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ELCDismissedELC Case No. 663 of 2013 (formerly Misc. Civil Application No. 104 of 2011)· [2019] KEELC 266 (KLR)

Samow Edin Osman v Minister Office of the President Provincial Administration & Internal Security & 5 others [2019] KEELC 266 (KLR)

Environment and Land Court
13 December 2019
KBK. BOR
2,229 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Nairobi court allowed demolitions near Moi Airbase to proceed, ruling that national security outweighs a property owner's investment, with money damages as the remedy.

What this practically means

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Executive summary

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The ex parte Applicant, registered owner of land in Eastleigh, Nairobi (L.R. Nos. 36/111/109, 36/111/110 and 36/111/218), sought judicial review orders of certiorari to quash the Respondents' decision to demolish buildings within 12 metres of the Moi Airbase boundary and buildings within 30 metres exceeding two floors, and prohibition against demolition of buildings beyond 30 metres. He asserted that his multi-storey developments, including a hotel and a bank-occupied tower valued at over Kshs 1.9 billion, had been constructed with City Council of Nairobi approval and that the threatened demolition breached Article 40(3) of the Constitution and was undertaken without notice. The Respondents, through replying affidavits of Major Vincent Perra and Major Apolo Aloka of the Kenya Air Force, justified the demolition on grounds of encroachment on gazetted protected airbase land and aviation safety: buildings near the runway offered a non-restricted view of the base, posed risks of missile attack and aircraft accidents, and contravened ICAO obstacle limitation standards. After hearing submissions, the court held that the uncontroverted national security evidence established that the decision was not irrational, oppressive or illegal, and that any loss to the Applicant was compensable in damages. The application dated 16/12/2011 was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the Respondents' decision to demolish buildings near Moi Airbase was irrational, oppressive or illegal

Holding

The decision was not irrational, oppressive or illegal, being justified by national security and aviation safety considerations

Reasoning

The Respondents' deponents explained that high-rise buildings near the runway create a non-restricted view of the base, enable espionage and missile attacks, and contravene ICAO obstacle limitation standards and the gazetted protected area status of the airbase. Their affidavits were uncontroverted. Weighing these risks against the Applicant's property interests, the court found no ground of judicial review established.

p. 3
02

Whether the Applicant should be granted judicial review remedies

Holding

The court declined to exercise its discretion in favour of the Applicant

Reasoning

Judicial review remedies are discretionary. Even where administrative action is impugned, the court may withhold relief where public interest considerations, here airbase security and flight safety, weigh against it. The Applicant's loss, if any, could be adequately compensated in damages rather than by quashing or prohibiting the demolition.

p. 3

Legal principles established

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  • Where national security considerations supported by uncontroverted evidence are in issue, the court will not find an administrative decision to demolish buildings near a military airbase to be irrational, oppressive or illegal
  • Loss suffered from demolition pursuant to a lawful administrative decision is compensable in damages

Court orders

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  1. 1.The court declines to grant the orders sought by the Applicant in the application dated 16/12/2011
  2. 2.Each party will bear its own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 40(3)
  • Physical Planning ActSections 33(1)(a), 36, 41, 52
  • Protected Areas ActSection III
  • Civil Aviation Act
  • Kenya Airport Authority Act
Jurisdiction invoked
Original judicial review jurisdiction of the High Court (leave granted on 30/11/2011), matter transferred to the Environment and Land Court as a land dispute

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, "Samow Edin Osman v Minister Office of the President Provincial Administration & Internal Security & 5 others [2019] KEELC 266 (KLR)", Case Analysis (2019). ELC Case No. 663 of 2013 (formerly Misc. Civil Application No. 104 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/266/eng@2019-12-13

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