Skyship Company Limited & 3 others v Kenya Civil Aviation Authority; National Environment Management Authority & 2 others (Interested Parties) (Environment and Land Constitutional Petition E001 of 2023) [2024] KEELC 6523 (KLR)
The bottom line
#Kenya's Environment and Land Court dismissed a challenge to a hot air balloon licence, ruling that disputes over aviation and environmental licences must first go to specialist tribunals.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction over challenges to the grant of an Air Service Licence
The court lacks jurisdiction; appeals against the respondent's licensing decisions lie to the National Civil Aviation Administrative Review Tribunal under Section 69 of the Civil Aviation Act, and the court could only assume appellate jurisdiction under Section 77
Section 7(1)(a) of the Civil Aviation Act vests licensing of air services in the Authority, and Section 69(a) confers on the Tribunal jurisdiction to hear complaints and appeals arising from refusals or grants of licences. Since the petition is essentially a challenge to the grant of the licence, the correct forum is the Tribunal, and this court would only assume appellate jurisdiction under Section 77 once properly moved.
Challenge to the EIA licence
Disputes concerning issuance of an EIA licence must first go to the National Environment Tribunal under Section 129 of EMCA; the EIA licence issued to the 3rd interested party was not challenged
The 3rd interested party obtained EIA licence No NEMA/EIA/PSL/18345 on 8th April 2022, which was never appealed. Section 129(1)(a) of EMCA requires any person aggrieved by the grant of a licence to appeal to the Tribunal within sixty days. The petitioners never lodged such an appeal, so the court would not entertain the environmental grievances founded on the EIA licence.
Violation of Article 35 (access to information)
No violation established; the respondent supplied written reasons for the licence by letters dated 14th July 2023 dispatched to the petitioners
The petitioners requested reasons for the grant of the licence. The respondent's documents show that letters dated 14th July 2023 supplying the reasons were dispatched via post and email (annexure EA-8(d)). Article 35 entitles citizens to access state-held information without delay, but on the evidence the petitioners failed to sufficiently prove that access was denied.
Legal principles established
#- Where a statute establishes a specialised tribunal to hear disputes arising from licensing decisions of a regulator, a party aggrieved by such a decision must first resort to that tribunal before approaching the High Court
- A citizen who requests information held by the state is entitled to its prompt availing, but the burden lies on the person alleging violation to prove denial of access
Court orders
#- 1.The petition dated 18th July, 2023 is dismissed
- 2.Each party to bear its own costs
- Jurisdiction invoked
- Constitutional petition for enforcement of Bill of Rights (Articles 42, 69, 70, 35, 47) and judicial review relief; jurisdiction considered under the Civil Aviation Act, Cap 394 and EMCA, Cap 387
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 and Land Constitutional Petition E001 of 2023) [2024] KEELC 6523 (KLR)", Case Analysis (2024). Petition dated 18th July, 2023 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6523/eng@2024-10-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.