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ELCPartially AllowedNotice of motion dated 23rd June 2015 (suit not otherwise numbered in the judgment)· [2017] KEELC 2247 (KLR)

Mutaratara Enterprises Limited v Kenya Airports Authority [2017] KEELC 2247 (KLR)

High Court of Kenya
19 June 2017
EOE.O. Obaga
1,438 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court ordered Kenya Airports Authority to reopen a public access road it had fenced off, ruling no one can block a public road and dictate reopening terms.

What this practically means

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Executive summary

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The applicant, registered owner of LR No. 24089 Nairobi, moved the court by notice of motion dated 23rd June 2015 seeking an injunction restraining the respondent (Kenya Airports Authority) from blocking an 18-metre public access road separating the two parties' parcels, and a mandatory injunction to remove a fence erected on 13th June 2015. The respondent denied the existence of a public access road, asserting the track was used for airport security patrols and should be blocked on security grounds. The court directed two Government Surveyor site visits (August 2015 and November 2015); the reports confirmed the existence of a blocked public access road, after which the respondent conceded and offered to reopen the road subject to conditions including the applicant erecting a security gate at its own cost and withdrawing the suit. The applicant rejected the conditions. Applying the Giella v Cassman Brown principles for temporary injunctions and the Court of Appeal's guidance in Sharrif Abdi Hassan v Nadhif Jama Adan on mandatory injunctions at the interlocutory stage, the court found a prima facie case with probability of success, held the respondent had no right to unilaterally close the road or impose stringent reopening conditions, and that airport security was the respondent's own mandate. The court also dispensed with the 30 days' notice requirement under Section 34 of the Kenya Airports Authority Act owing to urgency. The motion was allowed in terms of prayers 2, 5, 6 and 7, with costs to the applicant.

Key legal issues

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01

Whether the Section 34 notice requirement under the Kenya Airports Authority Act could be dispensed with

Holding

Yes - the urgency of the matter meant the applicant had no time to give the 30 days' notice

Reasoning

The suit was filed under certificate of urgency after the respondent's guards barricaded the road on 13th June 2015. The court held the applicant had no time to give the statutory one month's notice and that the requirement could be dispensed with in the circumstances of the case.

p. 3
02

Whether a mandatory injunction could issue at the interlocutory stage

Holding

Yes - the applicant established a prima facie case with probability of success and the wrong could be remedied at once

Reasoning

Two Government Surveyor reports confirmed the existence of a public access road blocked by the respondent, which had initially denied its existence. The court found no point in waiting for full trial since the blocking was admitted and the injury was ongoing; security concerns could be addressed through proper channels without blocking the applicant.

p. 3

Legal principles established

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  • Mandatory injunctions may be granted at the interlocutory stage where the party against whom it is sought is prima facie on the wrong
  • A party cannot unilaterally close a public access road and then impose conditions on its reopening

Court orders

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  1. 1.Dispensed with the provisions of Section 34 of the Kenya Airports Authority Act requiring 30 days' notice of intention to sue (prayer 2)
  2. 2.An order of injunction restraining the defendant from putting up a fence, blocking, barricading the 18 metre public access road or denying the plaintiff access thereto pending hearing and determination of the suit (prayer 5)
  3. 3.A mandatory injunction compelling the defendant to remove the fence or structures erected along the 18 metre public access road (prayer 6)
  4. 4.Costs of the application provided for (prayer 7)

Authorities

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Legislation

  • Kenya Airports Authority ActSection 34

Cases cited (2)

  • Giella Vs. Cassman Brown & Co. Ltd
    [1973] EA 358
  • Sharrif Abdi Hassan – Vs- Nadhif Jama Adan
    (Civil Appeal No. 121 of 2006) eKLR
Jurisdiction invoked
Inherent jurisdiction of the High Court over the suit; application under the Kenya Airports Authority Act, Section 34 (notice of intention to sue) considered

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Mutaratara Enterprises Limited v Kenya Airports Authority [2017] KEELC 2247 (KLR)", Case Analysis (2017). Notice of motion dated 23rd June 2015 (suit not otherwise numbered in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2247/eng@2017-06-19

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