COUNTY PERMITS AND NEMA REGULATIONS ON THE DEVELOPMENT OF LAND ADJACENT TO AIRPORTS

INTRODUCTION

In the case of Kanyuira v Kenya Airports Authority (Petition 7 of 2017) [2022] KESC 30 (KLR) it was held that in a claim for violation of the right to property for a cessation order being issued by the Kenya Airports Authority to stop the development of land adjacent to an airport, regulatory authorities such as NEMA had to work together when issuing development permits. One or two approvals without the concurrence of the other would not do. There was need for close coordination between all the bodies to avoid anarchy, particularly in such sensitive areas as airports. A disjointed approach would compromise the security and safety of the public.

BRIEF FACTS

The appellant; Kanyuira had undertaken to construct 24 maisonettes on land adjacent to Wilson Airport. He secured financing in the sum of Kshs. 67,671,000.00 and began construction.?Before the commencement of the construction, Kenya Airports Authority (the KAA) issued a cessation order to stop any construction or development on the ground that the suit property fell within the protected aircraft runway protection zone of the Wilson Airport.

Kanyuira having been aggrieved in the High court appealed to the Supreme Court seeking a declaration that his right to property had been violated and sought special damages for loss of earnings, a liquidated sum of Kshs. 992,336,004 which he claimed was loss suffered based on violations of his right to property.

ORDERS

1. Jurisdiction was everything. Without it, a court had no power to make one more step but to down its tools and dismiss the case in its entirety.
2. The right to own property and develop it to its full potential is a human right and is recognized not only by the Constitution but also by international and regional instruments that Kenya was a party.
3. The appellant was the holder of a certificate of title to the suit property issued and he was the proprietor of the land and is the absolute and indefeasible owner thereof, only subject to the encumbrances, easements, restrictions, and conditions contained therein or endorsed thereon. The terms of the grant of the title permitted the appellant to construct housing units within six months of issue and the suit property was to be used only for residential purposes.
4. All the powers vested in the respondent by sections 14, 15, and 16 of the KAA Act were aimed at guaranteeing the safety of aircraft, vehicles, and persons using the aerodrome as well as preventing danger to the public. There was no explanation as to how the construction would not interfere with aviation safety and security.
5. Prior approval or rejection had to of necessity be based on the independent assessment by the respondent of architectural designs of any proposed construction from which matters like the height of the proposed building could be ascertained. It would be irrational for an investor to put up a building and then seek authorization with the attendant risk of rejection by the authorizing agency.
6. The Appellant never questioned the KAA whenever he sought approval for the construction of the residential homes.
7. It was unfortunate for the appellant to contend that the project having been approved by the then City Council of Nairobi and by National Environment Management Authority (NEMA), that he did not require approval from the Kenya Airport Authority.
8. It is a fact that Kanyuira required licenses from KCAA, NEMA, and NCC before any commencement of construction due to the proximity of the property to the said governmental institutions.
9. NEMA was responsible for promoting the integration of environmental considerations into development policies, plans, programs, and projects with a view to ensuring the proper management and rational utilization of environmental resources on a sustainable basis. The quality of human life had to be preserved.
10. Each of the multi-actor regulatory agencies inevitably involved highly-specialized expertise, with different legal mandate and framework. Their mandates could at times overlap or contradict. That was instead of looking at single institutions. One had to map the full and relevant existing legislative spectrum to appreciate their linkage.
11. The fragmentation of roles between the regulators only went to blur their jurisdictional boundaries, often making it difficult to decipher when the jurisdiction of one regulator ended and that of the other began. To avoid that, the agencies had to develop and maintain synchrony with each other.
12. It was in acknowledgment and appreciation of the need for synergy between the regulating agencies that NEMA that the approval was subject to the appellant complying with all the relevant principal laws, by-laws, and guidelines issued for the development of the project by all relevant authorities.
13. The compensation contemplated by articles 22 and 23 of the Constitution could only be awarded where there was proof that a right or fundamental freedom in the Bill of Rights had been denied, violated or infringed, or threatened.
14. A claim in public law for the deprivation of fundamental rights and freedoms, compensation could include loss of earnings.?There was nothing in section 33 of the KAA Act that would entitle the appellant to be compensated in the claimed sum of Kshs. 992,336,004. That was because his loss, injury, or damage if any, were as a result of his own subversive actions.
15. The right to property under article 40 of the Constitution was not an absolute right. That right could be limited by law whenever it was justified that there was a danger to be faced by the public. The security and safety of flight paths were in the public interest which permitted the limitation on the enjoyment of the right and freedoms in the Bill of Rights of a private individual.
16. In determining whether the limitation of a right was justifiable, a court had to consider the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, and the fact that the need for enjoyment of the right by one individual did not prejudice the rights of others.
17. The rights of the appellant were not extinguished as Kenya Aiport Authority was only restricting its activities for the sake of public safety and security.

CONCLUSION

It is crucial to note that the safety of the public is more important than any construction in order to preserve the environment and better health.