Hubble v Commissioner for Transport (Civil Appeal No. 49 of 1951) [1952] EACA 97 (1 January 1952)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and SIR HECTOR HEARNE, C. J. (Kenya)

## HORACE HUBBLE, Appellant (Original Plaintiff)

v.

## THE COMMISSIONER FOR TRANSPORT, Respondent (Substituted Defendant) Civil Appeal No. 49 of 1951

(Appeal from the decision of H. M. Supreme Court of Kenya, Windham, J.)

Compensation—Railway realignment—Whether under Crown Lands Ordinance or Railway Ordinance.

The appellant, as occupant of Lengenny Farm, claimed that the compensation offered for damages and disturbance was wrongly calculated under the Crown Lands Ordinance, 1902. In June, 1947, the Acting Governor, purporting to act in exercise of the powers conferred by section 28, Crown Lands Ordinance, 1902, authorized the High Commissioner for Transport to exercise the Governor's powers under the Ordinance in respect of Lengenny Farm inter alia. The appellant's farm was thereupon entered upon and occupied as to 8.37 acres. Compensation was offered for damage and disturbance under the Crown Lands Ordinance. The appellant contended that compensation in respect of the acquisition of the use of the 8.37 acres was payable in accordance with section 8 of the Railway Ordinance and in respect of any damage caused thereby. Such compensation included the value of the land.

The appellant sued and contended that the Governor's authority was ultra vires and the High Commissioner of Transport had committed trespass; alternatively if he had entered lawfully compensation should be assessed under section 8 of the Railway Ordinance.

Held (13-6-52).—(1) That the High Commissioner for Transport was not a "contractor" within the meaning of section 28 of the Crown Lands Ordinance, 1902, and that the Governor<br>had inherent power to depute his powers.

(2) That entry and acquisition of the use of the land was made under section 24, Crown Lands Ordinance, 1902, and compensation is payable under that Ordinance and not in accordance with section 8 of the K. U. R. and H. Ordinance, 1927.

(3) The East Africa High Commission was liable to be sued in respect of any tort for which the High Commissioner of Transport could have been sued.

Appeal dismissed with costs.

Cases cited: Attorney General v. de Keysers Hotel (1920) A. C. 508; Carltona, Ltd. v. Commissioner of Works (1943) 2 All E. R. 560; Corsellis v. London County Council (1908) 1 Ch. 13.

Salter with Wilcock for the appellant.

Newbold, O. C., with Bechgaard for the respondent.

JUDGMENT (delivered by SIR NEWNHAM WORLEY (Vice-President)).—This is an appeal from a judgment of the Supreme Court of Kenya which dismissed with costs an action brought by the appellant claiming certain declarations and damages in respect of the entry upon 8.37 acres of land, part of Lengenny Farm situated at Kikuyu, for the purpose of the realignment of the railway between Nairobi and Uplands, all these places being in the Colony of Kenya. The main issue in the appeal is as to the basis upon which compensation should be assessed. We were informed that this is a test case, a number of other neighbouring farms having been similarly affected by the realignment.

The action was originally brought against the East Africa High Commission as defendant, but when the case came on for hearing in the Supreme Court and order was made that the Commissioner for Transport should be substituted as defendant and the pleadings be formally amended accordingly. In spite of this, the appeal was filed in the Court naming the East Africa High Commission as respondent (original defendant) and another application was made to us to substitute the Commissioner for Transport as respondent. I draw attention to this as it is not the first time that this mistake has occurred in appeals to this Court. When an order is made for amendment of the rubric or pleadings and the presiding Judge does not himself make the amendment on the record it is the duty of the Registrar or other officer taking the minutes of the proceedings to see that the necessary amendment is made. If there is an appeal, then the advocates who settle the record with the Registrar are equally responsible for seeing that effect has been given to the order.

Before I set out the material facts and the contentions of the parties in this appeal. I shall attempt to summarize the history of the administration of the Railway in Kenya as this will. I hope, not only elucidate the confusing changes of nomenclature but also throw some light on the relations between the various authorities concerned. Such parts of this summary as do not appear on the record are based on statements made at the Bar by the advocates for the respondent or are taken from the official history of the Railway called "Permanent Way" published by the East African Railways and Harbours, Nairobi.

The first legislation authorizing the construction of a railway from Mombasa to Lake Victoria was the Uganda Railway Act, 1896, of the Imperial Parliament. The responsible authority was a body called the Uganda Railway Committee, which sat in the Foreign Office, and the money for building the Railway was provided by votes of the Imperial Parliament, By Proclamation No. 6 of 1897. Her Maiesty's Commissioner and Consul-General for the East African Protectorate appropriated "for public purposes" all lands on the mainland beyond Mombasa situated within one mile on either side of the line of the Railway wherever finally constructed.

In 1903 the Imperial Government made over the Railway to the Government of the East African Protectorate and it became a branch of the Protectorate Administration, and, later, of the Government of Kenya: the capital cost remained for many years as a contingent liability, firstly, on the budget of the Protectorate and later on that of the Colony, until the Imperial Government relinquished its claim in 1938.

By section 7 of the East Africa Order in Council, 1902, all rights of His Majesty in any Crown Lands were vested in trust for His Majesty in the Commissioner for the East African Protectorate. Later, so far as such lands lay within the boundaries of the new Colony of Kenya, they were vested on the same trusts in the Governor of the Colony (section 2 of the Kenya Order in Council, 1921). These rights included the lands in the Railway zone appropriated under the Proclamation of 1897, so that, by this process of devolution, the land over which the Railway runs now belongs to the Crown in right of its Government of the Colony of Kenya.

For some years prior to 1926 the higher control of the Railway appears to have been exercised by a body called the Inter-Colonial Railway Council composed of representatives of the Governments of Kenya and Uganda. But, by the Kenya and Uganda (Transport) Order in Council, 1925, the Railway-renamed the Kenya and Uganda Railway—was placed under the control and management of a High Commissioner for Transport, who was made a corporation sole. The High Commissioner for Transport was the Governor of Kenya. Section 5 of the Order in Council provided for the appointment of a General Manager and other servants and further provided that all persons so appointed should be servants of the High Commissioner but "shall be and remain in the service of the Crown and shall be deemed to be in the public service of Kenya and Uganda". By the Kenya and Uganda (Transport) Amendment Order in Council, 1935, the Governors of Kenya and Uganda were declared to be the High Commissioner for Transport, acting as a corporation sole.

This was the legal position of the Railway Administration in June, 1947, when the acts complained of were begun. But by the Africa (High Commission) Order in Council, 1947, the East Africa High Commission (consisting of the Governors of Kenya, Tanganyika and Uganda) was created as a body corporate and by sections 9 (1) (b) and 44 (1) (c) empowered, with the approval of the territorial legislatures and the consent of the Secretary of State, to take over the administration of the Kenya and Uganda Railway and Harbour Services and the Tanganyika Railway and Ports Services after these should have been amalgamated. This amalgamation was effected by an Order No. 13 published in the High Commission Gazette of 1st May, 1948, and the East Africa High Commission accordingly took over the administration of the amalgamated services from that date under the name of the East African Railways and Harbours Administration.

Next came the East African Railways and Harbours (Transitional Powers) Act, 1948 (Act No. 2 of 1948 of the East Africa Central Legislative Assembly), which substituted the East Africa High Commission for the High Commissioner for Transport in the Kenya and Uganda (Transport) Orders in Council, 1925 to 1938, and in the Kenya and Uganda Railway Ordinance, 1927 (No. 15 of 1927 of the Colony and Protectorate of Kenya). Section 11 of the Act transferred all the rights and liabilities of the High Commissioner for Transport to the East Africa High Commission. The East Africa High Commission was therefore the authority responsible for the administration of the Railway in Kenya and the proper defendant at the date of the institution of the appellant's action, namely, the 6th December, 1949.

But before the case was called for hearing on 27th March, 1951, another change had taken place by reason of the coming into force on 15th June, 1950, of the East African Railways and Harbours Administration Act, 1950 (Act No. 2 of 1950 of the East Africa Central Legislative Assembly). This Act repealed, inter alia, the Kenya and Uganda (Transport) Orders in Council, 1925 to 1938, and the East African Railways (Transitional Provisions) Act, 1948, and created the Commissioner for Transport of the East Africa High Commission as a corporation sole with the responsibility for the higher control of the East African Railways and Harbours Administration subject to the general direction of the East Africa High Commission. By paragraph 3 of the Fifth Schedule to the Act it was provided that all actions pending against the East Africa High Commission should be carried on against the Commissioner for Transport, who thereby became the substituted defendant in this suit. But since the acts complained of were done by the High Commissioner for Transport at the period when that corporation was responsible for the administration of the Railway, it will be more convenient to use that title throughout than to use the title of the corporation which is now the actual defendant-respondent.

It is convenient to note here that the Orders in Council were concerned only with setting up the organization for the administration of what are termed "the Services" which include the Railway. They do not define the capacities of the High Commissioner for Transport nor confer on him any powers. His powers and authority were conferred, so far as Kenya was concerned, by the Kenya and Uganda Railway Ordinance, 1927 (hereinafter referred to as the Railway

Ordinance) and it is significant that his power to construct a railway was subject to the sanction of the Legislative Council of the Colony (section 3 (f) as amended by section 3 of the Kenya and Uganda Railway (Amendment) Ordinance 1938: No. 45 of 1938) and that the execution of the works was subject to the control of the Governor in Council (section 4 (2) of the Railway Ordinance).

I pass on to set out the facts material to this appeal and the contentions of the parties. The farm known as Lengenny and registered as L. R. No. 183/3 is held on a lease for 99 years made on behalf of His Majesty by the Commissioner under the provisions of the Crown Lands Ordinance, 1902 (Laws of Kenya, 1948, Vol. II, page 2103). (The "Commissioner" here meant the person appointed to administer the Government of East Africa under the East Africa Order in Council, 1902.) It is common ground that, although this Ordinance was repealed by the Crown Lands Ordinance, 1915 (now Chapter 155 of the Laws of Kenya, 1948), its provisions are still operative for the purposes of this appeal by reason of the saving clause enacted in section 177 of Chapter 155. It is also common ground that for our present purposes the Crown Lands Ordinance is to be read as though "Governor" were substituted for "Commissioner" throughout: "Governor" now meaning the Governor of the Colony and Protectorate of Kenya. The original lease for Lengenny Farm was issued in 1904: the existing lease is for 199 acres and is not actually in the name of the appellant, but it is agreed that at the time of the acts complained of he was in occupation under an agreement of sale and has since then exercised his option to purchase the lease from the lessee for £2,000.

On 23rd January, 1947, the Legislative Council of Kenya, by resolution. approved a scheme for the deviation of the railway between Nairobi and Uplands the object being to improve the line by regrading and re-laying. The realignment has taken the railway through the appellant's farm.

The project was to be financed by a loan raised by the East Africa High Commission and guaranteed out of the general revenues and funds of the Colony of Kenya: see Loan (Railways and Harbours) Act, 1949 (Act No. 9 of 1949 of the East Africa Central Legislative Assembly), Schedule: Railways, item $(d)$ ; and the Guarantee (Railways and Harbours Loan) Ordinance (No. 1 of 1950 of Kenya): section 3. The work was to be carried out by the East African Railways and Harbours Administration.

The Crown Lands Ordinance, 1902, contains a group of sections numbered 23 to 28 headed "Compensation" of which sections 24 and 28 are relevant to this appeal. They read as follows: —

"24. Where any sale or lease of land under this Ordinance transfers more than 100 acres the (Governor) may at any time hereafter enter upon such land and construct railways, canals and roads for the benefit of the public across such land without making compensation for the land, but compensation shall be payable for all buildings destroyed or damaged."

"28. The (Governor) may by writing under his hand authorize contractors, their servants and agents, to exercise the powers conferred upon him by section 23-28 inclusive of this Ordinance."

In the Official Gazette of 10th June, 1947, the acting Governor published Notice No. 570 by which he purported, in exercise of powers conferred by section 28 of the Crown Lands Ordinance, 1902, to authorize-

"the High Commissioner for Transport, his servants, agents and contractors to exercise in connexion with the realignment of the railway from Nairobi to Uplands, all or any of the powers conferred upon the Governor by sections 24 to 28 inclusive of the said Ordinance in respect of the pieces or parcels of land set out in the Schedule hereto."

Lengenny Farm was included in the Schedule.

The High Commissioner for Transport through the General Manager and other servants of the Railways thereupon entered upon the appellant's farm and occupied a strip measuring in area 8.37 acres, and constructed earthworks and other works and fences thereon as required for the construction of the new line. The carrying out of these works naturally caused disturbance and loss to the appellant including the virtual severance of one portion of his farm. In September, 1947, the respondent offered to pay Sh. 11,450 as compensation, calculated at Sh. 10,446 for disturbance, Sh. 1,004 for damage, nothing being allowed for the land. The appellant was not satisfied with this and after a long, confused and sometimes acrimonious correspondence the main contentions of the parties emerged. In a letter dated 20th December, 1948 (ex. 1 (26)), the General Manager stated his position as follows: —

- (a) the land was resumed by the Government of Kenya acting under powers conferred by the Crown Lands Ordinance: - (b) the Railway Administration, acting on behalf of the Government of Kenya, have offered compensation upon the basis of that Ordinance: - (c) if the appellant was dissatisfied he should take up the matter with the $(c)$ Government of Kenya in whom the land is vested and on whose behalf the Railway Administration was acting.

I may note here that the General Manager also admitted liability to pay compensation for injurious affection of the appellant's remaining land under section 8 of the Railway Ordinance and that this has been assessed at £10 and received by the appellant, without prejudice to his claim in this action. The appellant's position (see letter of 28th May, 1949: ex. 1 (36)) was that compensation in respect of the acquisition of the use of the 8.37 acres was payable in accordance with section 8 of the Railway Ordinance and in respect of any damage caused thereby. The significance of this is that compensation on this footing would include the value of the land, which the appellant estimated at $£450$ a year, or £4,500 calculated at 10 years purchase; plus other claims for consequential damage. I shall have to refer to section 8 in more detail later in this judgment. The General Manager was willing to review the quantum of the compensation offered, but refused to concede the principal (ex. 1 (26)).

The appellant accordingly brought his action in the Supreme Court, alleging that the Governor had no power under section 28 of the Crown Lands Ordinance, 1902, or at all, to authorize the High Commissioner for Transport or his servants or agents or contractors to exercise any of the powers referred to in the Notice No. 570 of 7th June, 1947 (hereinafter referred to as the Notice), that the said authorization was therefore ultra vires, null and void and that the High Commissioner for Transport had committed a trespass upon the appellant's land. Alternatively, if the High Commissioner for Transport lawfully entered upon the appellant's farm, the compensation payable should be assessed under section 8 of the Railway Ordinance.

The respondent in his statement of defence denied that the area of 8.37 acres had been acquired or vested in him and denied that he had entered upon this area under the provisions of the Railway Ordinance. He pleaded the validity of the authorization under the Notice and that he was exercising on behalf of the Governor the powers conferred by the Crown Lands Ordinance, 1902. He further pleaded that acts done by persons in the service of the High Commissioner for Transport stand in the same position as acts done by persons in the public service of Kenya and are acts of the Governor performed by his agents in the public service: alternatively, that in doing the acts complained of the High Commissioner for Transport did them under a contract between himself and the Government of Kenya.

The appellant in his reply besides joining issue raised a question of estoppel but this has not been pursued on the appeal and need not be further referred to. The allegation of trespass was not seriously pressed either before the Supreme Court or on this appeal though Mr. Salter stated that he was not entirely abandoning it.

The learned Judge in the Court below rejected the respondent's argument that the High Commissioner for Transport was a "contractor" within the meaning of section 28 of the Crown Lands Ordinance, 1902, but he accepted the alternative proposition that the authorization was validated by reason of the general power vested in the Governor by section 26 of the Interpretation and General Clauses Ordinance (Chapter 1 of the Laws of Kenya, 1948), which reads, so far as is material:-

"Where by any Ordinance the Governor is empowered to exercise any powers or perform any duties, he may, unless by law expressly prohibited from so doing, depute any person by name or the person for the time being holding any office designated by him to exercise such powers or perform such duties on his behalf ..."

The learned Judge further held that, apart from section 26 of Chapter 1, there is an inherent power in the Governor to depute the exercise of his powers to a competent official "for it would be absurd to expect the Governor in person to 'enter upon such land' under section 24 of the Crown Lands Ordinance, 1902, and it is unreasonable to suppose that section 28 of that Ordinance exhausts his powers of delegation in that respect, for this would have the result that while he could lawfully delegate to the servant of a contractor he could not depute the actual exercise of those powers to a very highly placed official such as the High Commissioner for Transport, acting as his servant".

These findings form the foundation of the judgment and I will deal first with the appeal from those findings (paragraphs 1, 2 and 3 of the memorandum of appeal), leaving the trial Judge's other findings for later consideration. Before considering these however it will be convenient to dispose of the respondent's contention that the learned trial Judge was wrong in holding that the High Commissioner for Transport was not a contractor within the meaning of section 28 of the Crown Lands Ordinance, 1902.

In support of this contention it was argued that the word "contractor" must in 1902 and in relation to the Railway have been intended to have a wide meaning since, at that time, the Government of the East African Protectorate had no direct interest in the Railway, and that the legislature must have intended to include in the term "contractor" the authority then responsible for its construction, to whom the High Commissioner for Transport was the successor in law: alternatively, that even on a narrow construction of the word "contractor" there was a contract for the carrying out of this work between the Government of Kenya and the High Commissioner for Transport embodied in the relevant proceedings and resolution of the Legislative Council of Kenya and in the Notice.

I am doubtful whether the historical facts support the first limb of this argument. The Crown Lands Ordinance, 1902, came into force on 1st October, 1902, and, according to the official history of the Railway (cited above) at page 241, the Railway was made over to the Protectorate Government on 1st October. 1903, and became an integral part of that Government. If, therefore, the supposed state of affairs upon which the argument is based ever existed at all, it did not persist for long. But, however that may be, the first limb of this argument takes no account of the fact that section 28 is not limited to railways but extends also to contractors employed in the various other works authorized under sections 23 to 27. There is no reason to suppose that in connexion with those works, the expression "contractor" was intended to have any meaning other than the usual one and therefore no justification for giving it a different meaning when applied to a Railway. We do know that at that date the Uganda Railway had been or was being constructed at the cost of the Imperial Government on land appropriated to the Crown and that therefore this power of re-entry was not likely to be required for it: but for all we know to-day the Government of the Protectorate may have contemplated building on its own account other railways for which it would employ its own contractors. Such a possibility is certainly contemplated in section 22 of the Kenya and Uganda (Transport) Order in Council, 1925.

I think the second limb of the argument is equally mistaken. I do not propose to go deeply into this and deem it sufficient to say that the suggested contract seems to me an impossibility in law. In every contract there must be at least two parties, a promiser and a promisee; and when a servant or agent enters into a contract in the course of his duties as servant or agent he contracts on behalf of his principal. Now the Governor and the High Commissioner for Transport were both servants of the Crown and were acting as such in all that they did in this matter. No doubt they could make an administrative arrangement between themselves for the carrying out of the realignment sanctioned by the Legislative Council but, as I see it, such an arrangement between two servants of the same principal cannot in law constitute a contract.

This brings me at last to the first of the two main questions raised in this appeal. Mr. Salter concedes that the Governor could, by the exercise of his powers under section 26 of Chapter 1 have deputed to the High Commissioner for Transport or to the General Manager or any other Railway official the exercise of the right to enter upon the appellant's farm under section 24 of the Crown Lands Ordinance, 1902, and that such delegation need not have been in writing. But, he says, this was not done; the Governor gave notice that he was exercising or purporting to exercise the special power conferred by section 28 of the Crown Lands Ordinance and cannot be allowed to fall back on any general or inherent power. Where the Crown purports to exercise powers specifically conferred by a statute, it must act in accordance with the provisions of that statute:<br>Attorney General v. de Keysers Hotel, (1920) A. C. 508. He also referred to Carltona, Ltd. v. Commissioner of Works, (1943) 2 All E. R. 560 and, while conceding that the Governor could exercise his powers through a subordinate, contended that in the absence of special statutory provision he cannot delegate to an independent person such as the High Commissioner for Transport. This argument might be answered on the authority of Corsellis v. London County Council, (1908) 1 Ch. 13, by saying that it was not a delegation on the part of the Governor to arrange that some other person should perform the ministerial acts necessary to carry out such works as, in the exercise of statutory powers he, or the Legislative Council of the Colony, had determined should be done.

It seems to me, however, that arguments based on decisions in cases where the servants of the Crown were exercising purely statutory powers to occupy, requisition or acquire freehold property, have little relevance to the facts of this case. The fundamental fact in the instant case, on which there has been insufficient emphasis, is that the appellant stands in contractural relation with the Crown, namely, in the relation of lessee and lessor. (No point has been made of the fact that at the time of the acts complained of the lease was not in his name: he has been treated throughout as standing in the shoes of the lessee.) The terms and conditions of the contract are contained in the lease and in the Ordinance with

which it must be read, and in construing these it makes no difference that the lessor is the Crown or that some of the terms are embodied in a statute.

The appellant must and does admit that the Crown as lessor had the right to re-enter under the lease, though he has contended that section 24 only gives the Crown the use of the land upon which entry is made. On this last point I am in entire agreement with the learned Judge in the Court below who said:

"I do not think this contention can stand in the light of the context of the section, quite apart from the historical connotation of the expression 'entering upon' land in English law, which carries with it the notion of taking possession of it. For the section speaks of entering upon the land and constructing railways, canals and roads on it for the benefit of the public. This must necessarily imply a taking possession of at least so much of the land as is occupied by the railway, canal or road. Moreover the section goes on to provide that no compensation shall be payable 'for the land'. Such a provision would have been unnecessary if mere entry upon it without any taking possession were contemplated; just as in section 25, which gives similar powers of entry upon land of less than 100 acres, the provision that compensation shall be payable for the land would have been inappropriate, since a mere entry on land without a taking possession of it would properly give rise to no claim for compensation, but merely to a claim for damages for any injury incurred through the entry."

We were informed by counsel for the respondent that in fact the area of 8.37 acres has been resumed by the Crown: it has been excised from the lease and an apportionment of rent has been made, which has been accepted by the appellant.

The appellant, however, says that the right to enter could only be exercised in a particular way, namely, by the Governor entering himself or by one of his subordinates or by a person validly authorized under section 28 and he complains that entry was made by another servant of the lessor, but not duly authorized or deputed, and that such entry was wrongful. It is really only a complaint that the proper procedure has not been followed: the Governor, the High Commissioner for Transport, the General Manager and the Railway officials are all servants of the Crown, and the acts complained of are all acts done by servants of the lessor.

It has been argued for the respondent that the actual entry was by the General Manager and other Railway officers who are deemed to be servants of the Government of Kenya and that their entry, which was certainly with the knowledge or consent of the Governor, can be properly considered as an act of the Governor himself. I agree with Windham, J. that section 28 was not intended to be exhaustive: its object was clearly to enable the Crown to authorize independent contractors, their servants and agents to enter and do anything that the Crown as lessor could itself do. I think that Corsellis v. London County Council (supra) is authority for saying that such authorization could have been validly given even without this statutory power. A fortiori, there seems to me no reason in law why one servant of the lessor should not be able, without the aid of any statutory authority, to authorize another servant to do what he himself could have done under the contract. I will, however, assume that the entry was wrongful as the appellant contends. What then is his remedy and what the measure of the damages he has suffered if any? Surely his remedy is not against the servant but against the principal, that is, the lessor: and the measure of damages is the additional loss, if any, that he has suffered by reason of the wrongful entry as compared with the loss he would have suffered had the entry been by a duly authorized person. If that is the correct test, then not only has the appellant failed to show any case for damages, but his action is misconceived.

But the appellant's case does not stop here. He says, in effect, that the contractual right to enter and resume or use the land needed for the realignment of the railway has not been exercised. He hesitates to say that the High Commissioner for Transport entered as a trespasser and says that it should be presumed. he was exercising a lawful power. This power we find in the Railway Ordinance and contend therefore that the basis of compensation must be found in that Ordinance.

In putting forward this argument, the appellant faces an immediate difficulty in the construction of section 8 which provides:-

"8. (1) The High Commissioner shall do as little damage as possible in the exercise of the powers conferred by sections 4, 5, 6, and 7, and compensation shall be paid for any damage caused by the exercise thereof.

(2) A suit shall not lie to recover such compensation or any compensation payable under $7$ (b) but in case of dispute the amount thereof shall be determined and paid in accordance, so far as may be, with the provisions of sections 11 to 15 both inclusive, section 18 to 34 both inclusive, and sections 53 and 54 of the Indian Land Acquisition Act, 1894, and the provisions of sections 51 and 52 of that Act shall apply to the award of compensation."

He seeks to meet this by saying that section 3 and 4 of the Railway Ordinance must be read together. The respondent on the other hand has contended that neither of these sections conferred upon the High Commissioner for Transport the power to acquire private land or to resume leased Crown land; that power is reserved to the territorial Government. Section 3 merely sets out the capacity of the corporation known as the High Commissioner for Transport and defines the things which he may do. Section 4, which was derived from section 16 (and, as regards paragraph (f), section 32) of the United Kingdom Railway Clauses Act. 1845, should be construed as the corresponding section 16 has been construed in England: the effect of the English decisions is that before any of the works specified in the section can be done the corporation must first acquire the land under other powers, which in England were always conferred by a special Act. In East Africa the acquisition has usually to be made under the relevant legislation of the Colony, but in this particular case it was done by resumption under the lease. In my view this contention is correct, and I am in general agreement with the following passage from the judgment of Windham, J., on this point:

"The express mention of sections 4, 5, 6 and 7 in the above provisions" of section 8 (1) and the mention of 'such' compensation in section 8 (2) make it clear to my mind that compensation in accordance with the Indian Land Acquisition act, 1894, will be payable only in respect of damage caused in the exercise of powers under sections 4, 5, 6 or 7. And of these the only one which could be relevant to the present case is section 4. That section, however, says nothing at all about entering upon land or acquiring the use of it. It merely empowers the High Commissioner to execute certain works upon lands for the purpose of constructing a railway or for incidental purposes, and this 'subject to the provisions of any enactment for the time being in force for the acquisition or resumption of land for public purposes'. Clearly then, section 4 does not itself give any power to the High Commissioner to enter upon and acquire the use of the land, but merely sets out the works which he may execute upon it, once he is by virtue of some empowering provision in occupation of it. Section 4 appears to be closely modelled upon section 16 of the English Railway Clauses Act, 1845; and a series of English decisions has been cited by learned defence counsel among which may be mentioned Beauchamp v. Great Western Railway Co. (1868) 3 Ch. Ap. 745; Rangely v. Midland Railway Co, (1868) 3 Ch. Ap. 306; and Wilkinson v. Hull Railway &

Dock Co. (1882) 20 Cr. D. 323, wherein the limited scope of that section has been emphasized. The entry on to and acquisition of the use of the 8.37 acres of Lengenny Farm, therefore cannot have been made under section 4 of the Kenya and Uganda Railway Ordinance. 1927, but can only have been made under some provision conferring express powers of compulsorily entering and acquiring the use of the land, in short, as I see it, under section 24 of the Crown Lands Ordinance, 1902. It is contended for the plaintiff that section 3 of the Kenya and Uganda Railway Ordinance, 1927, as amended in 1938, confers the necessary power of entry and acquisition and ought to be read together with section 4, for the purpose of importing the compensation provisions set out in section 8. Section 3 does empower the High Commissioner 'in so far as is not inconsistent with the provisions of any law' to acquire or use immovable property for railway purposes. But so far as compensation is concerned section 8 which deals with compensation in respect of action taken under the Ordinance, makes mention, as I have already said, only of sections 4, 5, 6 and 7 and not of section 3 and I see no justification for implying a reference to section 3 in it. A perusal of those four sections which section 8 does mention would seem to suggest that section 8 is concerned only with compensation for damage suffered through the activities permitted by those sections, in short injurious affection to other land or property, and not with compensation in respect of the use of the land actually occupied.

Viewed from both aspects, then, the entry upon and acquisition of the use of the 8.37 acres of Lengenny Farm by the High Commissioner for Transport was in my opinion made under section 24 of the Crown Lands Ordinance. 1902, and if any compensation is payable in respect of that entry and use it is payable in accordance with that section and not in accordance with section 8 of the Kenya and Uganda Railway Ordinance, 1927."

This conclusion is sufficient to dispose of the appeal which in my opinion should be dismissed with costs. But in case I should be wrong and the matter should go further, I think I should deal with one other point discussed during the argument, namely, if it were held that the entry on the appellant's farm was a trespass, whether an action in tort would lie against the present defendant in respect thereof. It is common ground that the original defendant, the East Africa High Commission, could not be sued in tort; it is an emanation of the Crown and no express provision was made for such an action. If therefore the action did not lie against the original defendant it cannot lie against the substituted defendant who has merely succeeded to the liabilities of the East Africa High Commission.

But, if the trespass were committed by the High Commissioner for Transport, he could have been sued in tort by the ordinary process of law (section 1 (2)) of the Kenya and Uganda (Transport) Order in Council, 1925, as amended by the Order in Council of 1935). Section 11 of the East African Railways and Harbours (Transitional Provisions) Act (No. 2 of 1948) provided, inter alia, that "all rights, liabilities and engagements existing and all actions, suits, and legal proceedings pending by or against the High Commissioner for Transport shall be vested in and attached to ... the High Commission". It is true that the appellant's action was not pending when that Act came into force on 15th October, 1948, but the liability of the High Commissioner of Transport for any trespass committed by him existed at that date and attached to the High Commission by virtue of this section. I think therefore it must follow that, although the East Africa High Commission could not be sued in respect of its own torts, it was liable to be sued in respect of any tort for which the High Commissioner for Transport could have been sued.

SIR BARCLAY NIHILL (President).—I have had the advantage of reading the judgment delivered by the learned Vice-President and for the reasons he has given with which I am in full agreement I too am of the opinion that this appeal must be dismissed with costs. I also consider that on the hypothesis that a trespass on the appellant's land was committed by the High Commissioner for Transport, then the East Africa High Commissioner was liable and could have been sued in respect of the tort, up to the enactment of the East African Railways and Harbours Administration Act, 1950 (Act No. 2 of 1950 of the East Africa Central Legislative Assembly) by which act *inter alia* any liabilities then accruing to the East Africa High Commission in respect of the Railways were transferred to the corporation sole now known as the Commissioner of Transport.

On the question of costs Mr. Salter submitted that in any event the appellant should not be ordered to pay the respondent's costs because at one stage in the correspondence the Railway Administration led him to believe that they admitted liability to pay compensation on the basis<br>laid down in the Indian Land Acquisition Act. This may well be so but it is also clear from the correspondence that the respondents corrected this erroneous assumption of liability and made their position perfectly clear before this action was instituted. That being the case we can see no sufficient reason for departing from the general rule and we accordingly order that this appeal be dismissed with costs.

SIR HECTOR HEARNE (Chief Justice of Kenya).—I have had the advantage of reading the judgment of the learned Vice-President. For the reasons he has given I would also dismiss the appeal with costs.