The Syokimau issue and the demolition of houses around airports has caused a lot of destruction and damage to people.
The argument justifying the demolitions is that some people had encroached on Kenya airports authority land.
The question left in people’s minds is why the Ministry of Lands issued title deeds in the first place and stood back and allowed people to construct their homes on land alleged to belong to KAA.
The ministry officials have alleged corruption and forgeries, opening a can of worms and a blame game. Meanwhile the land owners continue to suffer.
I chose not to write on the Syokimau demolitions earlier as it is an emotive and amorphous issues, with many questions left unanswered.
Bu tI learnt a few facts from aviation law experts that give KAA wide ranging powers, especially when it comes to land issues.
It is necessary to highlight the relevant sections of the Kenya Airports Authority Act especially when it comes to how far they can go in demolitions and land acquisitions.
Land around airports and aerodomes raises the sensitive issue of security not only due to terrorism and other acts of war but also due to the nature of the aviation sector. Safety and security are of primary concern to any regulator.
Other than terrorism and acts of war, other critical issues are hazardous animals or structures standing on a flight path.
The flight path of any plane landing at JKIA begins all the way from Ngong Hills. This gives KAA a lot of power to deal with land as far as Ngong Hills.
Below are sections of the KAA Act that investors need to be aware of .
Section 14 authorises KAA to enter any land, survey it and remove objects which are likely to attract birds and cause a hazard to aircraft. The costs of such removals are borne by the land owner.
The Act gives KAA authority to deal with any land, not just the one surrounding an airport.
Perhaps the argument would be what an obstruction constitutes.
Is that obstruction likely to attract birds and even so would that create a hazard to aircraft.
For example dumpsites located on a flight path would definitely be an obstruction that would attract birds and pose a hazard to aircraft.
In such a case the regulator can file an action against the municipal council under this section. But the provision is clear and relates to hazards caused by birds only.
Section 15 is a bit wider and authorises KAA to enter into any land and act to prevent aircraft accident. Once again this power relates to any land and not just that surrounding the airport—for example a person putting up a sky scraper on a flight path or doing any other hazardous activity on a flight path.
KAA is authorised under this provision to take action to remedy the situation, But most important to developers and investors is Section 15 (3) which bars development on a property that can interfere with any of KAA services unless a licence is issued by KAA.
This means that for land owners around an airport, part of the due diligence includes ascertaining whether the developer has been issued with a licence to construct from the KAA.
Developers must ensure that the licence is issued before construction begins.
Once one has a licence, he can always argue his case successfully provided that he shows that he adhered to the terms and conditions of the licence.
Under Section 15 KAA may apply to the court for an order of demolition of any such structures that are likely to interfere with its services and also apply to the court for costs of such demolition.
Not only does KAA have wide ranging powers over such land, but the demolition is also done at the land owner’s costs.
Maybe then what is left is to argue if the structures on the land are hazardous to aircraft for them to warrant a demolition.
The land owners can always argue that their structures are not likely to pose a hazard to aircraft on a flight path and can also say the developments do not in any way interfere with the operations of the authority.
The burden of proof will remain with the authority.
Ms Mputhia is an Advocate with Muthoga Gaturu. firstname.lastname@example.org