[2019] KEELC 327 (KLR)
The court found that Nairobi City County is a necessary party to the proceedings because the building plans for the hotel in question were approved by its predecessor, Nairobi City Council. The County's involvement is crucial for the court to determine whether the construction complied with aviation safety...
Source-derived case information.
- Citation
- [2019] KEELC 327 (KLR)
- Parties
- Petitioner: Issa Kher Mohamud Mohamed; Petitioner: Another (2nd Petitioner); Respondent: The Minister of State for Provincial Administration & Internal Security; Interested Party: Kenya Civil Aviation Authority & Another; Respondent: Nairobi City County Government
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 199 of 2013
- Procedural Posture
- Chamber Summons / Ruling on Application for Joinder of Party
- Outcome
- application for joinder allowed
- Legal Topics
- Joinder of Parties, Building Approvals, Aviation Safety Regulations, Municipal Authority Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Issa Kher Mohamud Mohamed
Petitioner
Another (2nd Petitioner)
Petitioner
The Minister of State for Provincial Administration & Internal Security
Respondent
Kenya Civil Aviation Authority & Another
Interested Party
Nairobi City County Government
Respondent
Procedural Posture
Chamber Summons / Ruling on Application for Joinder of Party
Legal Issues
- 1 Whether Nairobi City County should be enjoined as the 5th Respondent in the petition.
- 2 Whether the Nairobi City County is a necessary party for the complete and effectual adjudication of the petition.
- 3 Whether the building in question was constructed in accordance with relevant aviation and municipal regulations.
Ratio Decidendi
The court found that Nairobi City County is a necessary party to the proceedings because the building plans for the hotel in question were approved by its predecessor, Nairobi City Council. The County's involvement is crucial for the court to determine whether the construction complied with aviation safety regulations and municipal planning requirements, particularly given the proximity of the building to Moi Airbase. The court held that, for the petition to be completely and effectually adjudicated, Nairobi City County must be enjoined as a respondent. The application for joinder was therefore allowed.
Court Disposition
application for joinder allowed
Orders
- Nairobi City County is enjoined as the 5th Respondent.
- Pleadings to be amended within 21 days.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MILIMANI
ELC NO. 199 OF 2013
ISSA KHER MOHAMUD MOHAMED & ANOTHER.....................PETITIONERS
=VERSUS=
THE MINISTER OF STATE FOR PROVINCIAL
ADMINISTRATION & INTERNAL SECURITY & 3 OTHERS.....RESPONDENTS
AND
KENYA CIVIL AVIATION AUTHORITY & ANOTHER.....INTERESTED PARTY
AND
NAIROBI CITY COUNTY GOVERNMENT.........PROPOSED 5TH RESPONDENT
RULING
1. This is a ruling in respect of a chamber summons dated 19th April 2016 which seeks joinder of Nairobi City County as the 5th Respondent in this suit. This Application was brought by the Attorney General who is the 4th Respondent. The Application was necessitated by a petition in which the Petitioners seek to stop the Respondents from demolishing an hotel erected on LR No.36/II/302 at Eastleigh in Nairobi.
2. The 1st Petitioner is the registered owner of the land on which an hotel owned by the 2nd Petitioner is built. Sometime in 2011, the hotel was marked for demolition on the ground that it is too close to Eastleigh Air Base and that its height is an obstacle to the aircrafts which use the Air Base.
3. The Applicant argues that the building plans for the hotel were approved by the Nairobi City Council which is the predecessor of Nairobi City County which is sought to be enjoined as 5th Respondent. The Applicant argues that the joinder of Nairobi City County is necessary to enable the Court determine the Petition completely and effectually.
4. The Applicant’s application is opposed by the Nairobi City County based on grounds of opposition filed in Court on 25th May 2016. The Nairobi City County contends that the Petition does not disclose any cause of action against it and that therefore its joinder is not necessary. The Nairobi City County further argues that there is no relief which the Petitioners are seeking from it and that the Petition herein can be determined without it being enjoined as a party.
5. I have carefully considered the Applicant’s application as well as the opposition to the same by the Nairobi City County. I have also considered the submissions by the Applicant and the Nairobi City County. The only issue for determination is whether the Nairobi City County should be enjoined in this Petition. The issue in contention in this Petition is whether the building which was earmarked for demolition was built in accordance with the requirements of the International Civil Aviation Organization as regards obstacle restriction.
6. The Petitioners in their petition have contended that the building was put up after the Nairobi City Council approved the building plans. In approving the building plans, the Nairobi City Council was expected to involve the Moi Airbase officers who would have put in their comments as the building is near the Moi Airbase and the building has to have a certain height which will not interfere with the safety of the aircrafts. The Nairobi City County is therefore a necessary party to enable the court to effectually and completely adjudicate upon and settle the questions involved in the Petition. I therefore allow the application by the Applicant. The Nairobi City County is hereby enjoined as the 5th Respondent. Pleadings to be amended within 21 days. The pleadings shall be served upon the added party only. Costs shall be in the cause.
It is so ordered.
Dated, Signed and Delivered at Nairobion this 19th day of December 2019
E.O .OBAGA
JUDGE
In the Presence of:-
Mr Matundura for Mr Mogaka for 5th Respondent and
Mr Muturi for Mr Mwangi for Petitioner
Court Assistant: Hilda
E.O.OBAGA
JUDGE