Kenya Railways Corporation v Bilal & 14 others (Petition (Application) E023 of 2025) [2026] KESC 14 (KLR) (30 January 2026) (Judgment)

Key Facts

Issues

• The applicant argued that the Court of Appeal improperly shifted the burden of proof, placing it on them to demonstrate non-compliance rather than requiring the respondents to prove their claims.
• The applicant contended that the Court of Appeal's endorsement of the respondents' claims based on historical occupation without formal documentation could undermine Kenya's established formal land tenure system.
• The respondents alleged that the eviction by Kenya Railways violated their socio-economic and cultural rights, including access to property, life, human dignity, and educational institutions, as affirmed by the Environment and Land Court and the Court of Appeal.
• The applicant argued that colonial-era temporary occupation licenses issued in 1938 to Nubian families did not confer enforceable property rights, while the respondents claimed these licenses established their legal occupation.
• The dispute centered on whether Kenya Railways Corporation adhered to the statutory eviction procedures outlined in Section 152B of the Land Laws (Amendment) Act 2016, including proper notice and due process.
• The court considered whether it has jurisdiction under Article 163(4) of the Constitution to stay proceedings in the Environment and Land Court, referencing the Dande case which limited such jurisdiction to Court of Appeal decisions.
• The 13th respondent argued that long-term occupation of public land by the Nubian community creates protectable interests under Article 43 of the Constitution, which the Supreme Court must consider in granting conservatory relief.
• The 13th respondent contended that Kenya Railways approached the court with unclean hands, aiming to delay enforcement of lawful judgments, citing the Mitu-Bell Welfare Society case.

Holdings

• The Court concluded that the application for conservatory orders lacked merit and was therefore dismissed, with costs to abide the outcome of the appeal.
• The Supreme Court held that its jurisdiction to grant stay orders is limited to decrees or orders of the Court of Appeal or further proceedings before that Court, as affirmed in the Dande case. It ruled that the applicant's request to stay proceedings in the Environment and Land Court (ELC) was outside its jurisdiction.

Remedies

• The Motion dated 27th May 2025 and filed on 30th May 2025 is hereby dismissed.
• The costs of this Application shall abide the outcome of the appeal.

Legal Principles

• The Court underscored adherence to statutory eviction procedures and constitutional obligations, rejecting arguments that colonial-era occupation licenses or historical claims could override formal legal frameworks. It affirmed that lawful judgments must be respected absent compelling justification for suspension.
• The applicant (Kenya Railways) failed to demonstrate a prima facie case or risk of irreparable harm necessary for conservatory orders. The Court noted insufficient evidence of substantial loss or justification to suspend enforcement of judgments affirming respondents' constitutional rights.
• The Supreme Court reviewed the Court of Appeal's decision to uphold the trial court's finding that Kenya Railways' evictions violated constitutional rights and statutory procedures under Section 152B of the Land Laws (Amendment) Act 2016. The Court emphasized that failure to comply with due process requirements rendered the eviction irregular and unlawful.

Precedent Name

• Munya Vs Kithinji & 2 others
• Cabinet Secretary for the National Treasury and Planning & 4 others Vs Okoiti & 52 others
• Salaries and Remuneration Commission Vs Judicial Service Commission
• Dande & 3 others Vs Director of Public Prosecutions
• Kwale Sugar International Co. Ltd Vs EPCO Builders Ltd
• Peter Ayodo Omenda & 6 others v Ethics & Anti-Corruption Commission & 2 others
• Cyrus Shakhalaga Khwa Jirongo v Soy Developers Limited & 9 others
• Freedom Limited Vs Mbarak
• Dina Management Limited Vs County Government of Mombasa & 5 others

Cited Statute

• Constitution of Kenya
• Supreme Court Act
• Land Laws (Amendment) Act 2016

Judge Name

• Wanjala
• Mwilu
• Koome
• Lenaola
• Njoki

Passage Text

• [13]...This Court's jurisdiction to grant stay orders is confined to decrees or orders of the Court of Appeal, or to further proceedings before that Court, as provided under Article 163(4) (a) and (b) of the Constitution...and does not extend to orders/decrees of or proceedings pending before the Environment and Land Court, as sought in the present application.
• [14]...i) The Motion dated 27th May 2025 and filed on 30th May 2025 is hereby dismissed. ii) The costs of this Application shall abide the outcome of the appeal.
• [12]...it is fairly elementary that this Court can only grant an order of stay of a decree or order of the Court of Appeal...and not of proceedings that were pending before the Magistrate's Courts...