Nyamamba & 4 others v Kenya Railways Corporation (Civil Appeal 235 of 2009) [2015] KECA 181 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Mandatory nature of statutory notice under Section 87 of Cap 397
Section 87 is couched in clear and mandatory terms; non-compliance renders the suit incompetent and justifies striking it out at a preliminary stage.
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.
Retrospectivity of Article 48 of the Constitution of Kenya, 2010
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.
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.
Access to justice as against statutory notice requirements
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.
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.
Legal principles established
#- 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
#- 1.The appeal is dismissed
- 2.Costs of the appeal are awarded to the respondent
- 3.The ruling of the High Court striking out the suit and the Chamber Summons application is upheld
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Chudasama v Chudasama & 2 others (Environment and Land Case 1394 of 2016 & 249 of 2019 (Consolidated)) [2026] KEELC 2836 (KLR)[2026] KEELC 2836 (KLR)14 May 2026
- Milly Glass Works Limited v Kenya Railways Corporation & another[2025] KESC 26 (KLR)16 May 2025
- Khanani & 3 others v County Government of Busia & another (Environment and Land Appeal E015 of 2022) [2024] KEELC 7486 (KLR)[2024] KEELC 7486 (KLR)12 Nov 2024followed
Cite this brief
#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.