Kenya Airports Auhtority v Eliezar Kamau Thong’o & 2 others [2018] KEELC 4759 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Mode of commencing eviction proceedings after dismissal of a petition challenging eviction notices
The application was not defective; a plaint was unnecessary because the issues had already been determined in the dismissed petition.
The Respondents' petition challenging the 2014 vacation notices was heard and dismissed on its merits. Although dismissal did not yield a positive decree, it rendered the notices effective. Filing a plaint on the same issues would offend res judicata; the applicant, having filed no cross-petition, properly moved the court by motion for eviction orders pursuant to issues already determined.
Right to fair hearing where no defence/plaint stage is available
The Respondents were afforded a fair hearing through their replying affidavit, preliminary objection and written submissions.
The court held that the right to be heard is not confined to filing a defence or giving oral evidence; it extends to any opportunity to present one's case. The Respondents had filed documents and submissions opposing the motion, so no prejudice arose from determination of the application without a formal defence.
Alleged discriminatory eviction contrary to articles 27, 28 & 47
No discrimination established; the Respondents' occupation was under TOLs conditioned on surrender on notice, and others occupying the area were not shown to be on the same terms.
The 1993 temporary occupation licence was granted individually on condition that the occupier surrender the land when requested, on one month's notice and without compensation. Having accepted those terms, the Respondents could not claim discrimination. They also failed to show that Doshi Iron Mongers, Multiple Hauliers and the Church occupied the premises on the same terms, and the discrimination issue was already dealt with in the petition.
Legal principles established
#- Where a petition challenging eviction notices has been determined on its merits and dismissed, the notices become effective and a subsequent suit for eviction on the same issues would be res judicata; eviction may be pursued by motion rather than plaint.
- A party who accepts a temporary occupation licence subject to a condition to surrender the land on notice cannot claim discrimination when required to surrender it.
Court orders
#- 1.Order granted to the Applicant to evict the Respondents, their agents, employees or assigns from the restricted area along the landing lights of Moi International Airport Mombasa
- 2.OCS Moi International Airport Mombasa directed to enforce the order issued
- 3.Each party to bear their own costs of the application
- Jurisdiction invoked
- Sections 3 & 13 of the Environment and Land Court Act, sections 1A, 1B & 3A of the Civil Procedure Act and Order 51 rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Airports Auhtority v Eliezar Kamau Thong’o & 2 others [2018] KEELC 4759 (KLR)", Case Analysis (2018). Notice of motion dated 12th October 2016 (ELC, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4759/eng@2018-01-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.