Kenya Railways ordered to refund Sh127 million excess rent collected 

Kenya Railways Corporation, through its managing director, has been ordered to refund Sh127.4 million paid in excess as rent by a company that has leased its parcel of land in Mombasa.

The Environment and Land Court also directed it to pay the money within 3 days together with interest at court rates from the time it was paid and ensure that Milly Glass Works Ltd is also paid taxed costs.

Justice Sila Munyao further ruled that in default of the payment order, Kenya Commercial Bank (KCB) ought to release and transfer into an account, that Milly Glass Works Ltd’s lawyer will provide, all the money contained in Kenya Railway’s revenue account not exceeding the amount claimed.

He said that the amount paid in excess is known to Kenya Railways and if it felt that what Milly Glass Works Ltd had stated as being overpayment is exaggerated, nothing stopped it from filing an application for accounts to be checked.

“None has been filed and neither has the corporation offered to say what the correct amount is. I have no reason to doubt that the money claimed by the plaintiff in the (garnishee) application is not the money due and owing,” said Justice Munyao.

Justice Munyao said he was not persuaded that the avenue a successful litigant in a case against a corporation or the national and county governments is to file a suit of mandamus (case to compel payments).

“I have demonstrated that in so far as the corporation is concerned, the managing director is supposed to pay the judgement sum without delay out of the revenue account of the corporation,” said Justice Munyao.

The judge also noted that the application by Milly Glass Works Ltd seeking to attach the revenue account of the corporation was within the jurisdiction of the court.

Justice Munyao said that the law directs the corporation’s managing director to pay the money from the revenue account as he will be undertaking a public and statutory duty.

“If he does not pay within a reasonable time, the aggrieved party has the right to come to court to see to it that the public duty the managing director is supposed to do is done,” said Justice Munyao.

He added that nothing prevents any party from moving to court to be allowed to seize money in any of the corporation’s revenue accounts in order for what the managing director was supposed to do is done.

“The right to be paid which has been ordered by the court is not a vain right, it must be given effect. If we say that it cannot be given effect by strictures in statute, then we are saying that there are categories of people who are above the law and can operate with impunity. That cannot be allowed,” said Justice Munyao.

Through lawyer Gikandi Ngibuini, Milly Glass Works Ltd filed an application seeking to attach money in the account held by Kenya Railways at the bank after it (Kenya Railways) was served with the demand for payment but failed to pay.

The application was opposed by Kenya Railways arguing that there can be no attachment or execution against it basing its argument on Section 88 of the Kenya Railways Corporation Act.