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ELCDismissedELC Judicial Review Case No. 67 of 2018· [2021] KEELC 4357 (KLR)

Republic v Kenya Airports Authority Ex Parte Ganshyam Deshabai Patel & another [2021] KEELC 4357 (KLR)

Environment and Land Court
15 February 2021
KBK. Bor
3,165 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court declined to overturn KAA's refusal of building consent, confirming judicial review challenges process, not a decision's merits.

What this practically means

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Executive summary

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The Ex Parte Applicants, who held an 87-year lease dated 19/2/2009 over a portion of L.R. No. 21919 at JKIA measuring 409,028 square feet, sought certiorari to quash the Kenya Airports Authority's letter dated 5/4/2018 refusing consent to construct a perimeter wall, and mandamus compelling the grant of consent under the lease. They contended that the refusal was unreasonable, based on ulterior and irrelevant considerations, and breached their legitimate expectations and the Fair Administrative Actions Act. The Respondent countered that the lease was a Build-Operate-and-Transfer concession whose terms, including the 87-year period, contravened the Public Private Partnership Act and its Concession Policy Guidelines limiting BOT terms to 30 years; it cited public interest concerns, its reversionary interest, the pending transfer of L.R. No. 9042/633, and a National Land Commission recommendation to revoke long-term grants. Following an earlier judgment in ELC Case No. 728 of 2012 directing the Applicants to submit a complete application, which the Respondent considered, the court held that the Applicants were challenging the merits of the decision rather than the decision-making process. The lease gave the Respondent discretion to withhold consent provided it was not withheld unreasonably, and the Applicants failed to show unreasonableness, irrationality or reliance on ulterior considerations. The application was dismissed with each party bearing its own costs.

Key legal issues

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01

Whether the Respondent's refusal to consent to construction of a perimeter wall was amenable to quashing by certiorari and enforceable by mandamus

Holding

The refusal was a lawful exercise of the Respondent's discretion under the lease and the Kenya Airports Authority Act, based on the Public Private Partnership Act's 30-year BOT limit and public interest; the orders sought were declined

Reasoning

The court held that judicial review examines process, not merits. The Applicants did not allege that the Respondent acted in excess of jurisdiction or through a flawed process. The lease conferred a discretion to withhold consent so long as it was not withheld unreasonably, and the Applicants failed to demonstrate unreasonableness, irrationality, or reliance on ulterior or irrelevant considerations. The Respondent had advanced plausible public-interest and statutory grounds grounded in the Public Private Partnership Act and the National Land Commission's recommendations.

p. 3

Legal principles established

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  • Judicial review is concerned with the decision-making process, not the merits of the decision
  • Where a lease gives an authority discretion to withhold consent provided it is not withheld unreasonably, a court will not interfere unless unreasonableness or irrelevant considerations are demonstrated

Court orders

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  1. 1.The orders of certiorari and mandamus sought in the application are declined
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Public Private Partnership ActSection 2; Second Schedule
  • Fair Administrative Actions ActSections 7 and 11
  • Kenya Airports Authority ActSections 6 and 12(3)(f)
  • Constitution of KenyaArticle 66

Cases cited (6)

  • R v Secretary of State for Education and Science, Ex Parte Avon County Council
    [1991] 1 All ER 282
  • Republic v Joint Administrative Review Board, Leeds Equipment and Systems Limited, Ex Parte Kenya Veterinary Vaccines Production Institute
    [2018] eKLR
  • Republic v Public Procurement Administrative Review Board & 3 Others, Ex Parte Olive Communication PVT Limited
    [2014] eKLR
  • Republic v Public Procurement Administrative Review Boards and 3 others, Ex Parte Olive Telecommunication PVT Limited
    [2014] eKLR
  • Kenya Civil Aviation Authority and Another v Timothy Nduthi Mutungi
    [2017] eKLR
  • Republic v Public Procurement Administrative Review Board and 2 others, Ex Parte Rongo University
    [2018] eKLR
Jurisdiction invoked
Judicial review jurisdiction under Sections 7 and 11 of the Fair Administrative Actions Act (orders of certiorari and mandamus)

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, "Republic v Kenya Airports Authority Ex Parte Ganshyam Deshabai Patel & another [2021] KEELC 4357 (KLR)", Case Analysis (2021). ELC Judicial Review Case No. 67 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4357/eng@2021-02-15

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