations, the defendant has powers to protect and/or recover the property vested in it and this includes issuing of notices requiring encroachers to vacate as was done in this case (see D-Exhibits 3-5).

77. From the notices issued to the public through the newspapers produced as D-Exhibits3-5, it is not true that the plaintiffs were not aware of the same and first became aware of the intentions of the defendant through a broadcast on the morning of 3/2/2021. Moreover, the plaintiffs and M/S Faulu Bank had discussed concerning the defendant’s intent to reclaim railway property a month before the alleged broadcast on 3/2/2021and before the plaintiffs approached the court. The said correspondences also show that the plaintiffs through their advocate responded to the concerns raised. In the circumstances, I decline to award this prayer.

C). Declaration of proprietorship 78. The Constitution of Kenya under article 40 guarantees every person the right to acquire and own property provided title to such property is acquired lawfully, legally and procedurally. Property holders who wish to develop any property are bound by law to seek and obtain requisite statutory approvals and/or consents before they undertake any such developments. The essence of such approvals is to ensure that whatever developments are proposed on the properties are in accordance to the building plans which have been approved as required under statute.

79. In this case, Section 16 of the Kenya Railways Corporation Act as read with Section 7 of the Engineers Manual Volume 1-Technical instructions over the East African Railways and Harbours creates a legitimate expectation for persons who have acquired interest in land within 300 feet of the Level Crossing to seek and obtain approval from the Managing Director before erecting any structures. The said Section 16 equally applies to land near railway line such as the suit property.

80. It has not been shown that the plaintiffs sought and obtained the requisite consent from the Managing Director of the defendant Corporation before undertaking the developments on the suit property as required under the Kenya Railways Corporation Act. Without compliance with the statutory minimum of seeking and obtaining the requisite approvals, the plaintiffs lack the legal basis to claim the loss as prayed in the plaint.

d). Permanent Injunctive Relief 81. It is not in dispute that the suit property is registered in the joint names of the plaintiffs as proprietors. However, enjoyment of and use of land including its development is not absolute but subject to limitations placed by specific statutes as discussed hereinabove. I agree with the defendant that granting the orders sought under this prayer will not only prejudice the defendant’s right to perform its statutory obligations as set out under Sections 8(2), 13, 16 and 20 of the Kenya Railways Corporation Act and thereby expose it to liabilities but also expose the lives of the general public to danger due to accidents.

e). Declaration that the defendant’s acts were illegal 82. As discussed elsewhere in my analysis, the defendant’s witness produced D-Exhibit 3-5 which are public notices in the newspapers. The said notices required those who had encroached on the Kenya Railway land to vacate. The said notices were to enable the defendant to perform its statutory obligations under Sections 8(2), 13(1), 16 and 20 of the Kenya Railways Corporation Act. As discussed hereinabove, the defendant notified all persons concerned, including the plaintiffs and became a subject of discussion between them and M/S Faulu Bank and also brought to the attention of their advocate. In view of the matters aforementioned, I decline to issue the equitable relief sought.

f). Costs 83. Under Section 27 of the Civil Procedure Act, costs follow the event unless the court, for reasons to be given, orders otherwise. I have no reasons to depart from the law.

Final Orders 84. The upshot of my analysis is that the plaintiffs’ suit has not been proved on a balance of probabilities and the same is hereby dismissed with costs.

85. For avoidance of doubt, the temporary injunction orders issued pending the hearing of this suit is hereby vacated.Orders accordingly.

READ, DELIVERED AND DATED IN THE OPEN COURT/VIRTUALLY AT BUNGOMA THIS 6TH JULY, 2023HON. E.C. CHERONOELC JUDGEIn the presence of;1. M/S Moraa2. Mr. KituyiM/S Joy C/A