[2020] KEHC 1483 (KLR)
The court found that the applicant had established a prima facie case for the grant of a mandatory injunction, as the 1st respondent did not rebut the applicant's denial of owing parking charges. The court held that, in the absence of any response or evidence from the 1st respondent, the applicant's claim stood...
Source-derived case information.
- Citation
- [2020] KEHC 1483 (KLR)
- Parties
- Applicant: Dawn Aviation Limited; Respondent: Kenya Airports Authority; Respondent: Wilken Aviation; Respondent: Perfect Aviation Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 358 of 2020
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Injunction
- Outcome
- interlocutory mandatory injunction granted against 1st respondent; costs in the cause
- Judges
- F Tuiyott
- Legal Topics
- Injunctive Relief, Ownership of Aircraft, Airport Parking Charges
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dawn Aviation Limited
Applicant
Kenya Airports Authority
Respondent
Wilken Aviation
Respondent
Perfect Aviation Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Injunction
Legal Issues
- 1 Whether the applicant is entitled to a mandatory injunction compelling the 1st respondent to withdraw the sale notice for aircraft 5Y-ATW.
- 2 Whether there is a prima facie case for restraining the 1st respondent from selling the aircraft pending determination of the suit.
- 3 Whether there exists a cause of action against the 2nd and 3rd respondents.
Ratio Decidendi
The court found that the applicant had established a prima facie case for the grant of a mandatory injunction, as the 1st respondent did not rebut the applicant's denial of owing parking charges. The court held that, in the absence of any response or evidence from the 1st respondent, the applicant's claim stood unchallenged. The court therefore granted the order compelling the 1st respondent to withdraw the sale notice in respect of aircraft 5Y-ATW. The objections raised by the 2nd and 3rd respondents regarding the absence of a cause of action against them were deferred for determination at a later stage, as they did not affect the immediate relief sought against the 1st respondent.
Court Disposition
interlocutory mandatory injunction granted against 1st respondent; costs in the cause
Orders
- A mandatory order of injunction is issued compelling the 1st respondent to withdraw the Notice published in Kenya Gazette Notice No 5870 in respect of aircraft 5Y-ATW.
- Costs in the cause.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL & TAX DIVISION
MILIMANI LAW COURTS
HCCC NO. E 358 OF 2020
DAWN AVIATION LIMITED...........................................................APPLICANT
VERSUS
KENYA AIRPORTS AUTHORITY (KAA)............................1ST RESPONDENT
WILKEN AVIATION............................................................... 2ND RESPONDENT
PERFECT AVIATION LIMITED.......................................... 3RD RESPONDENT
RULING
1. The entire purpose of these proceedings is to interdict Kenya Airports Authority (KAA or the 1st Respondent)from disposing of or selling aircraft registration No. 5Y-ATW. That aircraft belongs to Dawn Aviation Limited (Dawn Aviation or the Applicant).
2. In a Plaint dated 14th September 2020, Dawn Aviation states that it bought the aircraft from Perfect Aviation Limited (Perfect Aviation or the 3rd Respondent) and it is under the custody of Wilken Aviation (Wilken or the 2nd Respondent), as an operator. It complains that KAA intends to sell the aircraft, ostensibly because of outstanding parking charges. It denies owing any charges.
3. The intention to sell is said to have been expressed in Kenya Gazette Notice No. 5870. That is the notice that triggered Dawn Aviation to file this suit and the Notice of Motion dated 14th September 2020 for the following substantive orders:-
2. Spent
3. That pending the hearing and determination of this suit, a mandatory order of injunction does issue compelling the 1st Respondent to withdraw the Notice published in the Kenya Gazette Notice No 5870, specifically in respect of the 5Y-ATW aircraft.
4. Notwithstanding evidence of service, KAA neither responded to nor attended the hearing of the Application. Wilken and Perfect separately filed Preliminary Objections dated 23rd September 2020 in which they raise the same issues. At the heart of the objections is that there is no cause of action against them.
5. This Court is inclined to grant the order injuncting KAA from selling the aircraft. The allegations made by Dawn that it does not owe any parking charges to KAA have not been rebutted. In that event it has made out a prima facie case.
6. Whether or not Wilken and Perfect Aviation should have been sued is a matter for another day and can be raised as a substantive question by the affected Defendants.
7. I grant of order 3 of the Notice of Motion dated 14th September 2020. Costs in the cause.
Dated, Signed and Delivered in Court at Nairobi this 10th day of November 2020
F. TUIYOTT
JUDGE
ORDER
In view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by his Lordship, the Chief Justice on 17TH April 2020, this Ruling has been delivered to the parties through virtual platform.
F. TUIYOTT
JUDGE
PRESENT:
Nyakeringa for the Applicant.
No appearance for the Respondents.