Court blocks Kenya Railways from fencing land in Kisumu

The Environment and Lands Court has barred Kenya Railways Corporation (KRC) from either demolishing, evicting or fencing property in Kisumu County.

Kenya Railways had started a fresh exercise of fencing off parcels of land near the railway line claiming that it owned the same.

However, Justice Esther Asati found that KRC admitted that the affected owners had titles and surveys confirming ownership.

Justice Asati ordered the state corporation to stop fencing the property until the separate cases are heard and determined.

“It is not denied that the plaintiffs have title to the land which they believe is the land the defendant is fencing off. It is also not denied that the fencing by the defendant blocks certain roads of access which have been in use for a long time. The photographs annexed to the application confirm this. The defendant does not deny undertaking the acts complained of but its case is that it was justified to do so,” she said.

Kenya Railways had started demolition of structures on the property and fencing last year. However, the Lands Court issued orders against the same.

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However, the state corporation continued with the exercise along Lela Aboge, Lela Holo, Lela Sungo and Lela Eluhobe roads.

It also fenced off Mason Ogendo, Kisian Africa Inland Church (AIC) road, Orongo-Orao, Sisian River Road, Alai Road and Asindi Road.

This prompted the residents in the affected areas to seek the court’s intervention.

Those in court are Dr Pius Shem Owino, Prof Paul Odundo, Daniel Otiende, Richard Odhiambo, Carolyne Loyce and members of Karateng Self-help Group.

The second case was filed by Kisian Primary School board, Lela Christina Church of Africa Trustees, Jared Obiya, Owuond Owuond, Ann Olang, Phillip Ogalo, Lucia Alai, Charles Otiende and Members of Central Kisumu Community Based Organisation.

In the case, the residents' lawyer Kenneth Amondi argued that more than 10,000 households are at risk of being rendered destitute owing to KRC’s actions.

The court heard that Kenya Railways was fencing off property and public roads.  

"The public roads have been in use since time immemorial. That the actions of the respondent (KRC) are contrary to the provisions of Sections 2 and 14 of the Public Road and Road Access Act, sections 24 and Rules 31, 34 and 91(2) of the Survey Regulations 1994 in the Survey Act Cap 299. That the Respondent has purported to fence off and therefore compulsorily acquire portions of the Plaintiff’s parcels contrary to Section 3, 4, 6, 8 and 9 of the repealed Land Acquisition Act," argued Amondi.

He said there was evidence that his clients had legitimately purchased the property that Kenya Railways had started fencing.

Amondi also told the court that those affected would lose their land or denied access to their homes.

On the other hand, KRC also claimed ownership of the land it had fenced. It argued that it had an interest in property which was previously known as LR No 1184/7.

The court heard that the land was reserved as ‘Railway Station Lela” on January 8, 1929.

According to Railways, its intention was to implement the East African Railway master plan by securing its lawfully acquired and registered parcels of land by fencing off its land countrywide.

It argued that all those who were in court were not affected by the process.