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ELCDismissedNotice of Motion dated 18th July, 2023 (petition number not stated in judgment)· [2024] KEELC 3996 (KLR)
Skyship Company Limited & 3 others v Kenya Civil Aviation Authority; National Environment Management Authority & 2 others (Interested Parties) (Environment & Land Petition E001 of 2023) [2024] KEELC 3996 (KLR)
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·~23 min to read original · ~4 min briefThe bottom line
#The Environment and Land Court dismissed a bid to suspend a rival balloon operator's licence because the licence expired before the court could rule, making any order pointless.
What this practically means
#Executive summary
#This interlocutory ruling by the Environment and Land Court (Mbogo C.G., J) determined a Notice of Motion dated 18th July, 2023 in which petitioners, balloon operators in the Maasai Mara, sought conservatory orders staying the respondent's (Kenya Civil Aviation Authority) decision granting the 3rd interested party a one-year Air Service License gazetted on 22nd May, 2023. The petitioners alleged violations of Articles 10, 42, 47 and 69 of the Constitution, contending that the respondent disregarded the Maasai Mara National Reserve Management Plan 2023-2032, ignored directives to scale down balloon operations around Pose Plains, and granted the license on the strength of a purported county approval issued to an entity (Ishara Air Balloon) distinct from and predating the incorporated 3rd interested party. The respondent maintained due process was followed, that the petitioners sought monopoly contrary to the Competition Act, and that the 3rd interested party had not commenced operations. The 2nd interested party (Narok County Government) supported the application, citing a moratorium pending the Management Plan. The 3rd interested party argued statutory remedies had not been exhausted and that the petitioners were forum shopping, having filed an appeal at the National Civil Aviation Administrative Tribunal. Applying Gatirau Peter Munya, CREAW and Board of Management of Uhuru Secondary School, the court noted the respondent appeared not to have considered the Management Plan, but held that the one-year license lapsed on 17th May, 2024 before determination, leaving nothing to stay. The application was dismissed with each party bearing its own costs; the substantive petition remains for hearing.
Key legal issues
#01
Whether conservatory orders should issue staying the grant of the Air Service License to the 3rd interested party pending the main petition
Holding
The application was dismissed because the one-year license had lapsed by effluxion of time, leaving nothing to stay
Reasoning
The court restated the settled principles for conservatory orders from Gatirau Peter Munya, CREAW and Board of Management of Uhuru Secondary School. Although it observed that the respondent appeared to have failed to consider the Maasai Mara National Reserve Management Plan, the license granted on 22nd May, 2023 for one year lapsed on 17th May, 2024, before determination. Issuing orders in respect of a lapsed license would be futile; the substantive question of legality of the grant was left to the petition.
p. 10
Legal principles established
#- A party seeking conservatory orders must show that his or her rights are under threat of violation, are being violated or will be violated, and that the violation is likely to continue unless the order is granted
- Conservatory orders are public-law orders granted on the inherent merit of a case, bearing in mind public interest and constitutional values, not private-law considerations of irreparable harm
- The purpose of conservatory orders is to maintain the status quo pending the hearing of the main petition without going into its merits
- A court will not issue conservatory orders where the subject matter has been overtaken by events and there is nothing to stay
Court orders
#- 1.The notice of motion dated 18th July, 2023 is dismissed
- 2.Parties to bear their own costs
- Jurisdiction invoked
- Articles 22(2)(c) and 23(3)(c) of the Constitution as read with Article 165 and Rule 23 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Skyship Company Limited & 3 others v Kenya Civil Aviation Authority; National Environment Management Authority & 2 others (Interested Parties) (Environment & Land Petition E001 of 2023) [2024] KEELC 3996 (KLR)", Case Analysis (2024). Notice of Motion dated 18th July, 2023 (petition number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3996/eng@2024-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.