[2025] KENCCART 81 (KLR)

Skyship Company Limited & 3 others v Kenya Civil Aviation Authority; Ishara Air Balloon Safaris Limited (Interested Party) (Appeal E001 of 2023) [2025] KENCCART 81 (KLR) (Constitutional and Human Rights) (25 March 2025) (Judgment)

Neutral citation: [2025] KENCCART 81 (KLR)

Republic of Kenya

In the National Civil Aviation Administrative Review Tribunal

Constitutional and Human Rights

Appeal E001 of 2023

G. Njaramba, Chair, V Khaminwa, Vice Chair, HI Hache & JK Kiili, Members

March 25, 2025

Between

Skyship Company Limited

1st Appellant

Africa Eco-Adventures Limited

2nd Appellant

Adventures Aloft Kenya Limited

3rd Appellant

Balloon Safaris Limited

4th Appellant

and

Kenya Civil Aviation Authority

Respondent

and

Ishara Air Balloon Safaris Limited

Interested Party

Judgment

A. Case Background The Appellants’ Case 1. The 1st, 2nd, 3rd and 4th Appellants brought this appeal by way of a Petition of Appeal dated 22nd June, 2023. Paramjeet Mhajan swore an Affidavit in support of the Appeal sworn on 22nd June, 2023. The deponent made further Affidavits sworn on 29th June 2023, 2nd April 2024 and 3rd July 2024.

2. The Appellants are all Hot Air Balloon Operators carrying on business at the Masai Mara National Reserve in Narok County within the Republic of Kenya.

3. The Appellants seek the following orders:1. The decision of the Kenya Civil Aviation Authority to grant Ishara Air Balloon Safaris Limited a one-year licence as published in the Kenya Gazette Notice No. 6959 of 23rd May 2023 be and is hereby quashed and set aside.2. The Appellants be awarded costs of the Appeal.

4. It is the Appellants’ case that on 5th October 2022 the Chief Park Warden, Masai Mara National Reserve dispatched a Memorandum to all Balloon Operators inviting them for a consultative meeting on 13th October, 2022 to discuss issues related to compliance to operate and fly over the Masai Mara National Reserve, identify a centralized take off and landing areas for all balloons to reduce the level of environmental degradation that was being experienced within the reserve, amongst other issues.

5. Following the consultative meeting, of 13th October, 2022 it was resolved that all balloon operators located within the Masai Mara National Reserve and specifically those operating around the Pose Plains, scale down their operations by reducing the number of air balloons operating in that area per day to conserve the eco-system and avoid further degradation of the environment.

6. The Appellants aver that on 28th October 2022 the Narok County Government placed an advertisement in the Daily Nation a Notice inviting air balloon operators, among others, to provide certain documentation for the purpose of establishing the number and status of tourist facilities in the reserve, towards the development of the Masai Mara Management Plan.

7. The Respondent on 21st December, 2022 published in the Kenya Gazette the particulars of an application by Ishara Air Balloon Safaris Limited (the Interested Party) for issuance of an Air Service Licence.

8. The 1st and 2nd Appellants, together with other relevant stakeholders including the Narok County Government, submitted their respective written representations objecting to the grant of an Air Service Licence to Ishara Air Balloon Safaris Limited.

9. The Respondent conducted a public hearing on 13th January 2023 for the purpose of determining the application of Ishara Air Balloon Safaris Ltd for a grant of Air Service Licence.

10. The Respondent then deferred its decision.

11. The 1st and 3rd Petitioners wrote to the Respondent requesting to be furnished with reasons for its decision to grant the Air Service Licence to Ishara Air Balloon Safaris Limited.

12. The Petitioners aver that the Respondent in coming up with the decision to grant Ishara Air Balloon Safaris Limited an Air Service Licence failed to consider all representations, relevant information and supporting documents placed before it in total disregard of the provisions of the Civil Aviation Act.

13. On the grounds of the Petition, the Appellants seek the quashing and setting aside of the decision by the Respondent to grant the Interested Party an Air Service Licence.

The Respondent’s Case 14. The Respondent, Kenya Civil Aviation Authority, is a state corporation established under the Civil Aviation Act No. 21 of 2013 with functions and powers set out therein.

15. The Respondent filed a Memorandum of Appearance dated 22nd April, 2024.

16. The Respondent opposed the Petition through the Replying Affidavit sworn by Joseph Koech, the Respondent’s Manager, Air Transport, on 17th July, 2024.

17. The position taken by the Respondent is that the orders sought have been overtaken by events and that it conducted its activities in observance of the principles of natural justice and the right to fair administrative action.

18. The Respondent also depones that the grant of the Air Service Licence was done in compliance with the Civil Aviation (Licensing of Air Services) Regulations, 2018.

19. Section 7 of the Civil Aviation Act No. 21 of 2013 outlines the mandatory functions that the Respondent is responsible for. Specific to the instant Appeal are sections 7 (1)(a), (bb), (cc) and (5): 7 (1) (a): “licensing of air services”7 (1) (bb):“taking measures to minimize, to the extent possible, any disturbance to the public and any adverse effect on the environment from noise, vibration, atmospheric pollution or any other cause attributable to the use of aircraft for the purpose of civil aviation”7 (1) (cc):“performing economic oversight of air services, protecting consumer rights, environment and ensuring fair trading practices”7 (5):“in the discharge of its responsibility for aviation safety and security, the Authority shall co-ordinate its activities with other agencies of the Government including the Kenya Airports Authority, the Department of Defence and the National Police Service”

20. It is the Respondent’s case that they duly complied with the legal procedures in granting the Interested Party its Licence.

21. The Respondent conducted a dedicated public hearing on 13th January 2023 at its auditorium in Nairobi for the purpose of determining the Application by Ishara Air Balloon Safaris Ltd for a grant of Air Service Licence.

22. The Respondent considered all representations, relevant information and supporting documents submitted by objectors.

23. The Respondent was satisfied that the Interested Party had met the requirements of the National Environmental Management Authority as evidenced by the Environmental Impact Assessment Licence.

24. The Respondent avers that when the Appellants sought to be furnished with reasons for issuance of the Air Service Licence, the same were provided.

The Interested Party’s Case 25. The Interested Party made a Notice of Motion application dated 18th April 2024 to be joined in this matter and to file requisite pleadings. The application was supported by the Affidavit of Pilot Sakaitere Naurori sworn on18th April 2024. We allowed the application.

26. The Interested Party’s case is embodied in the Replying Affidavit sworn by Pilot Sakaitere Naurori on 31st May, 2024.

27. It is the Interested Party’s position that the appeal should be dismissed as the Interested Party followed the requisite procedure for obtaining the licence through the following actions:a.Ishara Air Balloon Safaris Ltd. wrote to the County Government of Narok expressing interest to provide air balloon services specifically over Pose and Olkiombo Plains on 8th January, 2018. b.Ishara Air Balloon Safaris Ltd. sought and obtained an environmental impact assessment from NEMA – the National Environment Management Authority through its experts: namely Jecktone Ombuor of Registration No. NEMA 7069 and Lucas Owiti of Registration Number 2549, conducted a systemic examination of the proposed business and opined that as the Interested Party would operate using propane gas, this would be cleaner than butane and petrol for the environment. Propane gas is non-toxic and water soluable. NEMA granted EIA Licence No. NEMA/EIA/PSL/18345. It is submitted that NEMA’s report considered the environmental concerns raised by the Appellants appropriately.c.Ishara Air Balloon Safaris Ltd. submits it conducted public participation through the Respondent using written questionnaires and included the public, the Appellants and County Government before being issued with its approval/ licence.d.Ishara Air Balloon Safaris Ltd. submits that its proposed environmental harm mitigation measures around its landing and take off sites and its clean fuel as part of its application.e.Ishara Air Balloon Safaris Ltd. submits that the objective and subjective parameters of public participation were duly met by the Respondents and that the Appellants views against the licence were considered before and during the public participation forum and these views were incorporated as part of the forum.

28. On 19th February, 2018, the Narok County Government approved the Interested Party’s request to operate the Hot Air Balloon in Maasai Mara National Reserve via an ‘Approval and No Objection letter’; and the County directed Ishara Air Balloon Safaris Ltd. to ‘obtain all necessary approvals’.

B. Hearing 29. Following the directions given by the Tribunal on 23rd July, 2024 and on 1st October, 2024 Parties agreed that the matter be disposed by way of written submissions. All Parties filed their submissions and respective authorities. We shall not reproduce the submissions herein as the upshot of their contentions mirror those in the pleadings of all parties.

C. Issues For Determination 30. The Tribunal distilled the following issues for determination:a.Whether the Tribunal has jurisdiction to hear the Appeal.b.Whether the decision of the Respondent should be set aside.

D. Analysis and Determination Whether the Tribunal has jurisdiction to hear the appeal 31. The Appeal presents a situation where the Appellants filed this appeal and also filed a suit before the Environment and Land Court at Narok (ELC Petition No. E001 of 2023 Skyship Company Ltd & 3 Others v. Kenya Civil Aviation Authority.) seeking inter alia the quashing of the decision to grant Air Service Licence to the Interested Party: Ishara Air Balloon Safaris Ltd., along the grounds of alleged violation of constitutional rights. Whereas we cannot sit to determine the jurisdiction of the High Court and courts of equal status, we find the ELC petition permissible as it seeks prayers pertaining to constitutional rights which are beyond the purview of this Tribunal.

32. On 19th March 2024, we required the Appellants to avail to the Tribunal the pleadings and any relevant order of the ELC at Narok so that we could be guided accordingly. No order staying the proceedings of the Tribunal was availed and the parties were in agreement to proceed on the matters before the Tribunal.

33. The matters in the instant suit relate to the exercise of licensing powers of the Kenya Civil Aviation Authority and as such this Tribunal has due Jurisdiction as per the provisions of Section 69 of the Civil Aviation Act No. 21 of 2013 wherein:The Tribunal shall have the jurisdiction to hear and determine complaints or appeals arising from—(a)any refusal to grant a licence, a certificate or any other authorisation by the Authority or transfer of a licence under this Act or regulations made thereunder;(b)the imposition of any condition, limitation or restriction on a licence under this Act or regulations made thereunder;(c)any revocation, suspension or variation of a licence under this Act or regulations made thereunder;(d)any amount of money which is required to be paid as a fee under this Act or regulations made thereunder;(e)the imposition of any order or direction by the Authority under this Act or regulations made thereunder;(f)consumer protection compliance and enforcement activities related to areas such as right violations, unfair and deceptive practices and unfair competition by air carriers and travel agents, deceptive airline advertising including fare, on-time performance, schedule, code sharing, and violations of rules concerning denied boarding compensation, ticket refunds, baggage liability requirements, flight delays and charter flights or(g)any exercise of powers to make decisions, but not powers in respect of staff employment, granted to the Director-General or the Authority under this Act or regulations made thereunder.

34. Having settled the issue of jurisdiction, we proceeded to address the substantive issue of this appeal.

35. In its submissions, the Respondent raises the issue of res judicata arguing that the matters in question in this matter has been litigated upon and final determination made in Narok ELCLPET E001 of 2023. No final determination of the Narok matter was presented to the Tribunal. We also do not think the principle of res judicata squarely applies in this matter.

Whether the decision of the Respondent should be set aside. 36. It is uncontroverted that the Respondent, after receiving and reviewing the application for an Air Service Licence from the Interested Party, duly caused to be published in the Kenya Gazette the particulars of application in accordance with Regulation 25(1) of the Civil Aviation (Licensing of Air Services) Regulations, 2018.

37. The 1st, 2nd, 3rd and 4th Appellants lodged objections to the licence application pursuant to Regulation 25(2) of the Civil Aviation (Licensing of Air Services) Regulations, 2018 which provides for the same within 21 days after publication of the said Notice.

38. These representations were duly considered by the Respondent and through these and authorized personnel, the Appellants were represented at a public participation forum.

39. On 13th January, 2023, a public participation meeting was conducted by the Respondent at KCAA Headquarters Auditorium where the Respondent’s Air Service Licensing Committee received representations and objections from the members of the public and sector stakeholders.

40. Looking at the totality of the proof provided by the Appellants in contrast with that of the Respondent and the Interested Party, it is our considered view that fair administrative action was employed by the Respondent and it is our determination that the Respondent has satisfactorily established that following initial gazette publication and a call for public participation, the onus is on the Appellants to table their objections and to participate in the processes.

41. We hasten to add that having provided an opportunity for objections, having received them and confirming that it considered them, the Respondent has discharged its responsibility. This can only be set aside if the final decision is contrary to the provisions of the Civil Aviation Act or there is some other legal reason to interfere with that decision. It would be for the Appellants to prove that the Respondent is in breach. They have not done so.

42. On the Appellant’s claim that:The Respondent erred in law and in fact when in publishing Kenya Gazette Notice No. 6959 dated 22nd May 2023, it indicated that the same was a decision relating to particulars previously published in Kenya Gazette Notices No. 15926 of 2022 and No. 2774 of 2023 whereas the subject decision ought to have related to particulars previously published in Kenya Gazette Notices No. 15926 of 2022 and No. 2773 of 2023. This omission by the Respondent is deceptive and contrary to Section 69 (f) of the Civil Aviation Act No. 21 of 2013 and Regulation 28 of the Civil Aviation (Licensing of Air Services) Regulations, 2018. The Tribunal does not consider this material enough to necessitate interference with a substantive decision made by the Respondent. This is a technicality that does not affect the substance. Whereas there is no evidence before us to hold so, we are of the opinion that, it may actually be a typographical error that should not be allowed to affect substance.

43. We note that whereas the subject licence has since expired, we have not been addressed on whether an application for renewal of the same has been made and what the status is.

44. In conclusion, we do not think that sufficient reasons have been brought to the Tribunal to interfere with the decision of the Respondent in granting the Interested Party an Air Service Licence. We, accordingly, decline to set aside the decision of the Respondent.

45. We find the Appeal lacks merit and make the following Orders:a.We dismiss the appeal.b.We order that each party bears its own costs.It is so ordered.

SIGNED AND DELIVERED AT NAIROBI THIS 25TH DAY OF MARCH 2025. In the presence of:PROF. NJARAMBA GICHUKI - CHAIRPERSONHON. VALENTINE KHAMINWA – VICE CHAIRPERSONHON. HASSAN ISSACK HACHE - MEMBERHON. COL. (RTD) JOHN KIPLAGAT KIILI - MEMBERHON. JOHN EKALE ARUMA - MEMBER