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Court of AppealDismissedCivil Appeal No. 235 of 2009· [2015] KECA 181 (KLR)

Nyamamba & 4 others v Kenya Railways Corporation (Civil Appeal 235 of 2009) [2015] KECA 181 (KLR)

Court of Appeal
4 December 2015
3,560 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The Court of Appeal confirmed that suits against Kenya Railways fail unless you first give one month's written notice, and Kenya's 2010 Constitution cannot rescue older cases.

What this practically means

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Executive summary

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The appellants, holders of letters of allotment issued by the Commissioner of Lands in 1999 over five parcels of land in Nairobi, sued Kenya Railways Corporation alleging that in November 2008 the Corporation marked their properties and, three days later, demolished all structures thereon. They sought injunctions, declarations of ownership and damages. Before the High Court, the Corporation raised a preliminary objection founded on Section 87 of the Kenya Railways Corporation Act (Cap 397), which bars proceedings against the Corporation until at least one month after written notice of the claim has been served on the Managing Director. Nambuye J upheld the objection, struck out the suit and the accompanying application, but granted the appellants liberty to give notice and file afresh. The appellants appealed on five grounds, contending before the Court of Appeal that Section 87 was an unconstitutional impediment to access to justice under Article 48 of the Constitution of Kenya, 2010. The Court dismissed the appeal. It held, as a first appellate court reviewing the preliminary ruling, that Section 87 is mandatory; counsel had admitted non-compliance. The Court distinguished Majanja J's decision in Kenya Bus Services, which had found notice requirements under Section 13A of the Government Proceedings Act inconsistent with Article 48, because those facts arose after the 2010 Constitution came into force. Applying the Supreme Court's retrospective jurisprudence in Samuel Kamau Macharia and Mary Wambui Munene, the Court held that Article 48 has no retrospective application and the retired Constitution contained no comparable right. The Court further observed that parties facing imminent danger may seek leave to be heard before the notice period expires, but the appellants neither gave notice nor sought leave. The Court affirmed the ruling below and dismissed the appeal with costs to the respondent.

Key legal issues

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01

Mandatory nature of statutory notice under Section 87 of Cap 397

Holding

Section 87 is couched in clear and mandatory terms; non-compliance renders the suit incompetent and justifies striking it out at a preliminary stage.

Reasoning

The court, as a first appellate court, reviewed the preliminary ruling. The section requires at least one month's written notice of the claim and intention to sue served on the Managing Director before proceedings against the Corporation. Counsel for the appellants admitted non-compliance. The court held that sidestepping an express statutory provision cannot be cured by invoking access to justice, and that parties and their advocates are expected to know the law and its consequences.

p. 6
02

Retrospectivity of Article 48 of the Constitution of Kenya, 2010

Holding

Article 48 has no retrospective application; a cause of action and proceedings predating 27th August 2010 cannot be measured against the access-to-justice guarantees of the current Constitution.

Reasoning

Relying on the Supreme Court's guidance in Samuel Kamau Macharia, the court held that courts must pay due regard to the language of the Constitution and ought not import retrospectivity where none appears, especially where it would divest rights that accrued before commencement. Articles 263 and 264, read with the Sixth Schedule, confirm that the 2010 Constitution does not invalidate what was lawful under the retired Constitution. The retired Constitution did not confer comparable access-to-justice rights.

p. 5
03

Access to justice as against statutory notice requirements

Holding

A statutory notice requirement, strictly complied with or with leave available, does not impair access to justice; the court retains supervisory powers to shorten the notice period in cases of imminent danger.

Reasoning

Although endorsing in principle Majanja J's reasoning in Kenya Bus Services that mandatory notice provisions under Section 13A of the Government Proceedings Act may impede access to justice under Article 48, the court distinguished that case because it concerned post-2010 facts. The court observed that where there is imminent danger to property, a party may apply for leave to be heard before the notice period expires, and the court may exercise residual and supervisory powers. Here no notice was issued and no leave was sought.

p. 6

Legal principles established

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  • The one-month written notice requirement under Section 87 of the Kenya Railways Corporation Act is mandatory, and a suit commenced against the Corporation without such notice is incompetent and liable to be struck out.
  • The Constitution of Kenya, 2010 does not apply retrospectively; it does not invalidate, except by express provision, what was otherwise lawful under the retired Constitution before 27th August 2010.
  • Where there is danger of destruction or demolition of property, a party may seek leave of court to be heard before expiry of a statutory notice period; a party who neither gives notice nor seeks leave cannot rely on access to justice to cure the non-compliance.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal are awarded to the respondent
  3. 3.The ruling of the High Court striking out the suit and the Chamber Summons application is upheld

Authorities

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Legislation

  • Kenya Railways Corporation ActSection 87
  • Constitution of Kenya, 2010Article 48
  • Constitution of Kenya, 2010Articles 263 and 264
  • Constitution of Kenya, 2010Sixth Schedule
  • Government Proceedings Act (Cap 40)Section 13A

Cases cited (6)

  • Ngobit Estate Limited v Carnegie
    [1982] KLR 437
  • Dry Associates v Capital Markets Authority & Anor
    Petition No. 328 of 2011 (unreported)
  • Kenya Bus Services Limited and Anor v Minister of Transport & 2 Others
    [2012] eKLR
  • Samuel Kamau Macharia & Anor v Kenya Commercial Bank Limited & 2 Others
    Application No. 2 of 2011 (unreported)
  • Mary Wambui Munene v Peter Gichuki Kingara & 2 Others
    [2014] eKLR
  • Sias Moise v Transitional Local Council of Greater Germison
    Case CCT 54 of 200
On appeal from
High Court of Kenya at Nairobi
E.L.C. No. 582 of 2008
Jurisdiction invoked
First appeal to the Court of Appeal under the appellate jurisdiction of the Court over the High Court (Constitution of Kenya, 2010, Article 164)

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, "Nyamamba & 4 others v Kenya Railways Corporation (Civil Appeal 235 of 2009) [2015] KECA 181 (KLR)", Case Analysis (2015). Civil Appeal No. 235 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/181/eng@2015-12-04

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