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The Nairobian

Appeal court annuls ruling on Wilson airport land

Counties

By Fred Makana and Faith Karanja | Jul 13, 2016

NAIROBI: The Court of Appeal has overturned a High Court decision ordering Kenya Airports Authority (KAA) to compensate 15,323 residents who were evicted from an area near Wilson Airport.

The dispute over the land measuring 163.67 hectares pits KAA, the Commissioner for Lands and the Attorney General against Mitu-Bell Welfare Society and Mitumba village residents. In their ruling yesterday, justices Erastus Githinji, Wanjiru Karanja and Otieno Odek set aside the judgement by the High Court in 2013.

“The trial court erred in law and fact when it failed to properly evaluate the pleadings and evidence on record and to take into account critical aspects of evidence relating to the flight path to Wilson Airport. The court failed to evaluate the security and safety of the flight path as compared to the structures in Mitumba village. The court also failed to evaluate the issue of unregulated garbage attracting birds along Wilson Airport’s flight path,” the judges ruled.

High Court judge Mumbi Ngugi had on April 12, 2013, directed the Government to resettle 15,325 residents whose shanties around Wilson Airport were demolished in 2011.

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She directed the Attorney General, KAA and the Commissioner for Lands, who were respondents in the petition challenging the eviction, to provide a policy on the resettlement programme within 60 days.

KAA successfully lodged the appeal and urged the court to consider justifiability and enforceability of socio-economic rights under the 2010 Constitution.

APPEAL ALLOWED

“The totality of the foregoing errors leads us to find that this appeal has merit and is hereby allowed,” the judges ruled.

The appeal was also was also meant to address the tension between the right to housing as a socio-economic right and the right to private property.

KAA, through lawyers Waweru Gatonye and Eric Mutua, told the appellate court that the right to property did not extend to property that had been unlawfully acquired.

KAA also stated that Mitu-Bell and dwellers of Mitumba village had no proprietary right or interest in or over the suit property.

Justices Githinji, Karanja and Odek ruled that subject to approvals and limitations authorised by law, the security and safety of flight paths was not negotiable.

KAA had appealed against a decision by the High Court on grounds that it was the registered proprietor of all the land in question.

According to KAA, informal settlements and dwellings constructed by Mitu-Bell and members of Mitumba village were on the flight path to Wilson Airport and posed a security risk.

“International standards demand that no settlement should be allowed on a flight path without approval by the Municipal Civil Aviation Authority and any settlement that leads to unregulated garbage disposal hence attracting birds along a flight path is prohibited,” KAA stated in the court documents.