Kenya Airports Authority v Mitu-Bell Welfare Society & 2 others (Civil Appeal 218 of 2014) [2016] KECA 432 (KLR)

Article 22(2)(d) permits associations to act for their members, and Article 260 defines 'person' to include an association or body of persons whether incorporated or unincorporated. The society produced a certificate of registration under the Societies Act and sued for its members whose homes were demolished, so the ground of appeal on locus failed.

Articles 9, 10 and 23(3) permit public participation but do not authorise the public to craft reliefs; judicial decision-making is non-delegable. Reliance on Telkom Kenya v Ochwada and ex parte Enahoro confirmed that delegation of judicial responsibility is a nullity. Orders involving third parties were also based on unpleaded issues, since Pamoja Trust was neither a party nor joined as amicus curiae.

A judgment finally determines rights and liabilities and terminates the court's jurisdiction. The 'partial judgment' or interim judgment concept is unknown to Kenyan law. Supervisory orders (continuing mandamus/structural interdicts) are a comparative development with no equivalent constitutional provision in Kenya; however, a properly crafted supervisory order under Article 23(3) is possible if not vague.

The Constitution prevails over any inconsistent international norm, and neither the UN nor any international organisation legislates for Kenya. Courts invoking Article 2(5) must first satisfy themselves that the rule relied on is a general rule of international law.

The court affirmed justiciability of socio-economic rights but held that the enforcement of Article 43 cannot override Article 40 or the Limitation of Actions Act. Redistribution of property is a legislative and executive function with public participation, not a judicial one; Kenyan courts must also not mechanically adopt foreign jurisprudence such as Grootboom without regard to the differing constitutional and statutory context.

The burden lay on the 1st respondent to prove on a balance of probabilities that the security agents acted at the appellant's behest; security agents cannot lawfully take instructions from the appellant. Possibility of instigation is not probability, so suspicion and speculation cannot found civil liability.

A statutory corporation is confined to the purposes of its incorporation. Compelling KAA to formulate housing policy would push it beyond its statutory functions; the formulation of policy is an executive and legislative function from which courts should refrain under the political question doctrine and Article 20(5)(c).

The trial court made correct findings that the Commissioner was not culpable yet issued composite orders against him, which was erroneous in law. The Attorney General is an advocate for government, and it is good practice to sue the specific ministry responsible; technically the orders bind the State.

The trial court's evaluation consisted of rhetorical questions about discrimination rather than findings of fact on the flight path, garbage attracting birds, and the safety of the aerodrome. Security and safety of flight paths is a reasonable and justifiable limitation on Bill of Rights freedoms under Article 24.