Brief background;
1. The Applicant's issues in this suit are pegged on the two decisions of the Respondent contained in the Notices dated 15th March 2023 and 22nd March 2023 respectively.
2. The Respondent’s decision dated 15th March 2023 takes the form of various letters addressed to the individual members of the Applicant and titled Notification of Award. The letters set out the terms and conditions prescribed by the Respondent including charges relating to licence for use of the premises, concessions and other facilities provided by the Respondent to members of the Applicant.
3. The Respondent’s other decision is dated 22nd March 2023.It is a notice to all Airport Operators and all Government Agencies at Wilson Airport on the Issuance of Landslide Access Permits. The effect of the decision is to the effect that operators with staff working at the Landslide do acquire Landslide passes at a prescribed fee from the Respondent.
4. The gravamen of the Applicant’s complaint is that the twin impugned decisions are designed to surreptitiously and cunningly introduce exorbitant, unlawful, unprocedural and unjustified fees, charges and levies for use of the premises, concessions and other facilities provided by the Respondent to the members of the Applicant to the prejudice of the members of the Applicant. The Applicant takes the position that the Respondent’s decisions are wanton, egregious and marred with Procedural Improprieties, Unlawfulness and Ultra Vires.
5. This has precipitated the filing of the Notice of Motion application dated 25th January 2024 that forms the subject of this court’s decision wherein the applicant seeks the following orders:
1) CERTIORARI to remove into this Honourable Court for the purposes of quashing the Respondent's decision dated 15th March, 2023 and 22rd March, 2023.
2) PROHIBITION restraining the Respondent by itself, its agents or persons acting on its behalf from arbitrarily imposing and collecting high license fees for use of the premises, concessions, and other facilities provided by the Respondent to the Members of the Applicant.
3) MANDAMUS compelling and directing the Respondent to comply with the mandatory statutory requirements of Sections 8(3) and 12(3)(e) of the Kenya Airports Authority Act, Cap 295 of the Laws of Kenya and Regulation25(2)(b)(xx) of the Civil Aviation (Security) Regulations, 2020.
4) DECLARATION to the effect that the Notices issued on the 15th March, 2023 and 22nd March, 2023 to the Applicant's Members, were not done in conformity with the Kenya Airports Authority Act as well as the laid down Procedures and are a breach of the Rights of the Applicant's Members to fair administrative action.
5) AN ORDER that costs of this Application be paid for by the Respondent.
The Applicants Case;
6. It is the Applicant’s case that the Respondent entered into various agreements with several individual members of the Applicant authorizing the said members to undertake various business activities at the Respondent's premises situated outside the Airside and the Landside at Wilson International Airport.
7. It is argued that the Applicant's members are duly licensed by the Kenya Airports Authority (hereafter referred to as KAA) to gain fully carry out their business on the licensed space.
8. On 15th March, 2023 and 22nd March, 2023, the Respondent unilaterally issued two notices to the Applicant's members purporting to review their licenses by increasing the amounts being levied upon their business premises and purporting to introduce Landslide access permits to the owners of the businesses on the Airport's Landslide without any justifiable reason.
9. The notices referenced "renewal of contract at wilson airport" which were issued on the 15th March, 2023 purported to effect the new changes on the 1st January, 2023, and as such the same sought to act retrospectively instead of retroactively.
10. It is the Applicant’s case that there is no legitimate reason to vary the initial license terms without involving the Applicant's members who are licensed to carry out business on the premises by the Kenya Airports Authority.
11. It argues that on 22nd March, 2023, the Respondent issued a Notice to the Applicant's Members referencing "issuance of landside permits" in which it purported to introduce access permits to Business owners on the Landside of the Wilson Airport.
12. The effect of unfairly charging business owners on the areas not Legally demarcated and classified as Landside of the Airport a Permit fee despite them having already paid rent for their premises and the permit fee was not chargeable under the initial agreement entered into between the Respondent and members of the Applicant.
13. It argues that all persons including employees and visitors to the Applicant's Members premises will be required to process Landside Access permits prior to gain access to their business premises.
14. The grant of the proposed Landside permit is predicated upon grant of other permits such as certificate of good conduct from the Director of Criminal Investigations.
15. This will deter its Members customers from visiting our Members premises most of which are outside the aerodrome.
16. It is concerned that The Respondent did not give the Applicant notice of intention to change the terms of the licenses and introduce passes to the Applicant's member's business.
17. On 5th May, 2023, the Respondent published new rates of charges it had introduced for Landside security permit and other services. The imposed charges are exorbitant and injurious to the members' businesses.
18. According to the Applicant ,the decision was arbitrary,illegal, and unreasonable and the power as purportedly exercised by the Respondent does not exist in law thereby acting Section 12 (3) of the Kenya Airports Authority Act (KAA Act) empowers the Respondents to determine, impose and levy rates, charges, dues/fees or for the grant to any person of a license, permit or certificate, subject to the approval of the Minister.
19. It argues that Section 11(b) of the Kenya Airports Authority Act (KAA Act) empowers the Interested Party to approve any charges made for the services provided by the Authority by way of a Gazette Notice.
20. It is its case further that The Respondent in flagrant breach of the provisions of Section 6 of the Fair Administrative Actions Act neglected, omitted and /or willfully refused to supply any reasons to the Applicant despite request for the same having been made on the 28th March, 2023.
21. It is its case that the Respondent has not evidenced the Minister's approval of the said changes, contrary to Constitutional requirements and the Fair Administrative Act.
22. It is a mandatory requirement of Regulation 25(2)(b) of the Civil Aviation (Security) Regulations, 2020 that the Respondent identifies and designates landside areas to determine which premises fell within such areas designated as landside for purposes of the said Regulations.
23. The applicant is concerned that the Respondent has not evidenced such designation contrary to the above-stated regulations and that in the circumstances the Respondent's actions are marred with irregularities having been carried out without regard to due process and are aimed at disenfranchising the Applicant's members.
24. The abrupt increase of charges relating to licence for use of the premises, concessions, and other facilities provided by the Respondent to the Members of the Applicant which is more than 500% in most cases is arbitrary, unreasonable, harsh, burdensome, and oppressive and an improper exercise of the Respondents mandate as provided under the parent Act and the Constitution and amounts to unfair and unconstitutional imposition of charges.
25. It is strongly persuaded that by rendering its decision of 15th March, 2023 and 22nd March, 2023, the Respondent violated the Legitimate Expectations of the Applicant's Members that before making such arbitral decisions, they would have been consulted as people to be most substantially affected by such a decision.
26. It argues that the Respondent failed to furnish the Applicant with the notices requested for or an explanation for the abrupt changes in the licensing terms despite a Demand Notice being issued upon it.
The Applicant’s Submissions;
27. The Applicant submits that the Kenya Airports Authority Act provides for the powers and functions of the Respondent and for connected purposes and that Section 8(3)(d) of the Act imposes upon the Board of the Respondent the duty to ensure that the Respondent performs its duties in a manner that no particular person or body is given undue preference or subjected to any undue disadvantage.
28. The Applicant’s advances the case that the introduction of exorbitant, unlawful, unprocedural and unjustified fees, charges and levies for use of the premises, concessions and other facilities provided by the Respondent to the members of the Applicant is prejudicial to the members of the Applicant and subjects the said members to undue disadvantage.
29. It submits that Sections 12(3)(e) of the Act gives the Respondent the power to determine, impose and levy rates, charges, dues or fees for any services performed by the Respondent, or for use by any person of facilities provided by the Respondent, or for the grant to any person of a licence permit or certificates subject to the approval of the Minister.
30. It further submits that Section 11(b) of the Act vests the Minister with the powers to approve any alterations in the tariff rates and other charges made for the services provided by the Authority. The Applicant reckons that there was no ministerial approval for the charges, rates and licence fees complained imposed by the Respondent in the impugned twin decisions.
31. Regulation 25(2)(b)(xx) of the Civil (Security) Aviation Regulations 2020 enjoined the Respondent to identify and designate Landside areas. The Applicant submits that the exercise of identification and designation of Landside areas was designed to determine which premises fell within such areas designated as Landslide for the purpose of the said Regulation. The Applicant reckons that premises used by their Members do not fall within the landside area.
32. It submits that Section 6 of the Fair Administrative Actions Act, 2015 enjoins the Respondent to furnish reasons upon request by a person who would be affected by an administrative action. On 28th April 2023, the Applicant requested from the Respondent reasons for its decisions. However, the Respondent in flagrant breach of the legal stipulations neglected, omitted and/or willfully refused to supply any reasons to the Applicant.
33. The Applicant submits that the Respondent’s decisions are wanton, egregious and marred with Procedural improprieties, unlawfulness and ultra vires. It submits that this is a fact that has been admitted in pleadings by the Interested Party. At Paragraph 12 of his Replying Affidavit Sworn on 5th June 2024, MOHAMED DAGHAR, the Principle Secretary, State Depart of Transport in the of Roads and Transport states as follows;
“12. That the initial license issued by KAA were made in accordance with approved rates however the alterations were not made in compliance with the law.”
34. Reliance is placed in the case of Republic v Kenya Revenue Authority Ex-parte Shake Distributors Limited [2012] eKLR, addressed the need for statue creatures to act within the powers granted to the by statute and held thus:-
“It must be noted from the beginning that the Respondent is a public body created by statue. It is therefore expected to perform its functions within the mandate donatedto it by the law. It must act within the cocoon designed for it by Parliament. If it assumes a role not given to it by the lawmakers, then this Court will step in tocorrect it by issuing relevant orders. It must also comply with the rules of natural justice. Failure to do so will see its decisions quashed for procedural impropriety.”
35. The Applicant humbly submits that the Concession Order of 1996 in its present form cannot be construed as conferring Ministerial Approval required under the Act for the decisions herein the subject of this Application.
36. It submits that the Respondent’s Replying Affidavit contain elaborate arguments by the Respondent in which the Respondent contends that it has complied with the requisite Regulations including Regulation 25(2)(b)(xx) of the Civil (Security) Aviation Regulations 2020.
37. At Paragraph 61.6 the Respondent has reproduced definition of Landside Areas’ as per Regulation as;
“Landside Areas” means an area of an airport and buildings on to which the non-traveling public has free access.”
38. The Applicant’s complaint on account of this regulation was that by introducing landside access permits for a fee, the Respondent was surreptitiously and cunningly introducing exorbitant, unlawful, unprocedural and unjustified fees, charges and levies for use of the premises, concessions and other facilities provided by the Respondent to the members of the Applicant to the prejudice of the members of the Applicant.
39. The Applicant has also singled out the Respondent for failure to furnish reasons upon request pursuant to Section 6 of the Fair Administrative Actions Act. The Applicant has produced evidence in form of a letter served upon the Respondent on 28th April 2023.
40. The Respondent has offered no explanation to justify its refusal to comply with the mandatory legal requirement. Section6 (4) of the Act provides that subject to subsection (5), if an administrator fails to furnish the applicant with the reasons for the administrative decision or action, the administrative action or decision shall, in any proceedings for review of such action or decision and in the absence of proof to the contrary, be presumed to have been taken without good reason.
41. It submits that there is enough material for the Honourable Court to find the twin impugned decisions as wanton, egregious and marred with Procedural Improprieties, Unlawfulness and Ultra Vires.
42. The Applicant submits that it is well-established that the scope of Judicial Review is confined to examining the lawfulness of the process by which a decision has been made. Courts have held that the role in such cases is strictly supervisory, not appellate and that in Judicial Review, the focus is on the legality, rationality, and procedural propriety of the decision-making process. A reviewing court is not concerned with whether the decision itself was correct on the merits but rather with whether the decision-maker adhered to the principles of law and fairness. As such, the court can only set aside a decision if it finds that the process was flawed in clearly defined and limited respects, such as acting ultra vires, failure to observe the rules of natural justice, or irrationality.
43. It ensures that those in authority exercise their powers lawfully and in accordance with the principles of fair administrative action. As stated by the courts, the exercise of this jurisdiction is a form of supervisory control over public bodies, ensuring they act within the bounds of their legal authority.
44. The Applicant invites the Court to consider Republic vs Attorney General & 4 others ex-parte Diamond Hashim Lalji and Ahmed Hasham Lalji where the Court held thus:-
“…Judicial review applications do not deal with the merits of the case but only with the process. In other words judicial review only determines whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters…”
The Respondents Case;
45. It is the Respondents case that viewed holistically, the application herein seeks to maintain a status quo enjoyed by the Applicants wherein the Applicants have enjoyed rental rates for their Licensed businesses predating the year 2000.
46. This situation is not only grossly unfair to the public interest but amounts to a drain on the public exchequer.
47. The application according to them runs afoul the requirements of the International Civil Aviation Organization (ICAO) whose Treaty Kenya is a party.
48. The Treaty and the standards regarding Airports Security Protocol, which are enforced in Kenya by the Kenya Civil Aviation Authority (KCAA) is an International Treaty which Kenya subscribed to on 1stMay 1964.
49. It is argued that if the court was to permit the Applicant to evade compliance with the security Permits (Landside Security Access) requirements, the Wilson Airport could easily be declared non-compliant and therefore delisted from permitted Airports.
50. They argue that the Applicants have failed to disclose that the issue of review of rental charges at the Respondent’s Airports has been undertaken and is already being implemented in all Airports and therefore, there is no unique or special reason that the application of the increased rent charges and the requirements for Landside Security Access Permits should be waived at Wilson Airport, one of the busiest aerodromes in Kenya.
51. The Applicants have also not disclosed the requirements for Landside Security Access Permits took effect in February and March 2023 and therefore, grant of the orders sought herein will effectively amount to reversing Security measures which are already in place to protect the users of the Airports in Kenya, including at Wilson Airport.
52. The Applicant has failed to disclose that its members, who constitute the Licensees at Wilson Airport, were duly engaged and consulted by the Respondent and therefore, the Respondent.
53. It argues that under Section 12 (1) (c) and (2) of the Kenya Airports Authority Act, Cap 395 of the laws of Kenya(KAA Act) the Respondent is mandated to manage all airports and aerodromes in the Republic of Kenya. In so doing, the Respondent is also granted “such power as may be necessary for the performance of its functions under the Act”.
54. Under Section 12(3)(e) of the KAA Act, the Respondent is mandated to “determine, impose and levy rates, charges, dues or fees for any services performed by the Authority, subject to the approval of the minister”.
55. Under Section 11(a) of the KAA Act, the minister for the time being responsible for matters aerodromes, “may - give directions of a general nature to the Board relating to the operation of the undertakings of the Authority”.
56. Under Section 11(b) of the KAA Act, the Minister “may – approve any alteration in the tariffs, rates and other charges made for the services provided by the Authority”.
57. In line with the minister’s powers, it argues there was published a Kenya Airports Authority Concession Order, 1996, wherein the Respondent set the minimum charges payable by various users of the facilities in the various aerodromes, including Wilson Airport, Nairobi.
58. The import, purport and effect of the order was to mandate the Board of the Respondent to levy such charges subject to the minimum set down by the minister.
59. The policy then and now was that the aerodromes were to raise funds for their effective management and would not rely on the National Government for financial support.
60. In an effort to raise the standards of the amenities in all airports and make the Respondent self-sustaining, the Board of the Respondent, pursuant to the Concession Order of 1996, sought to revise its charges for leasing, rental and access to various aerodromes.
61. It argues that the process of revision had the permission of the minister by virtue of the Concession Order of 1996.
62. T submits that initially, the Respondent instructed Messrs. Regent Valuers International (K) Ltd to recommend applicable rental rates but the various licensees at Wilson Airport objected to the valuation. The valuation report dated 20th September 2013 shows the previous valuation.
63. A fresh valuation from the Ministry of Lands and Physical Planning of the fair market rates for rentals and license charges it was permitted to charge at Wilson Airport and Jomo Kenyatta International Airport (JKIA). Annexed hereto and marked “JO 3 (a) & (b)” is a copy of a letter dated11/10/2016 and the valuation report dated 06/10/2016 undertaken by the Ministry of Lands and Physical Planning.
64. It is its case that in the valuation report dated 6th October 2016, the Ministry of Lands and Physical Planning concluded and recommended the rent range for Wilson Airport Building Rental Spaces.
65. Following the valuation dated 06/10/2016, the Respondent’s Board, approved the revision of the various levies, rentals and rates in its Board Meeting held on 2nd August 2017.
66. This was followed by a memo by the then Acting Managing Director in which he instructed the various managers of the aerodromes to implement the Board’s decision.
67. The Respondent then engaged the stakeholders, on two issues:
1) Increment of the rates, rentals and other charges; and
2) Issuance of Landside Security Access Permits also called “Landside Security Permits”.
68. Being a commercial relationship, the established practice is for the Respondent to issue Notices/Notifications of Award of the Licenses to the various Licensees of the Respondent at the various Airports and inform them of the new rental rates and then issue them with Letter of Offer for the renewed Licenses detailing the terms thereof.
69. Following the valuation by the Ministry of Lands and Physical Planning, the Respondent, after the necessary consultations and engagement with stakeholders, issued Notifications of Award renewing the various Licenses of the various licensees who are members of the Applicant.
70. The Respondent argues that the charges applicable prior to the review in March 2023 were last reviewed prior to the year 2000 and therefore, the Respondent has suffered commensurate loss of revenue considering the passage of time.
71. Out of the Notifications of Awards (renewal notices of the Licenses), sent out to the various licensees with businesses at Wilson Airport, at least 18Licensees had already executed the Notification of awards dated 15th March 2023 and have commenced payment of rents/license charges at the new rates.
72. The Notifications of Award constitute Licenses for a period of 5 years and 3 months running from 1st January 2023.
73. It argues that the court cannot issue orders of Certiorari, Prohibition and Mandamus to nullify contracts entered between the Respondent and the various parties, who are neither parties to these proceedings and whose rights shall be affected without being granted any hearing.
74. Following the said contracts between the Respondent and various parties, the new terms for rentals of the Licensed premises are in force in all other airports in the country and therefore, it would undermine the operations of the Respondent if the orders sought are issued to only favour the Licensees from Wilson Airport.
75. The licenses have been in force since January 2023 and therefore, issuance of the orders sought in the application dated 25th January 2024 would require a setback in anticipated revenue of the Respondent for more than 6 months which is the equivalent of half a budgetary year. The Issuance of new Landside Security Access Permits is legal
76. The Respondent manages airports in the context of a global system regulated by the International Civil Aviation Organization (ICAO) whose standards are implemented in Kenya by the Kenya Civil Aviation Authority (KCAA). Kenya became a signatory of ICAO Treaty on 1st May 1964.
77. It is its case that under the Treaty, there is harmonization of operations and management of all Airport in the world and access to the public of all amenities and facilities.
78. It is its case that in particular, and following the regular reviews of Airport safety procedures all over the world, it became necessary to restrict free access of unauthorized persons to certain parts of Airports in Kenya.
79. The regulation of the access would also apply to employees of Licensees who are not scrutinized and such access would be restricted to promote and enhance airport safety and security.
80. To achieve this measure, the Respondent, under the supervision of KCAA, implemented a system of Digital Cards known as Landside Security access permits wherein Licensees would require the essential staff to acquire the Digital Cards for a fee and the card would be similar to Job Identity Card.
81. The Respondent argues that it held stakeholder meetings at the various Airports. Appropriate memoranda were issued to all stakeholders informing them that the rental rates applicable to the Licensees would be increased following the valuation report received by the Ministry of Lands in October 2016.
82. Stakeholder engagements were also conducted prior to commencement of issuance of landside access permit as can seen in the Memos written to the stakeholders dated 10/04/2015 and 02/06/2017 on the issuance of Landside Permits.
83. The Respondent argues that it then engaged with the stakeholders at Wilson Airport with respect to the intention to increase the rental rates in meetings held at Wilson Conference Hall and held on 14th, 15th and 16th December 2022 as set out in the copies of attendance registers indicating that the stakeholder engagement was very well attended.
84. Following these engagements, the Respondent issued the standardized Digital Cards with templates which were approved by the Respondent in July 2022.
85. Charges for the Digital Cards which were the Landside Security Access Permits were published in February 2023 and were now applicable at different rates in various Airports in Kenya.
86. It is its case that having placed everything ready, the Respondent issued instructions to all Airport manages and Operators to ensure that they only permit access to persons who had acquired and or been issued with the said Digital Cards which constituted the Landside Security Access Permits.
87. It places reliance on the following documents in connection with the Security Landside Access Permits:
a. Memos dated 01/07/2022 and 27/06/2022 from the Managing Director of the Respondent to all Airport Managers detailing the approved Landside Access permits and announcing the new charges effective 01/07/2022.
b. Memo dated 28/09/2022 from the Managing Director of the Respondent approving the Artwork of the Landside Access Permits templates.
c. Schedule of the new charges for the Landside Access Permits that were increased by approximately 33.3% and not 500% as alleged by the Applicant.
d. Memos dated 22nd and 31st March 2023 and the templates issued confirming that the Landside Permits were required to be acquired by the licensees of the at Wilson Airport.
88. It argues that flowing from the above process and details, the allegations by the Applicant to the effect that the Applicant acted arbitrarily, illegally, unlawfully, un-procedurally and improperly are completely false, misleading and only meant to deceive this court.
89. The application herein filed by the Applicant is in extreme bad faith in so far as it seeks to stay, quash and or prohibit contractual obligations of many unidentified parties who have not been formally served with the proceedings herein or identified as members of the Applicant herein. Allegations that the Landside areas be determined first. Allegations of unfairness and absence of Ministerial approval incorrect.
90. It engaged the various Licensees of the Respondent and further undertook valuations and issued notices way back in 2015 and later in 2017 before requiring the various Licensees to comply.
91. The application is misconceived in so far as it contends that there was need for a specific ministerial approval in addition to the Concession Order of 1996. In so far as the Applicant is alleging that there was no ministerial approval, he reiterate that the Concession Order of 1996 as read together with the Section 11 of the KAA Act allowed the Respondent to review and revise the charges after following the due process.
92. Designation of landside Areas already done as per KCAA & ICAO. Pursuant to Kenya’s membership of ICAO, the Kenya Civil Aviation Authority (KCAA), through the Civil Aviation Act, and the Civil Aviation (Security) Regulations, 2020, have clearly defined “Landside Areas” in Regulation 2 of the definitions as “Landside” means an area of an airport and buildings on it to which the non- travelling public has free access.
93. The landside areas are clearly identified and the public is clearly informed that access to the airside area is limited beyond a certain point. The measures of requiring security permits for Licensees are already in place in all Airports including Wilson Airport and therefore, there is no special reason why the measures should be different in Wilson Airport alone.
94. The rental charges introduced recently, constitute the first increment since years 1990s and therefore the Applicant is really sensationalizing the issue. In addition, even the rental License increments that were introduced by the Respondent through the Notifications of Award dated 15th March 2023 are based on a valuation carried out on 6th October 2016, almost 7years ago.
95. Kenya, being an active member of ICAO, has already presented its position to ICAO and confirmed that it has complied with ICAO’s requirements to upgrade its security measures at its aerodromes, including at Wilson Airport.
96. The Applicants have not disclosed that they were engaged in stakeholder participation but have instead deliberately misled the court and failed to disclose that the increment of rental and other charges has been inexistence since 2015, now 8 years ago.
97. The notifications of the award dated 15th March 2023 and notices of landside access permits of 22nd March 2023 were not arbitrary were arrived
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1. The Applicant's issues in this suit are pegged on the two decisions of the Respondent contained in the Notices dated 15th March 2023 and 22nd March 2023 respectively.
2. The Respondent’s decision dated 15th March 2023 takes the form of various letters addressed to the individual members of the Applicant and titled Notification of Award. The letters set out the terms and conditions prescribed by the Respondent including charges relating to licence for use of the premises, concessions and other facilities provided by the Respondent to members of the Applicant.
3. The Respondent’s other decision is dated 22nd March 2023.It is a notice to all Airport Operators and all Government Agencies at Wilson Airport on the Issuance of Landslide Access Permits. The effect of the decision is to the effect that operators with staff working at the Landslide do acquire Landslide passes at a prescribed fee from the Respondent.
4. The gravamen of the Applicant’s complaint is that the twin impugned decisions are designed to surreptitiously and cunningly introduce exorbitant, unlawful, unprocedural and unjustified fees, charges and levies for use of the premises, concessions and other facilities provided by the Respondent to the members of the Applicant to the prejudice of the members of the Applicant. The Applicant takes the position that the Respondent’s decisions are wanton, egregious and marred with Procedural Improprieties, Unlawfulness and Ultra Vires.
5. This has precipitated the filing of the Notice of Motion application dated 25th January 2024 that forms the subject of this court’s decision wherein the applicant seeks the following orders:
1) CERTIORARI to remove into this Honourable Court for the purposes of quashing the Respondent's decision dated 15th March, 2023 and 22rd March, 2023.
2) PROHIBITION restraining the Respondent by itself, its agents or persons acting on its behalf from arbitrarily imposing and collecting high license fees for use of the premises, concessions, and other facilities provided by the Respondent to the Members of the Applicant.
3) MANDAMUS compelling and directing the Respondent to comply with the mandatory statutory requirements of Sections 8(3) and 12(3)(e) of the Kenya Airports Authority Act, Cap 295 of the Laws of Kenya and Regulation25(2)(b)(xx) of the Civil Aviation (Security) Regulations, 2020.
4) DECLARATION to the effect that the Notices issued on the 15th March, 2023 and 22nd March, 2023 to the Applicant's Members, were not done in conformity with the Kenya Airports Authority Act as well as the laid down Procedures and are a breach of the Rights of the Applicant's Members to fair administrative action.
5) AN ORDER that costs of this Application be paid for by the Respondent.
The Applicants Case;
6. It is the Applicant’s case that the Respondent entered into various agreements with several individual members of the Applicant authorizing the said members to undertake various business activities at the Respondent's premises situated outside the Airside and the Landside at Wilson International Airport.
7. It is argued that the Applicant's members are duly licensed by the Kenya Airports Authority (hereafter referred to as KAA) to gain fully carry out their business on the licensed space.
8. On 15th March, 2023 and 22nd March, 2023, the Respondent unilaterally issued two notices to the Applicant's members purporting to review their licenses by increasing the amounts being levied upon their business premises and purporting to introduce Landslide access permits to the owners of the businesses on the Airport's Landslide without any justifiable reason.
9. The notices referenced "renewal of contract at wilson airport" which were issued on the 15th March, 2023 purported to effect the new changes on the 1st January, 2023, and as such the same sought to act retrospectively instead of retroactively.
10. It is the Applicant’s case that there is no legitimate reason to vary the initial license terms without involving the Applicant's members who are licensed to carry out business on the premises by the Kenya Airports Authority.
11. It argues that on 22nd March, 2023, the Respondent issued a Notice to the Applicant's Members referencing "issuance of landside permits" in which it purported to introduce access permits to Business owners on the Landside of the Wilson Airport.
12. The effect of unfairly charging business owners on the areas not Legally demarcated and classified as Landside of the Airport a Permit fee despite them having already paid rent for their premises and the permit fee was not chargeable under the initial agreement entered into between the Respondent and members of the Applicant.
13. It argues that all persons including employees and visitors to the Applicant's Members premises will be required to process Landside Access permits prior to gain access to their business premises.
14. The grant of the proposed Landside permit is predicated upon grant of other permits such as certificate of good conduct from the Director of Criminal Investigations.
15. This will deter its Members customers from visiting our Members premises most of which are outside the aerodrome.
16. It is concerned that The Respondent did not give the Applicant notice of intention to change the terms of the licenses and introduce passes to the Applicant's member's business.
17. On 5th May, 2023, the Respondent published new rates of charges it had introduced for Landside security permit and other services. The imposed charges are exorbitant and injurious to the members' businesses.
18. According to the Applicant ,the decision was arbitrary,illegal, and unreasonable and the power as purportedly exercised by the Respondent does not exist in law thereby acting Section 12 (3) of the Kenya Airports Authority Act (KAA Act) empowers the Respondents to determine, impose and levy rates, charges, dues/fees or for the grant to any person of a license, permit or certificate, subject to the approval of the Minister.
19. It argues that Section 11(b) of the Kenya Airports Authority Act (KAA Act) empowers the Interested Party to approve any charges made for the services provided by the Authority by way of a Gazette Notice.
20. It is its case further that The Respondent in flagrant breach of the provisions of Section 6 of the Fair Administrative Actions Act neglected, omitted and /or willfully refused to supply any reasons to the Applicant despite request for the same having been made on the 28th March, 2023.
21. It is its case that the Respondent has not evidenced the Minister's approval of the said changes, contrary to Constitutional requirements and the Fair Administrative Act.
22. It is a mandatory requirement of Regulation 25(2)(b) of the Civil Aviation (Security) Regulations, 2020 that the Respondent identifies and designates landside areas to determine which premises fell within such areas designated as landside for purposes of the said Regulations.
23. The applicant is concerned that the Respondent has not evidenced such designation contrary to the above-stated regulations and that in the circumstances the Respondent's actions are marred with irregularities having been carried out without regard to due process and are aimed at disenfranchising the Applicant's members.
24. The abrupt increase of charges relating to licence for use of the premises, concessions, and other facilities provided by the Respondent to the Members of the Applicant which is more than 500% in most cases is arbitrary, unreasonable, harsh, burdensome, and oppressive and an improper exercise of the Respondents mandate as provided under the parent Act and the Constitution and amounts to unfair and unconstitutional imposition of charges.
25. It is strongly persuaded that by rendering its decision of 15th March, 2023 and 22nd March, 2023, the Respondent violated the Legitimate Expectations of the Applicant's Members that before making such arbitral decisions, they would have been consulted as people to be most substantially affected by such a decision.
26. It argues that the Respondent failed to furnish the Applicant with the notices requested for or an explanation for the abrupt changes in the licensing terms despite a Demand Notice being issued upon it.
The Applicant’s Submissions;
27. The Applicant submits that the Kenya Airports Authority Act provides for the powers and functions of the Respondent and for connected purposes and that Section 8(3)(d) of the Act imposes upon the Board of the Respondent the duty to ensure that the Respondent performs its duties in a manner that no particular person or body is given undue preference or subjected to any undue disadvantage.
28. The Applicant’s advances the case that the introduction of exorbitant, unlawful, unprocedural and unjustified fees, charges and levies for use of the premises, concessions and other facilities provided by the Respondent to the members of the Applicant is prejudicial to the members of the Applicant and subjects the said members to undue disadvantage.
29. It submits that Sections 12(3)(e) of the Act gives the Respondent the power to determine, impose and levy rates, charges, dues or fees for any services performed by the Respondent, or for use by any person of facilities provided by the Respondent, or for the grant to any person of a licence permit or certificates subject to the approval of the Minister.
30. It further submits that Section 11(b) of the Act vests the Minister with the powers to approve any alterations in the tariff rates and other charges made for the services provided by the Authority. The Applicant reckons that there was no ministerial approval for the charges, rates and licence fees complained imposed by the Respondent in the impugned twin decisions.
31. Regulation 25(2)(b)(xx) of the Civil (Security) Aviation Regulations 2020 enjoined the Respondent to identify and designate Landside areas. The Applicant submits that the exercise of identification and designation of Landside areas was designed to determine which premises fell within such areas designated as Landslide for the purpose of the said Regulation. The Applicant reckons that premises used by their Members do not fall within the landside area.
32. It submits that Section 6 of the Fair Administrative Actions Act, 2015 enjoins the Respondent to furnish reasons upon request by a person who would be affected by an administrative action. On 28th April 2023, the Applicant requested from the Respondent reasons for its decisions. However, the Respondent in flagrant breach of the legal stipulations neglected, omitted and/or willfully refused to supply any reasons to the Applicant.
33. The Applicant submits that the Respondent’s decisions are wanton, egregious and marred with Procedural improprieties, unlawfulness and ultra vires. It submits that this is a fact that has been admitted in pleadings by the Interested Party. At Paragraph 12 of his Replying Affidavit Sworn on 5th June 2024, MOHAMED DAGHAR, the Principle Secretary, State Depart of Transport in the of Roads and Transport states as follows;
“12. That the initial license issued by KAA were made in accordance with approved rates however the alterations were not made in compliance with the law.”
34. Reliance is placed in the case of Republic v Kenya Revenue Authority Ex-parte Shake Distributors Limited [2012] eKLR, addressed the need for statue creatures to act within the powers granted to the by statute and held thus:-
“It must be noted from the beginning that the Respondent is a public body created by statue. It is therefore expected to perform its functions within the mandate donatedto it by the law. It must act within the cocoon designed for it by Parliament. If it assumes a role not given to it by the lawmakers, then this Court will step in tocorrect it by issuing relevant orders. It must also comply with the rules of natural justice. Failure to do so will see its decisions quashed for procedural impropriety.”
35. The Applicant humbly submits that the Concession Order of 1996 in its present form cannot be construed as conferring Ministerial Approval required under the Act for the decisions herein the subject of this Application.
36. It submits that the Respondent’s Replying Affidavit contain elaborate arguments by the Respondent in which the Respondent contends that it has complied with the requisite Regulations including Regulation 25(2)(b)(xx) of the Civil (Security) Aviation Regulations 2020.
37. At Paragraph 61.6 the Respondent has reproduced definition of Landside Areas’ as per Regulation as;
“Landside Areas” means an area of an airport and buildings on to which the non-traveling public has free access.”
38. The Applicant’s complaint on account of this regulation was that by introducing landside access permits for a fee, the Respondent was surreptitiously and cunningly introducing exorbitant, unlawful, unprocedural and unjustified fees, charges and levies for use of the premises, concessions and other facilities provided by the Respondent to the members of the Applicant to the prejudice of the members of the Applicant.
39. The Applicant has also singled out the Respondent for failure to furnish reasons upon request pursuant to Section 6 of the Fair Administrative Actions Act. The Applicant has produced evidence in form of a letter served upon the Respondent on 28th April 2023.
40. The Respondent has offered no explanation to justify its refusal to comply with the mandatory legal requirement. Section6 (4) of the Act provides that subject to subsection (5), if an administrator fails to furnish the applicant with the reasons for the administrative decision or action, the administrative action or decision shall, in any proceedings for review of such action or decision and in the absence of proof to the contrary, be presumed to have been taken without good reason.
41. It submits that there is enough material for the Honourable Court to find the twin impugned decisions as wanton, egregious and marred with Procedural Improprieties, Unlawfulness and Ultra Vires.
42. The Applicant submits that it is well-established that the scope of Judicial Review is confined to examining the lawfulness of the process by which a decision has been made. Courts have held that the role in such cases is strictly supervisory, not appellate and that in Judicial Review, the focus is on the legality, rationality, and procedural propriety of the decision-making process. A reviewing court is not concerned with whether the decision itself was correct on the merits but rather with whether the decision-maker adhered to the principles of law and fairness. As such, the court can only set aside a decision if it finds that the process was flawed in clearly defined and limited respects, such as acting ultra vires, failure to observe the rules of natural justice, or irrationality.
43. It ensures that those in authority exercise their powers lawfully and in accordance with the principles of fair administrative action. As stated by the courts, the exercise of this jurisdiction is a form of supervisory control over public bodies, ensuring they act within the bounds of their legal authority.
44. The Applicant invites the Court to consider Republic vs Attorney General & 4 others ex-parte Diamond Hashim Lalji and Ahmed Hasham Lalji where the Court held thus:-
“…Judicial review applications do not deal with the merits of the case but only with the process. In other words judicial review only determines whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters…”
The Respondents Case;
45. It is the Respondents case that viewed holistically, the application herein seeks to maintain a status quo enjoyed by the Applicants wherein the Applicants have enjoyed rental rates for their Licensed businesses predating the year 2000.
46. This situation is not only grossly unfair to the public interest but amounts to a drain on the public exchequer.
47. The application according to them runs afoul the requirements of the International Civil Aviation Organization (ICAO) whose Treaty Kenya is a party.
48. The Treaty and the standards regarding Airports Security Protocol, which are enforced in Kenya by the Kenya Civil Aviation Authority (KCAA) is an International Treaty which Kenya subscribed to on 1stMay 1964.
49. It is argued that if the court was to permit the Applicant to evade compliance with the security Permits (Landside Security Access) requirements, the Wilson Airport could easily be declared non-compliant and therefore delisted from permitted Airports.
50. They argue that the Applicants have failed to disclose that the issue of review of rental charges at the Respondent’s Airports has been undertaken and is already being implemented in all Airports and therefore, there is no unique or special reason that the application of the increased rent charges and the requirements for Landside Security Access Permits should be waived at Wilson Airport, one of the busiest aerodromes in Kenya.
51. The Applicants have also not disclosed the requirements for Landside Security Access Permits took effect in February and March 2023 and therefore, grant of the orders sought herein will effectively amount to reversing Security measures which are already in place to protect the users of the Airports in Kenya, including at Wilson Airport.
52. The Applicant has failed to disclose that its members, who constitute the Licensees at Wilson Airport, were duly engaged and consulted by the Respondent and therefore, the Respondent.
53. It argues that under Section 12 (1) (c) and (2) of the Kenya Airports Authority Act, Cap 395 of the laws of Kenya(KAA Act) the Respondent is mandated to manage all airports and aerodromes in the Republic of Kenya. In so doing, the Respondent is also granted “such power as may be necessary for the performance of its functions under the Act”.
54. Under Section 12(3)(e) of the KAA Act, the Respondent is mandated to “determine, impose and levy rates, charges, dues or fees for any services performed by the Authority, subject to the approval of the minister”.
55. Under Section 11(a) of the KAA Act, the minister for the time being responsible for matters aerodromes, “may - give directions of a general nature to the Board relating to the operation of the undertakings of the Authority”.
56. Under Section 11(b) of the KAA Act, the Minister “may – approve any alteration in the tariffs, rates and other charges made for the services provided by the Authority”.
57. In line with the minister’s powers, it argues there was published a Kenya Airports Authority Concession Order, 1996, wherein the Respondent set the minimum charges payable by various users of the facilities in the various aerodromes, including Wilson Airport, Nairobi.
58. The import, purport and effect of the order was to mandate the Board of the Respondent to levy such charges subject to the minimum set down by the minister.
59. The policy then and now was that the aerodromes were to raise funds for their effective management and would not rely on the National Government for financial support.
60. In an effort to raise the standards of the amenities in all airports and make the Respondent self-sustaining, the Board of the Respondent, pursuant to the Concession Order of 1996, sought to revise its charges for leasing, rental and access to various aerodromes.
61. It argues that the process of revision had the permission of the minister by virtue of the Concession Order of 1996.
62. T submits that initially, the Respondent instructed Messrs. Regent Valuers International (K) Ltd to recommend applicable rental rates but the various licensees at Wilson Airport objected to the valuation. The valuation report dated 20th September 2013 shows the previous valuation.
63. A fresh valuation from the Ministry of Lands and Physical Planning of the fair market rates for rentals and license charges it was permitted to charge at Wilson Airport and Jomo Kenyatta International Airport (JKIA). Annexed hereto and marked “JO 3 (a) & (b)” is a copy of a letter dated11/10/2016 and the valuation report dated 06/10/2016 undertaken by the Ministry of Lands and Physical Planning.
64. It is its case that in the valuation report dated 6th October 2016, the Ministry of Lands and Physical Planning concluded and recommended the rent range for Wilson Airport Building Rental Spaces.
65. Following the valuation dated 06/10/2016, the Respondent’s Board, approved the revision of the various levies, rentals and rates in its Board Meeting held on 2nd August 2017.
66. This was followed by a memo by the then Acting Managing Director in which he instructed the various managers of the aerodromes to implement the Board’s decision.
67. The Respondent then engaged the stakeholders, on two issues:
1) Increment of the rates, rentals and other charges; and
2) Issuance of Landside Security Access Permits also called “Landside Security Permits”.
68. Being a commercial relationship, the established practice is for the Respondent to issue Notices/Notifications of Award of the Licenses to the various Licensees of the Respondent at the various Airports and inform them of the new rental rates and then issue them with Letter of Offer for the renewed Licenses detailing the terms thereof.
69. Following the valuation by the Ministry of Lands and Physical Planning, the Respondent, after the necessary consultations and engagement with stakeholders, issued Notifications of Award renewing the various Licenses of the various licensees who are members of the Applicant.
70. The Respondent argues that the charges applicable prior to the review in March 2023 were last reviewed prior to the year 2000 and therefore, the Respondent has suffered commensurate loss of revenue considering the passage of time.
71. Out of the Notifications of Awards (renewal notices of the Licenses), sent out to the various licensees with businesses at Wilson Airport, at least 18Licensees had already executed the Notification of awards dated 15th March 2023 and have commenced payment of rents/license charges at the new rates.
72. The Notifications of Award constitute Licenses for a period of 5 years and 3 months running from 1st January 2023.
73. It argues that the court cannot issue orders of Certiorari, Prohibition and Mandamus to nullify contracts entered between the Respondent and the various parties, who are neither parties to these proceedings and whose rights shall be affected without being granted any hearing.
74. Following the said contracts between the Respondent and various parties, the new terms for rentals of the Licensed premises are in force in all other airports in the country and therefore, it would undermine the operations of the Respondent if the orders sought are issued to only favour the Licensees from Wilson Airport.
75. The licenses have been in force since January 2023 and therefore, issuance of the orders sought in the application dated 25th January 2024 would require a setback in anticipated revenue of the Respondent for more than 6 months which is the equivalent of half a budgetary year. The Issuance of new Landside Security Access Permits is legal
76. The Respondent manages airports in the context of a global system regulated by the International Civil Aviation Organization (ICAO) whose standards are implemented in Kenya by the Kenya Civil Aviation Authority (KCAA). Kenya became a signatory of ICAO Treaty on 1st May 1964.
77. It is its case that under the Treaty, there is harmonization of operations and management of all Airport in the world and access to the public of all amenities and facilities.
78. It is its case that in particular, and following the regular reviews of Airport safety procedures all over the world, it became necessary to restrict free access of unauthorized persons to certain parts of Airports in Kenya.
79. The regulation of the access would also apply to employees of Licensees who are not scrutinized and such access would be restricted to promote and enhance airport safety and security.
80. To achieve this measure, the Respondent, under the supervision of KCAA, implemented a system of Digital Cards known as Landside Security access permits wherein Licensees would require the essential staff to acquire the Digital Cards for a fee and the card would be similar to Job Identity Card.
81. The Respondent argues that it held stakeholder meetings at the various Airports. Appropriate memoranda were issued to all stakeholders informing them that the rental rates applicable to the Licensees would be increased following the valuation report received by the Ministry of Lands in October 2016.
82. Stakeholder engagements were also conducted prior to commencement of issuance of landside access permit as can seen in the Memos written to the stakeholders dated 10/04/2015 and 02/06/2017 on the issuance of Landside Permits.
83. The Respondent argues that it then engaged with the stakeholders at Wilson Airport with respect to the intention to increase the rental rates in meetings held at Wilson Conference Hall and held on 14th, 15th and 16th December 2022 as set out in the copies of attendance registers indicating that the stakeholder engagement was very well attended.
84. Following these engagements, the Respondent issued the standardized Digital Cards with templates which were approved by the Respondent in July 2022.
85. Charges for the Digital Cards which were the Landside Security Access Permits were published in February 2023 and were now applicable at different rates in various Airports in Kenya.
86. It is its case that having placed everything ready, the Respondent issued instructions to all Airport manages and Operators to ensure that they only permit access to persons who had acquired and or been issued with the said Digital Cards which constituted the Landside Security Access Permits.
87. It places reliance on the following documents in connection with the Security Landside Access Permits:
a. Memos dated 01/07/2022 and 27/06/2022 from the Managing Director of the Respondent to all Airport Managers detailing the approved Landside Access permits and announcing the new charges effective 01/07/2022.
b. Memo dated 28/09/2022 from the Managing Director of the Respondent approving the Artwork of the Landside Access Permits templates.
c. Schedule of the new charges for the Landside Access Permits that were increased by approximately 33.3% and not 500% as alleged by the Applicant.
d. Memos dated 22nd and 31st March 2023 and the templates issued confirming that the Landside Permits were required to be acquired by the licensees of the at Wilson Airport.
88. It argues that flowing from the above process and details, the allegations by the Applicant to the effect that the Applicant acted arbitrarily, illegally, unlawfully, un-procedurally and improperly are completely false, misleading and only meant to deceive this court.
89. The application herein filed by the Applicant is in extreme bad faith in so far as it seeks to stay, quash and or prohibit contractual obligations of many unidentified parties who have not been formally served with the proceedings herein or identified as members of the Applicant herein. Allegations that the Landside areas be determined first. Allegations of unfairness and absence of Ministerial approval incorrect.
90. It engaged the various Licensees of the Respondent and further undertook valuations and issued notices way back in 2015 and later in 2017 before requiring the various Licensees to comply.
91. The application is misconceived in so far as it contends that there was need for a specific ministerial approval in addition to the Concession Order of 1996. In so far as the Applicant is alleging that there was no ministerial approval, he reiterate that the Concession Order of 1996 as read together with the Section 11 of the KAA Act allowed the Respondent to review and revise the charges after following the due process.
92. Designation of landside Areas already done as per KCAA & ICAO. Pursuant to Kenya’s membership of ICAO, the Kenya Civil Aviation Authority (KCAA), through the Civil Aviation Act, and the Civil Aviation (Security) Regulations, 2020, have clearly defined “Landside Areas” in Regulation 2 of the definitions as “Landside” means an area of an airport and buildings on it to which the non- travelling public has free access.
93. The landside areas are clearly identified and the public is clearly informed that access to the airside area is limited beyond a certain point. The measures of requiring security permits for Licensees are already in place in all Airports including Wilson Airport and therefore, there is no special reason why the measures should be different in Wilson Airport alone.
94. The rental charges introduced recently, constitute the first increment since years 1990s and therefore the Applicant is really sensationalizing the issue. In addition, even the rental License increments that were introduced by the Respondent through the Notifications of Award dated 15th March 2023 are based on a valuation carried out on 6th October 2016, almost 7years ago.
95. Kenya, being an active member of ICAO, has already presented its position to ICAO and confirmed that it has complied with ICAO’s requirements to upgrade its security measures at its aerodromes, including at Wilson Airport.
96. The Applicants have not disclosed that they were engaged in stakeholder participation but have instead deliberately misled the court and failed to disclose that the increment of rental and other charges has been inexistence since 2015, now 8 years ago.
97. The notifications of the award dated 15th March 2023 and notices of landside access permits of 22nd March 2023 were not arbitrary were arrived
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