https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4332

Superclean Shine Enterprise Limited & 3 others v Kenya Railways Corporation & 4 others (Environment and Land Petition E005 of 2026) [2026] KEELC 4332 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEELC 4332 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Petition E005 of 2026 OA Angote, J July 9, 2026 Between Superclean Shine Enterprise Limited 1st Petitioner King Prime International Limited 2nd Petitioner Prime the Place Limited 3rd Petitioner Prime Auto and General Enterprises Limited 4th Petitioner and Kenya Railways Corporation 1st Respondent National Police Service 2nd Respondent Mr Philip J Mainga EBS Managing Director, Kenya Railways Corporation 3rd Respondent Chepkemboi Ocpd Railways 4th Respondent Douglas Kanja Kirocho, CBS, OGW Inspector General, National Police Service 5th Respondent Ruling Background 1.Before this court for determination is the 2nd-4th Petitioners’/Applicants’ Notices of Motions dated the 19th January, 2026 and 10th March, 2026. The Notice of Motion dated 19th January, 2026 is brought pursuant to the provisions of Articles 22, 23(3), 40, and 47 of the Constitution of Kenya, 2010, Section 13(7) of the Environment and Land Court Act and Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 seeking the following reliefs that:a.Pending the hearing and determination of this Petition, this Honourable Court be pleased to issue a temporary conservatory order restraining the Respondents either by themselves and/or or through the their agents, servants and/or anyone under their authority from evicting, dispossessing and interfering with the Applicant's quiet possession of and use of all that property situated off Lang'ata Road at km.532/6 measuring nought decimal five seven two three (0.5723) hectares of thereabouts or otherwise subsequently referenced and/or known as Plot Number 209/1618 situate along Douglas Wakiihuri Road (formerly known as Aerodrome Road), adjacent to Nyayo National Stadium, here Nairobi.b.Leave be granted to the Applicants to file, by way of Further Affidavits, further evidence in support of the Petition herein and in particular, in support of the compensatory claim arising from the demolition of the Applicants' premises and properties.c.The conservatory orders herein be served upon and be enforced by the Officer Commanding Police Division (OC(R)PD) -Lang'ata Sub-County.d.Costs of this Application be provided for. 2.The Motion is supported by the affidavit of Paul Kimani Wamatangi, the Managing Director of the 2nd Petitioner/Applicant herein who deponed that at all material times, the 1st Respondent was the proprietor of all that parcel of land situate off Lang'ata Road at km.532/6 measuring 0.5723 hectares or thereabouts or otherwise subsequently referenced and/or known as Plot Number 209/1618 (hereinafter referred to as "the suit property"), situate along Douglas Wakiihuri Road (formerly known as Aerodrome Road), adjacent to Nyayo National Stadium, in Nairobi. 3.He deponed that the 1st Respondent, as lessor, leased the suit property to the 2nd Applicant, as lessee, pursuant to a lease agreement entered into on or about 2nd May 2001 for a period of ninety-nine (99) years and that pursuant thereto, the 2nd Applicant lawfully took possession of the suit property, established businesses thereon, and has remained in continuous occupation for a period now exceeding twenty-five (25) years, during which period the lease has subsisted and remains valid. 4.He explained that, in furtherance of the purpose for which the suit property was leased, and with the knowledge, consent, and/or continued acquiescence of the 1st Respondent, the 2nd Applicant undertook extensive developments on the suit property at considerable cost and that it erected various commercial structures and facilities, which were thereafter utilized both by itself and by third parties, including the 1st Petitioner herein, and its co-Applicants who occupied portions of the premises as tenants and conducted their respective businesses therefrom. 5.The developments on the suit property, he stated, comprised, among other facilities, a carpet and home-cleaning business, a fully operational car wash, a hotel, a bakery, several retail shops, a showroom, a fully operational garage, an office block, and a multi-storey commercial building and that these developments were established at substantial expense and have, over the years, become the foundation of numerous business enterprises operating from the suit property. 6.Collectively, he explained, the businesses employ in excess of 150 persons directly on site and support a further 500 persons indirectly off site, while generating monthly revenues exceeding Kshs. 20,000,000 and that on or about 17th December, 2025, the 1st Respondent's officers, agents, servants and/or employees unlawfully entered upon the 2nd Applicant’s premises situate on the suit property and issued them with verbal notices and/or threats of eviction, together with notices and threats of demolition of the structures and developments lawfully erected by them on the false allegation that they were unlawfully occupying the suit property. 7.It was deposed by the 2nd Applicant’s Director that based on the threat of eviction and demolition of its property, the 1st Petitioner herein moved to the Environment and Land Court Division of the Chief Magistrates' Courts at Milimani vide Suit No. MCELC/E1155/2025: Super clean Shine Enterprise Limited vs Kenya Railways Corporation & The Hon. Attorney General which suit was filed on 19th December, 2025 contemporaneously with an application for orders of injunction restraining Kenya Railways Corporation and/or its agents from interfering with its quiet possession of and use of the suit property as well as orders restraining the Respondents from demolishing the entire business premises. 8.He explained that in that matter, the Magistrates' Court, on 13th January, 2026, issued interim orders of injunction restraining the Respondents and/or their agents from evicting the 1st Petitioner, and/or demolishing, damaging or otherwise interfering with the entire suit premises pending the inter partes hearing of the application dated 19th December, 2025. 9.Despite full knowledge and service of the said orders, it was deposed that the Respondents willfully, deliberately and in flagrant disobedience thereof proceeded, during the night of 13th January, 2026 extending into the early hours of 14th January, 2026, to demolish the 1st Petitioner and other Applicants’ business premises and destroyed property valued in millions of shillings. 10.In particular, it was deposed that the unlawful demolition occasioned the complete destruction of all developments erected on the suit property, with the loss estimated at approximately Kshs. 300,000,000; that the demolitions not only affected the Applicants but also had far-reaching consequences for employees working on the premises, tenants, and other persons whose livelihoods depended on the developments and that many suffered loss of property, disruption of business operations, and displacement as a direct consequence of the impugned actions. 11.He deponed that the losses occasioned include, but are not limited to, the destruction and/or loss of construction equipment that was on site at the time of the demolition valued at over Kshs. 200,000,000; destruction of motor vehicles situated on the premises valued at in excess of Kshs. 100,000,000 and loss of rental income estimated at a net monthly sum of Kshs. 15,000,000. 12.Following the demolition, he explained, the Respondents have threatened to continue to unlawfully assert control over the suit premises, and there exists an imminent risk that the Applicants may be denied access, dispossessed, or prevented from the use of the suit premises despite the subsisting lease. 13.According to the deponent, on 15th January 2026, the 1st Respondent's officers, in the company of over one hundred (100) police officers, visited the suit premises and commenced mapping out the area with the intention of dispossessing them, and further proceeded to make arrangements to cordon off and fence to lock out the Applicants from the premises in blatant usurpation of the 2nd Applicant's subsisting lease. 14.It was deposed by the 2nd Applicant’s Director that on 17th January 2026, the 1st Respondent, in the company of several police officers serving under the 2nd Respondent, visited the suit premises with a train and commenced loading onto the train all the remaining rubble and salvageable goods belonging to the Applicants, which were, thereafter carted away to an unspecified and undisclosed location. 15.He maintained that the acts, omissions and violations complained of above took place and continue to subsist notwithstanding the fact that the 2nd Applicant's leasehold interest over the suit property, and by extension, the 1st Petitioner and the 3rd and 4th Applicants tenancies as well as the tenancies of other business owners with the 2nd Applicant remains valid, subsisting and enforceable. 16.It is the deponent’s position that the Respondents' continued acts and omissions, unless restrained by the court, threaten to further deprive them of access to and enjoyment of the suit property, including their ability to undertake income-generating activities under a leasehold interest with seventy-four (74) years remaining. The deponent further avers that the Respondents’ conduct jeopardizes the Applicants’ ability to preserve, secure and document evidence arising from the alleged unlawful demolitions, thereby hampering efforts to accurately assess, quantify and substantiate the losses suffered. 17.He urged that unless the court intervenes, the Applicants' capacity to effectively prosecute their claim for compensation will be significantly prejudiced. Moreover, such conduct is said to undermine the authority of the court and impede the effective implementation of its orders and processes. 18.He maintained that the Respondents' actions were carried out selectively, maliciously and in bad faith, as other neighboring properties and developments similarly situate on land owned or controlled by the 1st Respondent were not subjected to eviction or demolition, thereby exposing the Applicants to unequal and discriminatory treatment contrary to Article 27 of the Constitution. 19.Further, it was deposed, the Respondents did not obtain or present any valid demolition orders, warrants, environmental impact reports, safety assessments, or approvals from any statutory body including the County Government of Nairobi, National Construction Authority, or National Environment Management Authority prior to undertaking the demolitions. 20.More still, it was argued, the manner in which the demolitions were conducted at night, without notice, and under heavy police presence was calculated to instill fear, panic and humiliation upon the Applicants, their employees and tenants, thereby violating their inherent right to dignity under Article 28 of the Constitution. 21.It is the Petitioners’ case that the Applicants were denied an opportunity to retrieve movable property, business records, equipment, inventory, machinery, tools, and personal effects prior to the demolitions, and that no inventory, valuation, or handover was conducted by the Respondents before the destruction and removal of the property. 22.The Respondents' actions, it was averred, has caused severe reputational harm to the Applicants, disruption of long-standing commercial relationships with clients, financiers and suppliers, loss of goodwill built over decades and exposure to contractual penalties and litigation from third parties arising from abrupt business interruption and that the Applicants and several of their directors, employees and tenants have suffered psychological distress, trauma and anxiety as a direct result of the violent and abrupt demolitions, displacement and uncertainty caused by the Respondents' actions, necessitating psychosocial support and medical intervention in some cases. 23.It was urged that the interests of justice warrant the court’s interference so as to protect the Applicants’ rights to property, fair administrative action, and lawful tenancy as guaranteed under Articles 40 and 47 of the Constitution of Kenya, and the provisions of the Land Act. 24.In response, the 1st and 3rd Respondents, through the 1st Respondent’s Acting Corporation Secretary, Stanley Gitari, swore a replying affidavit dated 5th March 2026. He deponed that both the Petition and the Motion are incompetent and liable to be struck out for offending the doctrine of sub judice. 25.According to the deponent, the issues raised in the present proceedings are directly and substantially in issue in previously instituted suits involving the same subject matter, which suits are still pending before courts of competent jurisdiction to wit CM ELC Case No. 1155 of 2025: Super Clean Shine Enterprise Limited -vs- Kenya Railways Corporation & The Hon. Attorney General and CM ELC No. 1153 of 2019: King Prime International Limited & 4 Others -vs- Kenya Railways Corporation & The Hon. Attorney General. 26.He deponed that in the amended plaint dated 2nd December 2019 in CM ELC No. 1153 of 2019, the Applicants herein, together with the 1st Petitioner, sought declaratory and injunctive reliefs to safeguard their occupation, possession and use of the suit property under the alleged lease with the 1st Respondent. 27.The 1st Respondent’s Acting Corporation Secretary stated that the reliefs sought included declarations affirming their lawful occupation of the property and orders restraining the Respondents from demolishing structures, repossessing the land, or otherwise interfering with their possession and business operations. He further averred that the court issued injunctive orders on 7th July 2019, which, in his view, substantially mirror the preservatory orders sought in the present application. 28.He asserted that the suit property is also the subject of proceedings in Milimani CM ELC Case No. 1155 of 2025, Super Clean Shine Enterprise Limited vs Kenya Railways Corporation & The Hon. Attorney General. In that suit, he explained, the 1st Petitioner seeks, among other reliefs, a declaration that it is the lawful tenant and lessee of Plot No. 209/1618 situated along Douglas Wakiihuri Road, off Lang’ata Road (formerly Aerodrome Road), Nairobi, and is entitled to quiet possession thereof. 29.The deponent further stated that the 1st Petitioner also seeks declarations that the threatened eviction from, and demolition of, its business premises, structures and developments on the suit property are unlawful, unconstitutional, null and void. In addition, the 1st Petitioner seeks permanent injunction restraining Kenya Railways Corporation, its officers, agents, servants and employees from evicting it, demolishing its structures, or otherwise interfering with its occupation and developments on the suit property except in accordance with the law. 30.He added that, in those proceedings, the 1st Petitioner obtained status quo orders on 13th January 2026. Following the subsequent demolition of the disputed premises, the 1st Petitioner instituted contempt proceedings seeking, among other reliefs, temporary and permanent injunctive orders restraining the Respondents and the alleged contemnors from dispossessing it of Plot No. 209/1618, and that the application further sought a site visit by the court to ascertain the prevailing status on the ground and orders preserving the Petitioner’s possession, occupation and use of the property pending the determination of the suit. 31.According to the deponent, the reliefs sought in the present application are substantially similar to, and largely replicate, those sought in the contempt proceedings filed in Milimani CM ELC Case No. 1155 of 2025. 32.Without prejudice to the foregoing, the 1st Respondent disputed the Applicants’ claim that they are lawful tenants of the suit property. It was deponed that the purported lease agreement relied upon by them is invalid, fraudulent, and incapable of conferring any legal rights and that Kenya Railways Corporation, being a statutory corporation, contracts in its own name and not through individual officers such as one Peter Musyoka who allegedly entered into the contract on behalf of the Corporation. 33.Further, it was deposed that the alleged lease bears no corporate seal, was not executed in accordance with the corporation's procedures, and was witnessed only by a conveyancing clerk; that the alleged drawer of the lease agreement M.N Njuya Advocates, is also unknown to them and that the alleged lease agreement is a forgery, does not conform to the standard format used by Kenya Railways Corporation, and is not reflected in the Corporation's records. 34.According to the 1st Respondent, the property described in the agreement is inadequately and ambiguously identified, contrary to Order 4 Rule 3 of the Civil Procedure Rules, which requires immovable property forming the subject matter of litigation to be described with sufficient precision to enable identification on the ground. 35.The 1st Respondent also maintained that Kenya Railways Corporation does not grant 99-year leases and that any disposal of its land must comply with Section 14(4) of the Kenya Railways Corporation Act, which requires, among other things, approval by the board and the parent ministry and that the property claimed lies within the railway reserve and safety corridor, approximately ten metres from the railway line, and is therefore incapable of being leased to private parties. 36.It was explained that the railway reserve extends thirty metres on either side of the railway track and is preserved for operational, safety, maintenance, and future expansion purposes. Reliance was placed on Section 66 of the Kenya Railways Corporation Act, which criminalizes unauthorized interference with railway property. As such, it was deposed, the purported lease is illegal and contrary to public policy. 37.Lastly, the 1st Respondent acting Corporation Secretary deponed that a railway station is currently under construction on the suit property to serve the Madaraka area and facilitate transportation to Nyayo National Stadium, particularly in preparation for the Africa Cup of Nations tournament. It was asserted that the project serves a significant public purpose by reducing traffic congestion and enhancing public transport infrastructure. In the circumstances, the Petition and application are legally untenable, constitute an abuse of the court process, and ought to be dismissed with costs. 38.Vide a further affidavit dated 19th March, 2026, the Applicants, through Dr. Paul Kimani Wamatangi, deponed that contrary to the Respondents’ assertions, there is no other pending suit concerning the same subject matter as this Petition and the application dated 19th January, 2026. 39.At the onset, he urged that the question of whether the Petition and application are duplicative of CM ELC No. 1153 of 2019 and CM ELC Case No. 1155 of 2025, was conclusively determined by this court in its ruling delivered on 26th February 2026, arising from the 1st and 3rd Respondents' notice of preliminary objection and accordingly, the issue is res judicata and cannot be re-litigated. 40.Nonetheless, he explained, there is a clear and fundamental distinction between the Petition and the present application herein and the suits previously filed in the Magistrates' Courts, as identified by the 1st and 3rd Respondents; that in respect of CM ELC No. 1153 of 2019: King Prime International Limited & 4 Others vs. Kenya Railways Corporation & the Hon. Attorney General, the same was solely premised on the unlawful actions of the 1st and 3rd Respondents carried out on or about 15th February 2019 and that it is those actions that gave rise to the institution of that suit, which culminated in the orders issued by the Magistrates' Court on 27th February 2019. 41.It was deposed that following the grant of the said orders, the Applicants resumed and/or remained in occupation of the suit property without any interference from the Respondents; that the said suit was last in court on 18th December 2019, as confirmed by the 1st Respondent in its statement of defence dated 30th January, 2026 filed in Milimani CM ELC Case No. 1155 of 2025 and that consequently, by operation of Order 17 Rule 2(5) of the Civil Procedure Rules, the suit stood dismissed on 18th December 2021. 42.In respect of CM ELC Case No. 1155 of 2025: Super Clean Shine Enterprise Limited vs. Kenya Railways Corporation & the Hon. Attorney General, it was deposed that the suit and the application therein were instituted solely by the 1st Petitioner herein, without the involvement or participation of the 2nd, 3rd and 4th Applicants herein and that notably, the 1st Petitioner instructed a different firm of Advocates to represent it in this matter. 43.In any event, it was deposed, the said suit was filed to seek the court's intervention in response to threats issued by the Respondents on or about 17th December 2025, relating to the intended demolition of the 1st Petitioner's property and its eviction and that the reliefs sought in that suit were confined to the preservation of the 1st Petitioner's property and did not, in any way, include claims for compensation for the malicious demolition and destruction of property belonging to the Applicants herein, which forms the subject matter of the present Petition and Application. 44.The 1st Petitioner’s Director reiterated that from the foregoing, it is clear that the Applicants have not instituted any other suit concerning the subject matter of this Petition and the present application; that the present proceedings are specifically directed at addressing the unlawful demolition and malicious destruction of the Applicants' premises and properties and that none of the suits cited by the 1st and 3rd Respondents were instituted on the basis of such a claim. 45.Further, that the compensation sought by the Applicants for the said malicious and unlawful demolition and destruction far exceeds the pecuniary jurisdiction of the Magistrates' courts, thereby necessitating the institution of this Petition before this court. More still, only the instant Petition and application raises issues of violation, denial, infringement, and threatened violation of the Applicants' Constitutional rights, matters that lie exclusively within the jurisdiction of the High Court under Article 165(3) (b) of the Constitution. 46.The deponent reiterated that the 2nd Applicant lawfully entered into a lease agreement with the 1st Respondent in respect of the suit property and maintained that the allegations challenging the validity of the lease are false, misleading, and unsupported by any evidence. He averred that rent payable under the lease has consistently been paid and accepted by the 1st Respondent for over twenty-five years. 47.According to the deponent, the contention that the suit property was unavailable for leasing because it fell within a railway buffer zone is untenable, given that the 1st Respondent itself granted the lease and continuously received rent thereunder. He further asserted that the allegation that the lease agreement is a forgery is a mere assertion intended to misdirect the court, particularly as the 1st and 3rd Respondents have failed to tender any evidence in support of that claim. 48.It was deposed that contrary to the assertions by the 1st and 3rd Respondents, there is no ambiguity regarding the location, description, or identity of the suit property in respect of which the conservatory orders are sought. He stated that although the 1st and 3rd Respondents had previously removed rubble and other items following the impugned demolition, several heavy machines and rollers belonging to the Applicants and their affiliates remain on the premises. 49.The Notice of Motion dated 10th March, 2026 brought pursuant to the provisions of Articles 22, 23(3), 40, and 47 of the Constitution of Kenya, Rule 23 of the Constitution of Kenya (Protection of Right's and Fundamental Freedoms) Practice and Procedure Rules, 2013; and Section 13(5) of the Environment and Land Court Act seeks the following reliefs:i.That pending the inter partes hearing and determination of the Petition, this Honourable Court be pleased to issue conservatory orders preserving the status quo on the suit property situated off Lang'ata Road at km. 532/6 measuring approximately 0.5723 hectares or thereabouts, currently referenced and/or known as Plot Number 209/1618.ii.That pending the inter partes hearing and determination of the petition, the Respondents, whether by themselves, their agents, servants, employees, contractors or any other persons acting under their authority, be restrained from:a.Undertaking or continuing any construction, excavation, development, or structural works on the suit property.b.Bringing additional construction materials, machinery, or equipment onto the suit property.c.Removing, destroying, vandalizing, dismantling or otherwise interfering with machinery, rollers, equipment or any other property belonging to the Applicants remaining on the premises.iii.That pending the hearing and determination of the petition, the Respondents whether by themselves, their agents, servants, employees or anyone acting under their instructions be restrained from alienating, leasing, licensing, charging, transferring or otherwise dealing with or disposing of the suit property, the same being the subject matter of pending proceedings before this Honourable Court.iv.That pending the hearing and determination of the petition, the Applicants be granted access to the suit property for the limited purpose of salvaging, securing and documenting their machinery, rollers, equipment and other movable assets remaining on the premises and for subjecting the same to professional inspection and assessment to determine their residual value. 50.The Motion is supported by the affidavit Dr. Paul Kimani Wamatangi, who deponed, as in the Motion of 19th January, 2026, that the Applicants are corporate entities carrying on lawful business operations and were at all material times in possession of the suit property pursuant to a valid, subsisting and enforceable lease and that they are undertaking various businesses on the property. 51.It was deposed that on the night of 13th January 2026, the Respondents, through their agents and officers, unlawfully and without notice demolished the Applicants' business premises and developments on the suit property and that as a consequence, they suffered substantial loss, including destruction of buildings, business infrastructure and disruption of ongoing commercial operations. 52.He explained that they subsequently filed a Petition on 20th day of January, 2026, together with an application under certificate of urgency dated 19th day of January, 2026, seeking redress for the unlawful demolition and violation of their constitutional rights and that the Petition challenges the Respondents' actions as unconstitutional and unlawful and seeks, inter alia, protection of the Applicants' proprietary interests in the suit property. 53.He deponed in compliance with the directions issued by the court on 21st January 2026, the Applicants duly effected service of the Petition, application and the court's orders upon the 1st, 2nd, 3rd and 5th Respondents on 22nd January 2026, while the 4th Respondent was served on 23rd January 2026 as evinced by the affidavits of service on record. 54.Despite being duly served with the pleadings herein and court directions requiring the filing of responses within the prescribed timelines, the Respondents failed and/or neglected to comply, with the 1st and 3rd Respondents instead filing a misguided preliminary objection dated 16th February, 2026 on the morning of 17th February 2026, which was the scheduled hearing date for the Applicants' Application of 19th January, 2026. 55.According to the 1st Petitioner’s Director, the preliminary objection was subsequently dismissed with costs on 26th February 2026, thereby paving the way for the hearing of the Applicants' application dated 19th January, 2026, which is now scheduled for mention on 23rd March, 2026 to confirm the filing of responses and submissions and that under the doctrine of lis pendens, parties to a suit are prohibited from undertaking acts capable of altering the character, possession or condition of the property in dispute pending determination of the case. 56.It is the Petitioners’ case that notwithstanding the pendency of this Petition and the earlier applications before the court, the Respondents have commenced construction activities on the suit property and that they have brought onto the premises various construction materials, including sand, gravel, iron sheets and steel rods, and have deployed construction workers to the site, with construction works appearing to be ongoing. 57.He further deponed that although the Respondents had previously carted away rubble and other items belonging to the Applicants following the demolition, he has since learned that several heavy machines and rollers belonging to the Applicants and their affiliates remain on the suit property. He stated that he has also received information that the said machinery and equipment are currently being vandalized, dismantled and/or unlawfully removed by persons acting under the authority or direction of the Respondents. 58.According to him, the continued interference with the Applicants’ machinery and equipment exposes them to the risk of permanent loss of valuable assets. He expressed apprehension that, unless restrained by this court, the Respondents will continue with the ongoing construction activities and further interfere with the Applicants’ remaining property on the premises. Such actions, he contended, are likely to irreversibly alter the substratum of the dispute, compromise the preservation of evidence, and ultimately defeat the purpose of the pending Petition and the reliefs sought therein. 59.In response to the present application, the 1st and 3rd Respondents relied on the replying affidavit sworn on 5th March 2026 and adopted its contents as their response herein. Submissions 60.The Applicants filed submissions on 19th day of March 2026. Counsel submitted that the requirement for prior notice under Section 87(a) of the Kenya Railways Corporation Act and Section 13A of the Government Proceedings Act ought to be waived in the interests of justice, fairness, and access to justice. 61.It was argued that the Applicants acted promptly and in good faith, that no prejudice had been occasioned to the Respondents, and that insistence on compliance would defeat urgent constitutional relief in the face of ongoing violations and the risk of further dispossession. Reliance was placed on Designs Unlimited Limited & another vs Kenya Railways Corporation [2022] KEELC 13394 (KLR), where the court held that failure to issue the statutory notice was not fatal to a suit. 62.According to counsel, the Applicants satisfied the threshold for the grant of conservatory orders. It was contended that the 2nd Applicant holds a valid ninety-nine-year lease over the suit property from the 1st Respondent, has been in occupation for over twenty-five years, and has invested substantial resources in commercial developments on the land. Counsel argued that despite the subsistence of the lease, the Respondents unlawfully entered the property, threatened them with eviction, and demolished the Applicants’ developments on 13th and 14th January 2026, causing losses estimated at Kshs. 300 million. 63.It was further submitted that the Respondents continue to threaten them with further dispossession and interfere with machinery and equipment remaining on the premises, thereby exposing the Applicants to irreparable harm. Relying on Gatirau Peter Munya vs Dickson Mwenda Kithinji & 2 Others [2014] KESC 30 (KLR), counsel maintained that the Applicants have established a prima facie case, an imminent risk of harm, and public interest considerations warranting preservation of the status quo pending determination of the Petition. 64.Further, it was urged, leave should be granted to enable the Applicants file further affidavits containing additional evidence, including valuation reports, inventories and documentation of the losses allegedly suffered, arising from developments that have occurred since the filing of the Petition. 65.Finally, it was submitted that any conservatory orders granted should be enforced through the OCPD Lang’ata Sub-County to ensure compliance and prevent further violations. Counsel therefore urged the court to allow the application on the basis that the Applicants had demonstrated ongoing violations of their constitutional rights, irreparable harm, and the need for urgent judicial intervention. 66.The 1st and 3rd Respondents’ counsel filed their submissions on 6th April 2026. At the onset, it was submitted that the application and the Petition should be struck out on account of contravening the doctrine of sub judice, there being similar proceedings pending in Milimani CM ELC Case No. E1155 of 2025, Super Clean Shine Enterprise Limited v Kenya Railways Corporation & the Hon. Attorney General, and Milimani CM ELC Case No. 1153 of 2019, King Prime International Limited & 4 Others vs Kenya Railways Corporation & the Hon. Attorney General. 67.Reliance was placed on the decision of the Supreme Court in Kenya National Commission on Human Rights vs Attorney General; Independent Electoral and Boundaries Commission & 16 Others (Interested Parties), Advisory Opinion Reference No. 1 of 2017 [2020] KESC 54 (KLR), for the principles governing the doctrine of sub judice. 68.Counsel further submitted that the lease relied upon by the Applicants is invalid and unenforceable. It was argued that the property purportedly leased could not be legally identified, as the description contained in the lease referred only to a railway chainage rather than a specific and ascertainable parcel of land. 69.Counsel additionally contended that the lease was not executed by an authorized officer of the Kenya Railways Corporation, did not bear the Corporation’s seal, and purported to alienate a public railway asset that was incapable of private disposition. More still, it was deponed that the agreement was executed by an individual rather than the Corporation and was not supported by the approvals required under Section 14(4) of the Kenya Railways Corporation Act, including approval by the board and the parent ministry. On that basis, counsel maintained that the lease was a forgery and incapable of conferring any legal rights upon the Applicants. 70.It was argued that the purportedly leased property forms part of the railway reserve, which is protected for safety, operational purposes, and future railway expansion, and that unauthorized interference with railway property constitutes an offence under Section 66 of the Act. 71.Counsel asserted that on account of the fraudulent transfer espoused above, the Applicants have not demonstrated a prima facie case and are not entitled to the plea for injunctive relief as sought. Finally, it was urged, public interest militates against the grant of the orders sought. Analysis and determination 72.Having considered the pleadings, responses and submissions, the issues that arise for determination are:i.Whether this Petition and Applications offend the mandatory provisions of Section 87(a) of the Railways Corporation Act?ii.Whether the Petition and Applications contravene the doctrine of res sub judice and if not?iii.Whether the Applicants have established their plea for the grant of conservatory orders? Whether this Petition and Applications offends the mandatory provisions of Section S.87 (a) of the Railways Corporation Act? 73.The first issue concerns the effect of the Petitioners’ admitted failure to issue the statutory notice contemplated under Section 87(a) of the Kenya Railways Corporation Act before instituting the present petition. The Applicants contend that the notice requirement ought not to operate as a bar to the proceedings, given that the Petition alleges violations of constitutional rights and arose in circumstances requiring urgent intervention by the court. 74.Although the 1st and 3rd Respondents did not specifically pursue the issue, the requirement prescribed under Section 87(a) of the Kenya Railways Corporation Act touches on the competence of proceedings commenced against the Corporation and is therefore a matter that this court must consider before proceeding further. 75.Section 87(a) of the Kenya Railways Corporation Act provides as follows:“Where any action or other legal proceedings is commenced against the corporation for any act done in pursuant or execution, or intended execution, of this Act or any public duty or authority or in respect of any alleged neglect or default in execution of this Act or of any such duty or authority, the following provisions shall have effect-(a)the action or legal proceeding shall not be commenced against the corporation until at least one month after notice containing the particulars of the claim, and of intention to commence the action or legal proceedings, has been served upon the managing director by the plaintiff or his agent; and” 76.A plain reading of the provision shows that where a claim arises from acts undertaken by the Corporation in the exercise, or purported exercise, of its statutory mandate, proceedings against the Corporation cannot be commenced unless at least thirty days' prior notice of the intended action has been served upon the Managing Director. 77.So, is the non-compliance with that requirement fatal to the present Petition and subsequently the Motion? In addressing a similar question, the Court of Appeal in Joseph Nyamamba & 4 Others vs Kenya Railways Corporation [2015] eKLR cited with approval the reasoning of Majanja J in Kenya Bus Services Limited & Another vs Minister of Transport & 2 Others [2012] eKLR. 78.In that case, the learned Judge considered the effect of Section 13A of the Government Proceedings Act, a provision analogous to Section 87(a) of the Kenya Railways Corporation Act, which requires notice to be given before instituting proceedings against the Government. The court examined the interplay between such statutory notice requirements and the constitutional right of access to justice, and observed as follows:“By incorporating the right of access to justice, the Constitution requires us to look beyond the dry letter of the law. The right of access to justice is a reaction to and a protection against legal formalism and dogmatism...Article 48 must be located within the Constitutional imperative that recognizes as the Bill of Rights as the framework for social, economic and cultural policies. Without access to justice the objects of the Constitution which is to build a society founded upon the rule of law, dignity, social justice and democracy cannot be realized for it is within the legal processes that the rights and fundamental freedoms are realized. Article 48 therefore invites the Court to consider the conditions which clog and fetter the right of persons to seek the assistance of courts of law.Viewed against the prism of the Constitution, it also becomes evident that section 13A of the GPA provides an impediment to access justice. Where the state is at the front, left and centre of the citizens life, the law should not impose hurdles on accountability of the Government through the Courts. An analysis of the various reports from Commonwealth which I have cited clearly demonstrate that the requirements for notice particularly where it is strictly enforced as a mandatory requirement diminishes the ability of the citizen to seek relief against the government. It is my finding that section 13A of the Government Proceedings Act as a mandatory requirement violates the provision of the Article 48.” 79.Indeed, this court sitting in Machakos also rendered an opinion on the same in the case of Catherine Njeri Majani vs Kenya Railways Corporation & Another [2021] eKLR thus:“Considering the provisions of Article 48 of the Constitution which requires the state to ensure access to justice for all persons, and the pronouncement of the superior courts on the applicability of Section 87 (a) of the Kenya Railways Corporation Act, it is my finding that the failure by the Plaintiff to issue to the 1st Defendant a thirty (30) days’ notice, if at all, is not fatal to the suit”. 80.The common thread running through the foregoing decisions is that statutory notice provisions such as Section 87(a) of the Kenya Railways Corporation Act must be interpreted in a manner that accords with the Constitution and, in particular, the right of access to justice guaranteed under Article 48. The court is therefore enjoined to balance the purpose of the notice requirement against the constitutional imperative of ensuring effective access to judicial remedies. Ultimately the court finds that the failure to issue such a notice does not render the Petition and Motions fatal.Whether the Petition and Applications contravene the doctrine of res sub judice? 81.The concept of sub judice is codified under Section 6 of the Civil Procedure Act. It provides thus:“No Court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly and substantially in issue in a previously instituted suit or proceeding between the same parties, or between parties under whom they or any of them claim, litigating under the same title, where such suit or proceeding is pending in the same or any other Court having jurisdiction in Kenya to grant the relief claimed” 82.This doctrine prevents a court from determining a matter in which the issue is substantially in issue in another suit, before a competent court and between the same parties and/or their representatives. 83.Speaking to its rationale, the Supreme Court in Kenya National Commission on Human Rights vs Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties [2020] eKLR stated as follows:“The term ‘sub-judice’ is defined in Black’s Law Dictionary 9th Edition as: “Before the Court or Judge for determination.” The purpose of the sub-judice rule is to stop the filing of a multiplicity of suits between the same parties or those claiming under them over the same subject matter so as to avoid abuse of the Court process and diminish the chances of courts, with competent jurisdiction, issuing conflicting decisions over the same subject matter. This means that when two or more cases are filed between the same parties on the same subject matter before courts with jurisdiction, the matter that is filed later ought to be stayed in order to await the determination to be made in the earlier suit. A party that seeks to invoke the doctrine of res sub-judice must therefore establish that; there is more than one suit over the same subject matter; that one suit was instituted before the other; that both suits are pending before courts of competent jurisdiction and lastly; that the suits are between the same parties or their representatives.” 84.The Court of Appeal in Mwakaneno vs Registrar of Titles, Mombasa & 7 others (Civil Appeal E104 of 2022) [2026] KECA 296 (KLR) (20 February 2026) (Judgment) reaffirmed that a party cannot avoid the doctrine merely by re-framing a dispute. In that case, the court agreed with the trial court that the constitutional Petition was simply a reframing of an existing civil suit by adding constitutional issues. The court was categorical that a court must therefore interrogate the real controversy between the parties, the parties litigating, the subject matter, the reliefs sought and the practical effect of any judgment that may be issued. 85.The 1st - 3rd Respondents have urged the court to find that the present Petition and the Motions offend the doctrine of sub judice on account of the existence of Milimani CM ELC No. 1153 of 2019, King Prime International Limited & 4 Others vs Kenya Railways Corporation & Others, and Milimani CM ELC No. 1155 of 2025, Superclean Shine Enterprise Limited v Kenya Railways Corporation & the Hon. Attorney General. 86.They contend that the three proceedings concern the same parcel of land, namely Plot No. 209/1618 situated along Douglas Wakiihuri Road (formerly Aerodrome Road), off Lang'ata Road, adjacent to Nyayo National Stadium; arise from the same alleged lease granted by the 1st Respondent in 2001; involve substantially the same contest over occupation and possession; and seek injunctive or declaratory relief restraining eviction, demolition, repossession and interference. 87.According to the Respondents, the Petition and Motions invite this court to determine matters that are already before the Magistrates’ court, thereby exposing the parties to parallel proceedings and the real risk of conflicting decisions. 88.In response, the Applicants contend that, first, the objection is res judicata because the issue was raised and determined in this court’s ruling of 26th February, 2026 while considering the Respondents’ preliminary objection. They further opine that the suits referenced are distinct from the present Petition one of which has in any event since abated. 89.As regards the contention that the question on sub judice is res judicata, having considered the record in this regard, the court notes that it declined to pronounce itself substantively on the question because the pleadings and proceedings in the alleged earlier suits had not been placed before it. The court therefore did not undertake the comparative inquiry required under Section 6 of the Civil Procedure Act. There was, consequently, no final adjudication capable of grounding a plea of res judicata. 90.The court has considered the referenced matters. CM ELC No. 1153 of 2019 was instituted by the Plaintiff, being one of the the Applicants herein as well as the 2nd Petitioner who asserted that they are lawful occupants of the suit property pursuant to a lease entered into with Kenya Railways Corporation in 2001. 91.They pleaded that they had taken possession, developed the property and licensed other entities to operate businesses thereon. They sought, among other reliefs, a declaration that they were the lawful occupants of the land and permanent injunctive orders restraining demolition, repossession or interference with their possession and business operations. 92.The position taken by the Applicants is that CM ELC No. 1153 of 2019 is no longer a pending suit capable of sustaining a plea of sub judice. The court notes that in their statement of defence dated 30th January 2026 filed in CM ELC No. E1155 of 2025, the 1st -3rd Respondents themselves pleaded that the said suit "was last in court on 18th December 2019 and was subsequently abandoned by the Plaintiff, demonstrating a pattern of abuse of court process." That assertion has not been controverted. 93.Order 17 Rule 2(5) of the Civil Procedure Rules provides that where no application has been made or step taken by either party for a period of two years, the suit shall stand dismissed. The legal effect of the provision is that dismissal of a suit may occur by operation of law and is not dependent upon the issuance of a formal dismissal order. 94.In the absence of any evidence that steps were taken in the matter after 18th December 2019, and there being an express admission by the Respondents that the suit was abandoned, this court is prepared to find that CM ELC No. 1153 of 2019 stands dismissed by operation of Order 17 Rule 2(5) of the Civil Procedure Rules and is therefore not a pending suit for purposes of Section 6 of the Civil Procedure Rules. 95.Moving to CM ELC No. 1155 of 2025, in that suit, the 1st Petitioner herein, Super Clean Shine Enterprise Limited, is the only Plaintiff. It pleaded that it is the lawful tenant and lessee of Plot No. 209/1618 and that Kenya Railways Corporation had threatened to evict it and demolish its developments. 96.It seeks therein declarations that it is entitled to quiet possession, that the threatened eviction and demolition were unlawful and unconstitutional, and an injunction restraining eviction, demolition or interference with its occupation and developments. The Magistrates’ Court subsequently issued injunctive orders on 13th January 2026 restraining eviction, dispossession, demolition and interference pending inter partes hearing of the application. 97.According to the Applicants, that suit is distinguishable from the present Petition because it was instituted solely by Super Clean Shine Enterprise Limited. That contention, however, does not withstand scrutiny. Admittedly, Super Clean Enterprise Limited is not a stranger to these proceedings, it is the 1st Petitioner herein and, on the Applicants’ own case, occupies and conducts business on the suit property pursuant to the same lease said to have been granted by the 1st Respondent. 98.As such, the fact that the earlier suit was filed by the 1st Petitioner alone does not materially diminish the overlap between the two proceedings. If that is so, why would the 1st Petitioner be included in this suit? Nothing would have been easier than the other Petitioners filing this suit to the exclusion of the 1st Petitioner which was, and is still is, litigating in the lower court in respect to the same suit property. 99.Further, upon a careful comparison of the pleadings and reliefs sought in the two proceedings, the court is satisfied that the constitutional framing of the present Petition does not alter the substance of the dispute. At the heart of both matters lies the question whether the Petitioners' occupation of Plot No. 209/1618 is lawful; whether the lease under which they claim rights over the property is valid and enforceable; whether the Respondents were entitled to re-enter, repossess, or otherwise interfere with the property; and whether the eviction, demolition and continued occupation of the land by the Respondents was lawful. Those are substantially the same questions that fall for determination in MC ELC No. E1155 of 2025. 100.Indeed, the overlap is evident from the reliefs sought. In the present Petition, the Petitioners seek, inter alia, for a permanent injunction restraining the Respondents from interfering with, evicting, demolishing, or encroaching upon the suit property pending the determination of the lease for the unexpired term of seventy-four years. 101.Such a prayer necessarily invites the court to determine the legitimacy, validity, and enforceability of the very lease upon which the Petitioners predicate their continued occupation of the land. Equally, in MC ELC No. E1153 of 2025, the Plaintiff, who is the 1st Petitioner herein, seeks declarations that it is a lawful tenant of the suit property, that the threatened eviction and demolition are unlawful, and a permanent injunction restraining the Defendants from evicting it or interfering with its structures and developments on the land. 102.Consequently, save for the additional constitutional and compensatory reliefs sought in the Petition, the foundational issues requiring adjudication are materially the same. A determination by either court on the validity of the lease, the legality of the Petitioners' occupation, or the Respondents' right to repossess the property would inevitably bear directly upon, and potentially determine, the issues pending before the other court. 103.The Court of Appeal’s reasoning in Mwakaneno (supra) is instructive. Where a constitutional Petition seeks reliefs, whose practical effect is to resolve issues already pending in ordinary land proceedings, the court must guard against parallel adjudication disguised as constitutional enforcement. This position becomes even more pronounced when one examines the interlocutory applications pending before the respective courts. 104.In MC ELC No. E1155 of 2025, the Magistrates’ Court not only issued interim injunctive orders on 13th January 2026 restraining eviction, demolition and interference with the Applicant’s possession of Plot No. 209/1618, but there also remains pending before that court a substantive application for injunctive relief together with contempt proceedings arising from the alleged breach of those very orders. 105.The contempt application seeks, inter alia, orders restraining the Respondents from dispossessing the Applicant, denying it access to the suit property, fencing, cordoning off or otherwise interfering with its possession and use of the property pending determination of the suit. 106.The conservatory orders sought in the present Motions substantially mirror the reliefs already sought and pending before the Magistrates’ Court. The Applicants seek orders restraining interference with their possession, preventing any further dealings with the suit property, preserving the status quo on the land and regulating access thereto. Those are, in substance, the very preservatory questions that the Magistrate’s Court has already been called upon to determine. 107.The court must ask itself what would happen were it to proceed and grant conservatory orders while the Magistrate’s Court, upon hearing the pending applications, was to decline injunctive relief or arrive at a different conclusion regarding possession, occupation or the propriety of the Respondents’ actions. Equally conceivable is the converse situation, namely that the Magistrate’s Court may affirm and extend its interim orders while this court reaches a contrary determination on the same issues. 108.Such an outcome would result in two courts of competent issuing parallel and potentially inconsistent orders over the same property, against the same Respondents and arising from the same dispute. That is precisely the mischief which the doctrine of sub judice seeks to avert. The doctrine is not merely concerned with identity of causes of action or form of proceedings; it is intended to preserve orderly administration of justice by preventing concurrent adjudication of substantially the same controversy before different courts. 109.In the premises, this court is satisfied that the present Petition and the interlocutory applications fall within the ambit of Section 6 of the Civil Procedure Act. The court is further persuaded that permitting both matters to proceed simultaneously would create a real risk of conflicting decisions, undermine the orderly administration of justice and encourage forum-shopping. 110.The interests of justice are better served by allowing the court first seized of the dispute to determine the issues pending before it, if it finds it has jurisdiction, without the risk of parallel findings from another court of concurrent or appellate jurisdiction. Any subsequent issues in this Petition, namely issues on compensation, may then proceed after the primary issues, including the legality of the impugned lease (s) have been resolved in the pending suit in the lower court. Alternatively, the 1st Petitioner has the option of withdrawing the suit in the lower court, and proceed with the current suit. 111.In the end, the court finds as follows:a.The Notices of Motion dated 19th January, 2026 and 10th March, 2026 be and are hereby struck out with costs.b.The interim orders of injunction granted by this court are hereby vacated.c.Save for the pending contempt proceedings against the Respondents, the present Petition is stayed pending the hearing and determination of Milimani CM ELC No. E1155 of 2025 which is pending before the Magistrates Court, or withdrawal of the said suit by the 1st Petitioner (the Plaintiff therein). DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 9TH DAY OF JULY, 2026.O. A. ANGOTEJUDGEIn the presence of:No appearance for the 1st PetitionerMr. Ligunya and Amimo for the 2nd and 3rd Petitioners/ApplicantsMr. Obuya for the 1st RespondentCourt Assistant: Tracy