An investor has lost a long-running dispute against Kenya Civil Aviation Authority (KCAA) for compensation of close to Sh1 billion after he was stopped from constructing houses near Wilson Airport in 2008.
Mr Patrick Thoithi Kanyuira wanted to be paid Sh992 million on claims of loss of earning after he was ordered to stop further construction of 24 maisonettes near the busy airport.
The Supreme Court last week ruled that the investor is to blame for failing to heed the regulator’s warning.
The top court judges further noted Mr Kanyuira was offered an alternative land by the regulator and cannot be faulted for stopping the completion of the houses.
A bench presided by Deputy Chief Justice Philomena Mwilu said Mr Kanyuira ought to have obtained approval from KCAA as the custodian of all airport lands and the body mandated by statute to ascertain whether the development near the airport was likely to interfere with the operation of aircraft.
The judges said the approval from the then city council of Nairobi could not substitute or supersede that of KCAA.
“The cessation order only sought to restrict the activities that, in the view of the respondent (KCAA) would compromise aviation safety and security,” the judges said.
Evidence presented to the court was that the land lies within the approach funnel to Wilson Airport’s main runway and the development would pose a threat to aviation safety and security.
The approval, he sought from KCAA was rejected and the regulator issued a cessation order after the developer went ahead with the construction.
Mr Kanyuira sued the regulator in 2009 stating that the cessation order was the same as compulsory acquisition.
He submitted that he borrowed a loan of Sh66.7 million to construct the houses on the 1.1-acre parcel.
KCAA opposed the case saying the directive to remove structures that it deems hazardous to aircraft operations was legitimate and lawful and meant to prevent accidents.
The regulator said the cessation order cannot be equated to compulsory acquisition and the directive was made in good faith and for the public good.
The Supreme Court said Mr Kanyuira can still go back to the drawing board and retrace his steps by engaging the regulator on how best they can resolve the dispute without resorting to demolition.