East African Railways Corporation V Karangi  EKLR
|Civil Appeal 113 of 1984||27 Oct 1988|
Richard Otieno Kwach, John Mwangi Gachuhi, Fred Kwasi Apaloo
Court of Appeal at Nairobi
East African Railways Corporation v Karangi
East African Railways Corporation v Karangi  eKLR
East African Railways Corporation v Karangi
Court of Appeal, at Nairobi
October 27, 1988
Gachuhi, Apaloo JJA & Kwach Ag JA
Civil Appeal No 113 of 1984
(Appeal from a judgment of the High Court at Nairobi, Platt J)
Employment law – termination of employment – right of employer to reenter premises occupied by a retired employee - employee compulsorily retired under the East African Railways Corporation Act (cap 18) – employee failing to vacate premises after notice – employee physically evicted by employer – whether eviction lawful – whether employee entitled to damages.
Trespass – trespass to property – premises owner’s right of re-entry - person failing to leave premises after notice to quit by owner – whether such person a trespasser - remedies available to owner – statute enabling owner to apply to court for eviction – whether owner entitled to exercise alternative remedy of right of re-entry - East African Railways Corporation Act (cap 18) section 83.
The respondent had been under the employment of the appellant corporation since 1952. In 1975, the corporation, by a three months’ notice expiring on 1st of July of that year, notified the respondent that he was to be compulsorily retired. This was purportedly done under the authority of the Railway Corporation Regulations of 1974 and it was stated that the respondent had reached the age at which he could be retired. When the period stated in the notice expired, the corporation issued a letter informing the respondent that he was to be on leave and that he was to vacate his quarters by the 10th of July.
The respondent contested his retirement to both the corporation’s appeal board and the Industrial Court but he was unsuccessful. In the meantime, the corporation’s servants physically evicted the respondent’s family from the corporation’s house on 28th July, 1975 and locked it. The respondent however regained possession of the premises on the same day upon the mediation of the Union.
The respondent remained on the house after he had been paid his entitlement and the corporation gave him further notices to quit. As the respondent failed to vacate, the corporation again evicted him on 10th January, 1976.
The respondent filed an action for damages against the corporation for unlawful eviction, in that the corporation had not given him a proper notice to quit, and for damage to his property. The judge found that the respondent had been given proper notice to quit but awarded him damages in respect of the first eviction.
1. Where a retired employee’s railway quarters was not delivered to the corporation or vacated, the East African Railways Corporation Act (cap 18) section 83(2) empowered the corporation to terminate the right of occupancy by written notice. Subsection one imposed a correlative duty of the employee on leaving the service to relinquish possession of the premises or vacate it “as soon as practicable”.
2. There was a reasonable practice sanctioned by usage but not by law that upon retirement, an employee was permitted to retain use and occupation of railway quarters until his retiring awards were paid to him. This period normally varied from two to three months.
3. The respondent had declined to fill the necessary papers to enable the corporation to process his terminal benefits and thus delayed to give over the possession of the house to the corporation. The respondent had fallen into the category of retired employees who could be ordered out of the quarters immediately.
4. The respondent having been retired by the corporation and being in occupation of its premises after the expiry of the notice to vacate, he was a trespasser and the corporation was entitled to apply to a Magistrate under section 83 of the Act (cap 18) for an order empowering a police officer to evict the respondent on its behalf.
5. The Act left the corporation with the option of other legal methods of regaining possession. One of these was the common law right of reentry available to an owner against a trespasser who refuses to quit.
This was the right which the corporation had exercised in the two evictions.
6. A trespasser is not allowed to recover damages against a true owner who is entitled to possession and who uses a reasonable amount of force to evict the trespasser. There was no evidence that the corporation’s servants had used more force than was reasonably necessary in evicting the respondent and the corporation was not liable to the respondent in damages.
1. Newton v Harland (1840)1 Sc NR 174
2. Hemmings v Stoke Pages Golf Club  1 KB 720
3. Aglionby v Cohen  1 QB 558; 1 All ER 785
East African Railways Corporation Act (cap 18 Laws of East African Community) section 83, 83(1), 83(3)