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French firm Bolloré, Kenya Railways in Changamwe land dispute

Workers load bags of fertiliser at a Bolloré warehouse in Changamwe
Workers load bags of fertiliser at a Bolloré warehouse in Changamwe, Mombasa in February 2019. FILE PHOTO | NMG 

A French logistics firm has sued Kenya Railways Corporation over a threat to demolish a wall around its parcel of land in Changamwe, Mombasa.

Bolloré Transport & Logistics Kenya claims that despite clear boundaries as depicted by a map and its ownership in respect to the parcel of land, Kenya Railways is still keen on pulling down the perimeter wall.

Through lawyer Grace Okumu, the company says that unless Kenya Railways is restrained by court from pulling down the perimeter wall, it will suffer irreparable loss and damages.

Bolloré is seeking a declaration that it is the registered, legal or beneficial owner of the parcel of land.

It is also seeking an injunction to restrain Kenya Railways, its servants or agents from pulling down the fence or in any way interfering with the its (company’s) possession of the land.

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“A joint survey has been carried out by both the applicant and the respondent and a surveyors’ report confirms that the perimeter wall in dispute is not on the Kenya Railways property,” part of the suit documents state.

In his supporting affidavit, the company’s legal officer Maurice Lugadiru said in a letter dated November 1 last year, Kenya Railways maintained that they had encroached on its land but it proposed a joint verification be conducted by surveyors from both parties.

“A joint survey was carried out and a report dated March 25 2019 confirmed that the applicant (transport company) had not encroached on the respondent’s land,” states Mr Lugadiru in his affidavit.

Mr Lugadiru adds that only a court injunction can restrain Kenya Railways from their intended actions as the surveys reports clearly indicated that there is no encroachment on the respondents (Kenya Railways) land.

In its preliminary objection to the suit, Kenya Railways says it is unlawful for the transport company to ignore the procedure, mechanism and the forum appointed by Parliament for resolving boundary disputes.

“The court lacks jurisdiction to affix the boundary between the plaintiff and the defendant because Section 19 of the Land Registration Act, 2012, the duty to fix boundaries to registered land is vested in the Land Registrar,” part of the objection stated.

According to Kenya Railways, in as far as the claim is founded on alleged encroachment on the parcel of land, the court lacks jurisdiction to hear and determine the claim because Section 18 (2) of the Land Registration Act restricts jurisdiction of the court by committing boundary disputes to the land registrar for determination in the first instance.

The case has been fixed for mention on January 27, 2020.

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