NLC wants court to dismiss airports authority's claim on Mombasa land

The entrance to Moi International Airport in Mombasa. FILE PHOTO | NMG 

By PHILIP MUYANGA

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Summary

• Airports authority claims ownership of land whose title NLC already upheld in favour of a gas company.
• KAA claims the land is part of Moi International Airport, Mombasa.
• KAA claims NLC has purported to exercise jurisdiction to hear and determine a dispute on land ownership between itself (KAA) and East African Gas Company Ltd.

The National Land Commission wants the court to dismiss Kenya Airports Authority (KAA) suit against the commission's approval of land titles in favour of a gas company.

KAA claims the land is part of Moi International Airport, Mombasa, and is seeking an order quashing the NLC's decision to approve the titles.

NLC's vice-chair Abigail Mbagaya says the decision to review the legality of the grants over the parcels of land was made following a complaint by the county government, which alleged they were issued unlawfully.

Ms Mbagaya further says the complaint was made while NLC was in the process of acquiring portions of the parcels of land for the purpose of construction of the Standard Gauge Railway.

She further says that before commencing the review, NLC published notices informing the public of its intention to review the legality of the grants.

“Despite sufficient notice of intention to review the legality of the suit properties being issued by the respondent, KAA, Ethics and Anti-Corruption Commission and the Director of Public Prosecutions neither made appearance at the hearing nor did they submit any claim in relation to the parcels of land,” said Ms Mbagaya.

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State their claims

In her affidavit, Ms Mbagaya further says that if KAA, EACC and DPP had interest in the review proceedings, they were under prerogative to appear before NLC, state their claim and participate in the proceedings.

Ms Mbagaya also stated that NLC, having heard submissions of all parties who appeared before it and reviewed all materials, it made a finding upholding the legality of the grants over the parcels of land.

Ms Mbagaya says that two years after NLC made its determination, the DPP requested the revocation of its decision on the basis that a criminal case relating to the parcels of land was pending before court.

“No other grounds or at the very least documents or information that would aid alter the respondent (NLC) decision were advanced,” said Ms Mbagaya.

She further says that NLC, in a letter to the DPP, Transport ministry, EACC, KAA and the Attorney General sought for documents to support the claim that the parcels of land were illegally hived off the authority’s land to enable it look at the matter afresh but there was no response.

Ms Mbagaya says the findings of the commission were based on the material facts and evidence placed before it by all relevant parties who appeared before it on the appointed dates.

Land dispute

KAA claims that NLC has purported to exercise jurisdiction to hear and determine a dispute on land ownership between itself (KAA) and East African Gas Company Ltd.

It also wants an order issued restraining NLC or its agents from interfering with its ownership, possession and occupation of the land.

In its application at the Environment and Land Court (ELC) in Mombasa, KAA says NLC decision to uphold the tile was communicated via a Gazette Notice No 6862 dated July 17.

According to KAA, NLC purported to uphold EAGCL illegally acquired titles over 12 parcels of land hived off Moi International Airport land that is still in its (KAA) use and where the issue of illegal excision of the land is subject of a court case in Nairobi.

Through lawyer Augustus Wafula, KAA argues that ELC is the only institution with jurisdiction to hear and determine disputes over land.

“The action by the respondent (NLC) to purport to uphold EAGCL titles when there is an active criminal proceedings of the acquisition amounts to abuse of office,” the application by KAA reads in part.

KAA has termed NLC's decision as unreasonable in so far as it considered issues that ought not to be considered.

The authority further argues in its application that the commission acted in excess of its jurisdiction by purporting to hear and determine the disputes between itself (KAA) and EAGCL over the land.

“The respondent denied the applicant a reasonable opportunity to state its case which was already in the public domain considering that there were criminal proceedings instituted by the office of the DPP over the same land,” says KAA.

Ulterior motive

KAA also argues that NLC decision was an ulterior motive calculated to prejudice its (KAA) legal rights and is therefore null and void.

The authority further says that NLC decision was made in bad faith and the decision was unreasonable and not proportionated to its rights.

According to KAA, the orders they are seeking ought to be issued for purposes of ensuring the spirit of the constitution is implemented and the rule of law observed.

Apart from EAGCL, KAA, EACC and the DPP have been named as interested parties in the suit.

The case will be heard on October 9.