The Kenya Airports Authority has got a reprieve after a court dismissed a petition by Ukunda residents seeking a declaration that the acquisition of land where Diani Airport (formerly Ukunda Airstrip) is located was illegal.
Justice Addraya Dena ruled there was no evidence before the court showing KAA was using the land unlawfully.
“Based on the pleadings and evidence, this court is unable to make a finding that KAA obtained title to the land fraudulently,” said Justice Dena of the Environment and Land Court in Kwale.
The judge added that the court found no reason to impeach KAA’s title with respect to the parcel of land.
Justice Dena said the residents had to demonstrate that KAA’s title had been acquired illegally, unprocedurally or through a corrupt scheme.
“Let me state that it is trite that fraud has to be specifically pleaded, particularised and proved at a slightly higher standard of proof than that of a balance of probabilities. No fraud has been pleaded, and no particulars have been given,” said Justice Dena.
She said that based on a report by the Ministry of Lands and Physical Planning District Surveyor, Kwale, the court was in agreement with KAA’s lawyer Augustus Wafula’s submission that the airport land was formerly government land.
“I have no reasons to doubt the veracity of this report having been presented by the government as the keeper of the master record of all land. I also do not see the need for conducting another survey, it would not change much,” said Justice Dena.
In their petition, the residents told the court that the land was obtained without their consent, devoid of compensation and that it was their ancestral land.
They told the court that there was a need for a proper survey to be conducted to establish the area occupied and encroached by KAA for purposes of compensation as their earlier efforts to undertake the process were frustrated by the respondents.
The petitioners claimed that sometime in 1958 their forefathers welcomed a European man called Trench French, allocated him two acres of the land for landing his aircraft and that the land was never sold to him.
KAA said that the airstrip is a sensitive national asset that serves local and international travellers going to the South Coast and it requires it to be secured to ensure the safety of flights and passengers.