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ELCDismissedELC No. 198 of 2011· [2018] KEELC 2559 (KLR)

Nebange Limited v Attorney General & 4 others [2018] KEELC 2559 (KLR)

Environment and Land Court
28 June 2018
EOE. O. Obaga
2,360 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court dismissed a property owner's bid to stop demolition of floors built too high near Moi Airbase without civil aviation approval.

What this practically means

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Executive summary

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Nebange Limited, the registered owner of LR No. 36/11/1057 in Eastleigh, Nairobi, petitioned the Environment and Land Court after officers of the Kenya Defence Forces and the National Police Service marked its storey building 'Demolish' on 22nd November 2011, requiring it to demolish four of the six floors built. The Petitioner, which had obtained change of user and building plan approvals from the Nairobi City Council and NEMA approval, sought declarations that the threatened demolition violated its rights to property (Articles 40(1) and 40(3)), legitimate expectation and fair administrative action (Article 47), and an order that the threat was unconstitutional, null and void, plus costs. The respondents and the first interested party, the Kenya Civil Aviation Authority, responded that Moi Airbase Eastleigh was a protected aerodrome area; ICAO standards, ratified by Kenya and domesticated through the Civil Aviation Act and the Civil Aviation (Aerodromes) Regulations, restrict buildings within one kilometre of the runway to two floors and within two kilometres to four floors. The Petitioner had never sought aeronautical approval from the KCAA or the military, and no aeronautical study was carried out. The court, Obaga J, held that the right to own property is limitable under Article 24 and that the respondents acted lawfully; that treaties ratified by Kenya form part of Kenyan law under Article 2(6); and that, no administrative step beyond the marking having been taken, there was nothing capable of judicial review. The Petition was dismissed with costs to the respondents and the first interested party.

Key legal issues

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01

Whether the threatened demolition order infringed the Petitioner's right to property under Articles 40(1) and 40(3)

Holding

No violation; the respondents acted lawfully in requiring reduction of the building to two floors as the Petitioner had not sought the required aeronautical approval

Reasoning

The building was within the vicinity of Moi Airbase, Eastleigh aerodrome. ICAO standards, domesticated through the Civil Aviation Act and Aerodromes Regulations, restrict building heights within one and two kilometres of the runway to two and four floors respectively. The Petitioner had constructed six floors without consulting the military or KCAA and without an aeronautical study. The right to own property is limitable under Article 24, and the respondents acted in accordance with the law.

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02

Whether the Petitioner's rights under Article 47 (fair administrative action and legitimate expectation) were threatened

Holding

No; no administrative action capable of court review had been taken beyond marking the building 'Demolish'

Reasoning

The court held that the marking of the building 'Demolish' was the only step taken, and that nothing further had occurred that could be the subject of judicial review. This was therefore not the proper forum for judicial review. Parliament's Fair Administrative Action Act No. 4 of 2015 provides the procedures for seeking redress under Article 47(3).

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Legal principles established

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  • In a constitutional petition the petitioner must set out with a reasonable degree of precision the provision said to have been infringed and the manner of infringement
  • The right to own property may be limited as provided in Article 24 of the Constitution, including restrictions on building heights in the vicinity of aerodromes under the Civil Aviation Act
  • Treaties and conventions ratified by Kenya form part of Kenyan law under Article 2(6) of the Constitution
  • A developer of a structure within a declared aerodrome area is under a duty to seek approval from the Kenya Civil Aviation Authority, where an aeronautical study is carried out

Court orders

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  1. 1.The Petition is dismissed with costs to the respondents and the first interested party

Authorities

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Legislation

  • Constitution of the Republic of Kenya, 2010Articles 2(6), 20, 21, 22, 24, 258, 40(1), 40(3), 47, 47(3), 65
  • Protected Areas Act Cap 204 Laws of KenyaSection 3; Legal Notice No. 309 of 1961
  • Civil Aviation Act Cap 394 Laws of Kenya
  • Civil Aviation (Aerodromes) Regulations 1978 and 1986Legal Notice No. 231 of 1986
  • Civil Aviation (Aerodromes) Regulations 2008
  • Fair Administrative Action Act No. 4 of 2015

Cases cited (1)

  • Anarita Karimi Njeru Vs Republic
    (1976-1980) KLR 127
Jurisdiction invoked
Articles 20, 21, 22 and 258 of the Constitution of the Republic of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nebange Limited v Attorney General & 4 others [2018] KEELC 2559 (KLR)", Case Analysis (2018). ELC No. 198 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2559/eng@2018-06-28

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