Kenya Railways stopped from evicting private firm
The Court of Appeal has suspended the hearing of a dispute over an 18-acre parcel of land, which is being claimed by a former provincial commissioner, pending the determination of an appeal filed by two businessmen.
Kenya Railways Corporation (KRC) has been barred from evicting a private firm from a warehouse that the government plans to use for fertiliser distribution to farmers nationwide.
Environment and Land Court Judge Stephen Kibunja ruled that it would not make economic sense to continue inconveniencing Jihan Freighters Limited, even if any damages suffered or likely to be suffered could be compensated should the court rule in favour of the private firm.
The court also noted that the facility remains idle, as no activity is taking place on the property due to the ongoing dispute between the private firm and the KRC.
“The balance of convenience tilts in favour of issuing the order, and in so doing, help in reducing the damages that KRC, and by extension the public, is likely to be condemned to pay should the private firm succeed, in the petition,” said the judge.
Court records indicate that KRC forcibly evicted the company from its premises last year, crippling its operations and adversely affecting its finances and employees.
The court granted the petitioner a temporary injunction in November last year, which was extended in May this year; however, the court was informed that KRC has yet to allow the company back onto the premises.
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The judge observed that the injury the petitioner is likely to continue suffering, if the requested order is not granted, constitutes irreparable harm and would significantly and negatively impact its employees.
“I find the petitioner has prima facie established a case against the respondent. Pending hearing and determination of the petition, an order of injunction be issued restraining KRC or its agents from, in any way, interfering or preventing the petitioner’s access, occupation and operations from the suit property,” said justice Kibunja.
The property, Kenya Railways Goodsshed measures 35,167 square feet situated along Machakos Road, Mombasa Railway Station which is referred to as BC – Mombasa Goodsshead [Part] – Mombasa Railway Station.
Jihan Freighters Limited was a tenant of the government corporation, but it was evicted from the property to allow the government to utilise the facility for the movement and storage logistics of fertiliser from the port of Mombasa by rail for distribution to farmers.
However, the private firm moved to court to contest the manner of its eviction from the property and to prevent the corporation from evicting it or denying it access. KRC contends that the petitioner vacated the premises voluntarily.
Through its director, Abdalla Salim, the private firm argued that the agreement stipulated it would remain KRC's tenant for nine years from June 1, 2022, at a rental amount of Sh4.8 million per annum, plus 16 percent VAT, which amounts to Sh192,000 per month.
“There was a clause that the petitioner pays a security deposit of Sh1.2 million. There was a further clause that the lease was subject to renewal for a negotiated period upon expiry,” he said, adding that the firm improved the property.
The firm stated that its tenancy was terminated via a letter dated January 24, 2023, citing the government's intention to use the facility for storing fertiliser imported into the country before distribution to farmers.
“Another termination notice was sent in July 2023 citing reasons that the petitioner had changed the usage of the suit property, and had sub-leased it and demanded that the petitioner vacates by August 13,” said Mr Salim.
The petitioner stated that when it failed to comply, KRC entered the property, evicted it, and then locked the gates.
“The closure of the suit property has resulted in paralysis of the petitioner’s operations and loss of employment,” said Mr Salim.
KRC, however, opposed this application through its Security Services Manager, Mark Murkomen, noting that the letter of offer to the petitioner included a clause stating that the suit property was limited to Commercial-Cargo/Goods storage only.
“But the petitioner used the suit property to sell Tuk-tuks among other vehicles, thereby substantially breaching the tenancy agreement,” said Mr Murkomen.
He also said that the petitioner also breached the agreement by sub-letting the premises to third parties, and carrying out construction works without the corporation’s consent.
Mr Murkomen clarified that KRC terminated the tenancy agreement due to a change in the use of the suit property, subletting it without consent, and failing to provide at least 15,000 metric tonnes of cargo per month for rail haulage.
He said that KRC did not evict the petitioner, but voluntarily began vacating the suit property sometime in October last year.
