Ams Properties Limited v Kenya Airports Authority [2019] KEELC 2832 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a landowner's compensation claim against Kenya Airports Authority because the law required arbitration first and the claim came too late.
What this practically means
#Executive summary
#Key legal issues
#Whether the Preliminary Objection met the Mukisa Biscuit threshold
Limitation and jurisdiction are pure points of law properly raised; the notice issue required ascertainment of facts but the objection could be entertained overall
Applying the Mukisa Biscuit definition, the court held that limitation and jurisdiction are pure points of law arguable on pleaded facts. Whether notice was issued to the managing director would require factual ascertainment and so might not qualify strictly, but the objection as a whole contained grounds capable of being entertained.
Whether the court had jurisdiction over the compensation claim
Court lacked jurisdiction; Section 33(1) KAA Act requires compensation disputes to be agreed or determined by a single arbitrator appointed by the Chief Justice
The Plaintiff's claim was for compensation for damage suffered from the Authority's exercise of its powers. Section 33(1) ousts court suits and provides for agreement or arbitration. Negotiations failed, so the dispute was to go to a single arbitrator appointed by the Chief Justice, not to court. Following World Duty Free and the Supreme Court's jurisdiction pronouncements, the suit was for striking out.
Whether the suit was statute barred under Section 34(b) KAA Act
Suit was statute barred; time ran from the rejection letters of 23 November 2004 and 7 January 2005, and suit filed on 18 August 2017 was far outside twelve months
Section 34(b) requires actions against the Authority within twelve months of the act complained of, or six months after cessation of continuing injury. The denial of approval was a single act in 2004/2005, not a continuing injury as in the Kulwant Singh Chadha runway trespass case. Even assuming negotiations tolled time, last correspondence was February 2015 and suit filed August 2017.
Whether notice under Section 34(a) KAA Act was issued
Notice was duly issued on 23 February 2016, stamped by the Defendant, and complied with Section 34(a); that ground of the objection failed
The replying affidavit of Janakan Murugesan annexed a Section 34(a) notice forwarded by letter dated 23 February 2016 and stamped by the Defendant on 25 February 2016. The notice contained all required particulars, so the prematurity ground lacked merit.
Legal principles established
#- Where a statute provides a specific mechanism for resolving disputes (here arbitration under Section 33(1) KAA Act), that procedure must be followed and a suit filed in court instead is liable to be struck out
- Denial of construction approval is not a continuing injury for limitation purposes; time runs from the date of rejection
Court orders
#- 1.Preliminary Objection upheld on the grounds of lack of jurisdiction and limitation
- 2.Plaintiff's suit struck out
- 3.Costs of the suit awarded to the Defendant
- Jurisdiction invoked
- Original civil jurisdiction; suit challenging refusal of construction approval, with jurisdiction constrained by Sections 33 and 34 of the Kenya Airports Authority Act (Cap 3)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ams Properties Limited v Kenya Airports Authority [2019] KEELC 2832 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2832/eng@2019-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.