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Court of AppealPartially AllowedEast African Court of Appeal at Nairobi (Civil Appeal from High Court, Platt J)· [1988] KECA 113 (KLR)

East African Railways Corporation v Karangi [1988] KECA 113 (KLR)

Court of Appeal of Kenya
27 October 1988
FAF.K. ApalooJGJ.M. GachuhiRKR.O. Kwach
4,763 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed landlords can peaceably evict trespassers who ignore valid notices to quit, without paying damages for trespass.

What this practically means

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Executive summary

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The East African Railways Corporation appealed against a High Court judgment of Platt J (19th January 1984) awarding the respondent, a compulsorily retired employee, general damages of Kshs 10,000 and special damages of Kshs 333.15 for unlawful eviction from Corporation quarters on 28th July 1975. The respondent had been retired on three months' notice on the ground that he had reached the retiring age of 50, refused to vacate after the notice expired, declined to complete pension forms, and was evicted on two occasions. The trial judge rejected the respondent's pleaded ground - absence of notice to quit under the Railways Legislation - finding notice had been given, but nonetheless sustained the claim on the first eviction. Apaloo JA, delivering the leading judgment with which Gachuhi JA and Kwach Ag JA agreed, held that once the valid notice expired the respondent was a trespasser; that section 83(2) of the East African Railways Corporation Act preserved the common law right of re-entry; and that, following Hemmings v Stoke Poges Golf Club and Aglionby v Cohn, a peaceable eviction using no more than reasonable force gives rise to no liability in trespass. The court also held counsel's retracted concession created no estoppel, and that the Corporation was not obliged to postpone eviction pending the board appeal or pension computation. The appeal was allowed with costs, the High Court judgment set aside, judgment entered for the Corporation, and any sums paid ordered refunded.

Key legal issues

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01

Whether failure to give notice to quit under the East African Railways legislation rendered the eviction unlawful

Holding

The High Court found that notice to quit was duly given, which destroyed the pleaded basis of the respondent's claim; the eviction of 28th July 1975 could not be unlawful on that ground.

Reasoning

The respondent's pleaded basis for illegality was the absence of notice to quit in accordance with the Railways Legislation. The trial judge found, on the Regional Manager's letters of 2nd April 1975 and 2nd July 1975, that over three months' notice was given. Once that finding stood, the foundation of the claim for damages for wrongful eviction fell away.

p. 3
02

Whether a peaceable right of re-entry against a trespasser attracts liability in damages

Holding

Under Hemmings v Stoke Poges Golf Club, the owner's right of entry is a complete defence to a claim of trespass where no more than reasonable force is used; Newton v Harland no longer represents the modern law.

Reasoning

The respondent, having refused to quit after valid notice, was a trespasser. Section 83(2) of the Act provided one remedy but was expressly without prejudice to other means of recovery, including the common law right of re-entry. The Corporation's servants used no force or unreasonable force, so no claim for damages for trespass could lie. The English Court of Appeal authority was consistently followed.

p. 4
03

Whether the Corporation was obliged to postpone eviction pending the respondent's appeal to its board and computation of terminal benefits

Holding

No law obliged the Corporation to suspend its decision; the timing of eviction was a matter for its commercial judgment, not for the courts.

Reasoning

The trial judge apparently thought the Corporation should have waited until the board appeal and terminal benefits were resolved. The court held that the respondent's own refusal to complete pension forms placed him in the category of retired employees who could be ordered out immediately, and that whether to suspend or proceed was a commercial judgment for management, outside the province of the courts.

p. 5

Legal principles established

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  • An owner of premises in occupation of a trespasser who has ignored a valid notice to quit may exercise the right of re-entry and, using no more than reasonable force, peaceably evict the trespasser without liability in damages for trespass.
  • Counsel is entitled to retract a concession made in litigation; a concession on a view of the law does not operate as an estoppel against the court.

Court orders

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  1. 1.Appeal allowed with costs
  2. 2.Judgment and decree of the High Court set aside and substituted with judgment for the defendant (appellant Corporation) with costs
  3. 3.Any amount paid to the respondent in pursuance of the High Court judgment to be refunded to the appellant
  4. 4.Costs of the appeal to the appellant
On appeal from
High Court of Kenya at Nairobi
Jurisdiction invoked
First appellate jurisdiction over a High Court civil appeal

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "East African Railways Corporation v Karangi [1988] KECA 113 (KLR)", Case Analysis (1988). East African Court of Appeal at Nairobi (Civil Appeal from High Court, Platt J). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/113/eng@1988-10-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.