Wilken Telecommunicatios Limited & another v Kenya Airports Authority
The bottom line
#The Environment and Land Court ruled that Kenya Airports Authority cannot charge access fees on a public road serving private properties near Wilson Airport.
What this practically means
#Executive summary
#Key legal issues
#Status of the access road
The road on which the barrier was erected is a public road open to the general public, and the defendant failed to controvert that evidence
The plaintiffs testified that the road was a public access road used by the public since before the barrier was erected. The defendant led no evidence to confirm that it maintains the road, and DW4 admitted the 1928 map did not reflect the current situation. On a balance of probabilities the road was held to be public.
Authority to levy access charges
The defendant had no authority to charge access fees on a public road; its statutory mandate does not extend to private land
Section 12(4) of the Kenya Airports Authority Act does not extend the defendant's mandate to private land such as the plaintiffs' properties. Since the road is public and the properties are private, levying charges on persons accessing them via the public road was ultra vires.
Entitlement to injunctions
Plaintiffs proved their case and were granted permanent injunctions against levying charges and interference with access, but not the injunction against erecting the barrier
The court found the case proved on a balance of probabilities and entitled the plaintiffs to the orders sought, except the prayer to restrain erection of the barrier, which was overtaken by events since the barrier was already erected and operational.
Legal principles established
#- Maintenance of a road by a party does not convert a public road into a private road
- The Kenya Airports Authority's statutory mandate under section 12(4) does not extend to private land
- Private land owners are entitled to unfettered access to their properties
Court orders
#- 1.Permanent injunction restraining the Defendant from levying any access charges on anybody intending to access land parcel LR.209/11292 (Wilken House), be they employees or guests, using the public road adjacent to the road leading to Wilson Airport
- 2.Permanent injunction restraining the Defendant from interfering with the ingress or egress to LR. No. 209/11292 (Wilken House) by the 1st plaintiff's employees, visitors and any other members of the public
- 3.Permanent injunction restraining the Defendant from interfering with the 2nd plaintiff's, its tenants' and visitors' free access, ingress or egress to Antipest Kenya House upon LR. No. 209/11966
- 4.Each party to bear own costs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over land and access disputes (ELC Case 987 & 1140 of 2016, consolidated)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wilken Telecommunicatios Limited & another v Kenya Airports Authority", Case Analysis (2023). Environment & Land Case 987 & 1140 of 2016 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18043/eng@2023-06-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.