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Court of AppealPartially AllowedCivil Appeal No. 90 of 2016· [2017] KECA 75 (KLR)

County Government of Kwale v Kenya Airports Authority [2017] KECA 75 (KLR)

Court of Appeal of Kenya
12 October 2017
AVAlnashir VisramWKW. KaranjaMartha Karambu KoomeM. K. Koome
5,264 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed airports managed by Kenya Airports Authority are exempt from county land rates, but quashed a High Court order issued without proper leave.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Visram, Karanja & Koome, JJ.A) partly allowed the County Government of Kwale's appeal against Emukule, J.'s decision granting Kenya Airports Authority judicial review remedies of certiorari and prohibition over a rates demand of Kshs. 43,221,310. The Court framed four issues: the scope of judicial review jurisdiction, the respondent's locus standi, whether the Judge erred in issuing the orders, and whether the airstrip was exempt from rates. It held that pleadings bind the parties and the court; leave had been sought only for prohibition in respect of three plots belonging to third parties, on which the respondent lacked locus, and no demand notice had been issued for those plots. The certiorari quashing the demand notice for Kwale/Diani Beach Block/675 was granted without leave and without being sought, and was vacated. On the substantive question, the Court affirmed that aerodromes managed and controlled by the Kenya Airports Authority are exempt from county rates under Rule 4 of the Valuation for Rating (Public Land) Rules, consistent with Article 209(5) of the Constitution, which qualifies but does not prohibit county taxation; and that an airport cannot be severed into ratable and exempt portions. The appeal succeeded only as to the certiorari order; the exemption finding was affirmed and each party was ordered to bear its own costs.

Key legal issues

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01

Scope of judicial review jurisdiction

Holding

Judicial review concerns the decision-making process, not the merits; the court does not sit as an appellate court over the decision-maker.

Reasoning

The Court restated that the High Court in judicial review examines how a decision was made - jurisdiction, hearing, relevant considerations - not whether it was justified on the evidence. Acting as an appeal court over the decider would trespass into the merits, which is outside the province of judicial review.

p. 4
02

Binding effect of pleadings and the need for leave

Holding

The Judge erred in quashing the demand notice for Kwale/Diani Beach Block/675; the respondent's pleadings concerned the three plots only, and leave for certiorari was never sought or granted.

Reasoning

Pleadings bind both the parties and the court in an adversarial system. Leave had been sought only in respect of prohibition over the three plots. Certiorari over the demand notice for Block/675 was therefore granted without jurisdiction and without leave, and had to be vacated.

p. 4
03

Locus standi of the respondent

Holding

The respondent had no locus standi in respect of the three plots because they belonged to third parties and no demand notice had been issued in respect of them.

Reasoning

The three plots were registered to named third parties; the respondent did not demonstrate any interest in them and was not their authorised representative. Applying Euton Njuki Makungo, no person may initiate judicial review proceedings in relation to land of another without due authorisation.

p. 5
04

Exemption of KAA aerodromes from county rates

Holding

Ukunda Airstrip, an aerodrome managed and controlled by the Kenya Airports Authority, is exempt from rates under Rule 4 of the Valuation for Rating (Public Land) Rules; an airport cannot be split into ratable and non-ratable parts.

Reasoning

Rule 4 excludes aerodromes within the meaning of the Civil Aviation Act and KAA Act managed by KAA. Article 209(5) qualifies, but does not prohibit, county taxation powers; no prejudice to national economic policies was demonstrated. Severing lounges and check-in areas from runways for rating would produce absurdity, since a county might close those areas on default, impeding passenger processing.

p. 7

Legal principles established

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  • A High Court in judicial review may not grant certiorari in respect of a decision where leave for that remedy was never sought or granted; leave under Order 53 is a mandatory prerequisite and courts are bound by the parties' pleadings.
  • An applicant for leave to apply for judicial review must demonstrate a prima facie arguable case fit for further investigation; leave is not granted as a matter of course.
  • Airports and aerodromes managed and controlled by the Kenya Airports Authority fall within the exemption in Rule 4 of the Valuation for Rating (Public Land) Rules and are not ratable; an airport cannot be severed into ratable and exempt parts.
  • Article 209(5) qualifies but does not abolish county taxation powers; a party invoking it must demonstrate prejudice to national economic policies.
  • An appellate court will not interfere with a judge's exercise of discretion unless the judge misdirected himself or was clearly wrong and injustice resulted.

Court orders

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  1. 1.The appeal is allowed only to the extent that the Judge erred in granting orders of certiorari which were not asked for and without the requisite leave; the certiorari order quashing the demand notice is vacated
  2. 2.The High Court's finding that no land rates are ratable in respect of Ukunda airstrip is affirmed
  3. 3.Each party to bear its own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 1(4), 6(2), 159(2), 175(b), 189, 202(1), 209(1)-(5), 259; Paragraph 7 of the Sixth Schedule
  • Civil Procedure RulesOrder 53(1)(1)
  • Civil Procedure ActOrder 53
  • Valuation for Rating ActSections 2 (implied via Rules), 27(1) and proviso
  • Rating Act (Cap. 267)Section 23(1)
  • Valuation for Rating (Public Land) RulesRules 3 and 4
  • Kenya Airports Authority Act (Cap. 395)Section 2
  • Civil Aviation Act (Cap. 394)referenced in Rule 4 definition
  • Kwale County Finance Actrate-imposing provisions

Cases cited (13)

  • Coffee Board of Kenya vs. Thika Coffee Mills Limited & 2 Others
    [2014] eKLR
  • Independent Electoral and Boundaries Commission & Another vs. Stephen Mutinda Mule & 3 others
    [2014] eKLR
  • Euton Njuki Makungo vs. Republic & 2 others
    [2014] eKLR
  • Municipal Council of Mombasa vs. Republic, Ex parte Umoja Consultants Ltd.
    [2002] eKLR
  • Associated Provincial Picture House vs. Wednesbury Corporation
    [1914] 1 KB 222
  • Captain (Rtd) Charles Masinde vs. Augustine Juma & 8 others
    [2016] eKLR
  • Republic vs. County Council of Kwale & another ex parte Kondo & 57 others
    [1998] 1 KLR (E&L)
  • Polycarp Wathuta Kanyugo & 2 Others vs. The County Government Of Kirinyaga
    [2014] eKLR
  • Mirugi Kariuki vs. Attorney General, Civil Appeal No. 70 of 1991
    [1990-1994] EA 156; [1992] KLR 8
  • Malawi Railways Ltd. vs. Nyasulu
    [1998] MWSC 3
  • Kenya Airports Authority vs. Mitu-Bell Welfare Society & 2 others
    [2016] eKLR
  • In the Matter of the Kenya National Commission on Human Rights, Supreme Court Advisory Opinion Reference
    [2014] eKLR
  • Base Titanium Limited vs. The County Government Of Mombasa & another
    [2017] eKLR
On appeal from
High Court of Kenya at Mombasa
Misc. Applic. No. 18 of 2016
Jurisdiction invoked
Appellate jurisdiction over an appeal against exercise of the High Court's discretion in judicial review; leave-based appeal under the Court's appellate jurisdiction (no specific article invoked in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "County Government of Kwale v Kenya Airports Authority [2017] KECA 75 (KLR)", Case Analysis (2017). Civil Appeal No. 90 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/75/eng@2017-10-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.