The Kenya Airports Authority (KAA) has been given a reprieve after the Court of Appeal stayed the execution of a judgment ordering it to pay a businessman Sh291 million in compensation for illegally acquiring his land adjacent to Moi International Airport in Mombasa.
Judges Agnes Murgor, Kibaya Laibuta and George Odunga of the Court of Appeal ruled that KAA had met the threshold requirements for the grant of the stay orders (suspension of execution) of the Environment and Land Court (ELC) judgment.
The appellate judges ruled that the amount of money ordered was by no means a paltry sum and that Mr Osman Kahia, the owner of the land, had failed to provide evidence that he would be able to repay the money if KAA's appeal was successful.
“In the absence of any reassurance as to the first respondent’s (Mr Kahia’s) financial capability, particularly in light of the amount involved, we consider it prudent to grant stay of execution of the judgment so as to safeguard the substratum of the appeal,” ruled the Court of Appeal.
In its application, KAA had sought a stay of execution of the judgment pending the hearing and final determination of its intended appeal against the ELC's decision.
The authority told the court that it had a meritorious appeal with a strong chance of success, which would be rendered moot if the orders sought were not granted.
It also argued that it would suffer substantial loss because the amount of the decree was colossal and, if paid to Mr Kahia, there was no certainty that he would be able to repay the money if the appeal was successful.
The KAA also told the court that the payment, which it described as grossly excessive, could result in the loss of public funds, which is not in the interest of the public.
It also said that it is a public institution that plays a critical role in the management of the country's airports and that enforcement against it will disrupt air traffic control and movement throughout the country and beyond.
KAA said it was also important in the public interest that the orders be granted pending the hearing and determination of the appeal.
In his response, Mr Kahia argued that there was no valid notice of appeal to warrant the grant of the stay sought and that KAA's application was incompetent, wrong in law and should be dismissed.
He further contended that it was undisputed that he was the registered owner of the land adjacent to Moi International Airport and that KAA had installed pipelines on it.
As a consequence, he said that KAA was in constructive occupation and use of the land and that the appeal would not be rendered nugatory as no irreparable loss would be occasioned to it because, upon payment of compensation to him, his rights to the land shall be extinguished.
Mr Kahia also told the court that since KAA's concern was the refund of the money, he urged the court to make the orders on the condition that the money be deposited in a joint interest-earning account in the names of the parties' lawyers at Kenya Commercial Bank within a specified period.
On its part, the National Land Commission supported KAA's application, saying the appeal was arguable and would be moot because Mr Kahia would not be able to refund the amount if paid and the appeal was successful.
At the ELC, Mr Kahia had sought orders against KAA and NLC for alleged violation and breach of his fundamental rights as enshrined in the Constitution.
Mr Kahia had sought a declaration that the actions of KAA and NLC in causing and permitting the excavation of trenches and the laying of pipelines on the land without his notice, consent or payment of compensation violated his rights.
He also sought an order for compensation and, in the alternative, an order requiring KAA to excavate and remove the installed pipelines from the land within 14 days.
KAA opposed the application and raised a preliminary objection to the application, arguing that the application was incompetent and fatally flawed as it was in direct contravention of the KAA Act.
Justice Lucas Naikuni overruled KAA's preliminary objection, granted the petition and ruled in favour of Mr Kahia.
