Four Nairobi businessmen have failed to stop the ongoing development of an inland container depot for the Standard Gauge Railway (SGR) in Syokimau Embakasi.
John Mugo Njeru, Byron Kanyu, John Muswanyi and Victor Muiru wanted the court to issue an injuction on grounds that they are the registered owners of the 15-acre land where the dry port is being developed to be used by the new SGR at Syokimau.
They said the land was part of a 37-acre land which was allocated to them in July 1998. They processed title for the land and registered it in their names on February 4, 2005.
The court heard that around April 2020, a company known as Syokimau ICD Limited trespassed on the suit property and claimed ownership of part of the same allegedly on the basis it from the Kenya Railways Corporation (KRC). The company was initially known as Mict Nairobi Limited.
In their application, the businessmen contended that the company has started erecting structures on the land and that unless an injunction is issued in their favour, they will suffer loss which may not be compensatable in damages.
But Justice Erick Obaga dismissed their application upon finding that the developing company was already in possession based on a lease from the Kenya Railways Corporation.
He said evidence tabled in court revealed that the land had been surveyed in 1969 and in 1971, and was the subject of compulsory acquisition by government.
"The question which will have to be interrogated later on is whether the land which had been subject of compulsory acquisition in 1971 could again be available for fresh allocation in 1998. This is more so because the Applicants did not place before the court any materials to show that there was a surrender of the acquired property as to be available for fresh allocation," said the judge.
Justice Obaga added that the company had placed materials before the court to show that the space leased to it was as a result of parcels which were compulsorily acquired from Laxmanbhai Construction Limited and Sato Nyumbaz.
The judge ruled that the applicants did not demonstrate that they have a case with probability of success considering that it is not clear clear how a property compulsorily acquired by government would later on become available for fresh allocation almost three decades later.
He added that the portion of their property which is in contention is capable of valuation and they can be compensated if they succeed.
"Alternatively, the constructed portion can be demolished and restored to its original status. The Respondent has built a large area with cabros which can be used as a dry land port. Even on a balance of convenience, the balance tilts in favour of the Respondent which is already in possession based on a lease from Kenya Railways Corporation," said Justice Obaga.
On its part, Syokimau ICD Limited argued that it has a lease of 15 years with effect from November 29, 2018 in respect of 15 acres of the land which is unsurveyed.
It contended that following the signing of the lease, it moved into the portion leased to it and is in the process of construction a multimillion inland container depot to be used by the new SGR at Syokimau