Kenya Railways to pay woman Sh45 million for demolishing her property

Kenya Railways Corporation (KRC) has been ordered to pay a woman over Sh45 million as compensation for demolishing her property in Nakuru County.

Environment and Lands Court judge Lynette Omollo, in a judgment delivered last week, said Kenya Railways trespassed Monica Wamuhu’s property.

As the administrator of the estate of the late Peter Macharia Marianjugu, Wamuhu the suit seeking compensation on November 23, 2020, following the demolition of her property.

She told the court that land parcel No. Nakuru Municipality Block 6/141 is registered in the name of her deceased husband, Macharia, who was issued a certificate of lease for a period of 99 years from the year 1992.

The woman revealed that KRC, in 1993, started to lay claim over the property and her late husband filed a case Nakuru HCC No. 470 of 1993, challenging KRC's decision. The case, according to her, was heard and the court declared that the property was the property of her husband.

Wamuhu told the court that she had been in occupation of the property until March 2020 when the KRC sent a group of people to find out if they had encroached onto its land.

She said they previously lived in Eldama Ravine, Baringo County for 40 years when the former president expressed his intention to expand Baringo High School when they gave up their land for the project. In return, the land in Nakuru was given to them as compensation, she said.

KRC agents, she said, invaded the suit property and demolished the building on it without a court order. The demolition, she said, happened on a Sunday and she could not seek redress in court that day.

The corporation, in its defence, filed a suit on January 25, 2021, and denied claims by Wamuhu. KRC said it is entitled, by law under the Kenya Railways Corporation Act Cap 397, to construct and maintain 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).

The corporation argued that there is a mandatory legal requirement for the maintenance of what is known as the ‘Visibility Diamond’ that stretches 300 feet in each of the four directions along the diagonals of the crossing.

It added that the law prohibits any construction or erection of any structures and even growth of any plants beyond nine inches within the ‘Visibility Diamond’. The distance standard visibility, according to KRC, enables 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 300 feet from the crossing.

KRC said the suit premises were within the ‘Visibility Diamond’ on a railroad level crossing and that if indeed Wamuhu’s late husband acquired title to the said property and constructed a storied building without the approval of KRC Managing Director, then the said act was illegal and created a danger to the general public.

**A bulldozer demolishes a house as Kenya Railways Corporation evicted families in Nakuru's Section 58 Estate.** [Kennedy Gachuhi, Standard]

KRC said any structures built on the ‘Visibility Diamond’ without the necessary approval, ought to be removed as they are a danger to the level crossing and would not be entitled to any compensation.

The court noted that KRC, despite alleging that the suit property is within the “Visibility Diamond”, did not produce any evidence to demonstrate the same.

“The defendant (KRC) has committed a grave injustice to the Plaintiff and there is no doubt in my mind that the plaintiff has made a case for compensation for the demolition of the suit property,” ruled the court.

The judge noted that the conduct of KRC, which is a government department, was completely unwarranted.

“It was not only oppressive and arbitrary but violated the plaintiff’s right to property as enshrined under Article 40 of the Constitution of Kenya, 2010. The demolition carried out by the defendants is akin to unconstitutional action by the servants of the government,” read the judgment in part.

In the case, Wamuhu sought general and exemplary damages for trespass on her property, Nakuru Municipality Block 6/141. She also demanded special damages amounting to Sh132,500,000, being the value of the buildings demolished and the machinery destroyed on the property.

Wamuhu also demanded lost rent accruing from the parcel of land known as Nakuru Municipality Block 6/141 from the date of demolition to the date of termination of the leases over the property.

Eventually, the court awarded the woman Sh3 million as general damages for trespass on her property, Sh5 million as exemplary damages for trespass and Sh37.5 million as special damages which are the buildings' value, including site works demolished.