i. Jurisdiction under article 163(4)(a) of the Constitution
39.The jurisdiction of this court to hear and determine this appeal has been questioned by the respondent in its supplementary submissions, to the effect that the issues framed in this appeal are not the same issues that were the subject of determination by both courts below; and that the appeal as framed is res judicata as it deals with issues which were conclusively heard and determined by the High Court in JR No 89 of 2009, Republic v Managing Director, Kenya Airports Authority ex parte Patrick Thoithi Kanyuira, which decision remains unchallenged to this date.
40.The statement made many decades ago by the Court of Appeal in the case of Owners of the Motor Vessel “Lillian S” v Caltex Oil, (Kenya) Ltd  KLR 1), that “Jurisdiction is everything. Without it, a court has no power to make one more step” was perhaps an echo in our time of the words in the United States of America Supreme Court decision of 1915 in the case of McDonald v Mabee, 243 US 90,91 (1915), where that court explained that, ‘Jurisdiction is power.’ In its absence, the court can do nothing but dismiss the case. Without jurisdiction, the court cannot proceed to judgment on the merits; if it does, the result is coram non judice-a nullity, the court rendered. See also this court’s decision in Samuel Kamau Macharia & another v Kenya commercial Bank & 2 others, SC Application No 2 of 2011;  eKLR, where it was emphasized that a court’s jurisdiction flows from either the Constitution or legislation or both; that a court may not arrogate to itself jurisdiction through the craft of interpretation or by way of endeavours to discern or interpret the intentions of Parliament, where the legislation is clear and there is no ambiguity; and that Parliament cannot confer jurisdiction upon a court beyond the scope defined by the Constitution.
41.It is now settled, from the plain reading of article 163(4) and a long line of decisions of this court, that appeals from the Court of Appeal will lie, as of right to this Court under article 163(4) of the Constitution, if they involve constitutional interpretation and application, or upon certification, by either the Court of Appeal or this court, that matters of general public importance are involved.
43.The appeal before us, we confirm, is brought as, “In the matter of articles 24(1)(2) and (3) and article 40 of the Constitution of Kenya”. It specifies articles 24(1)(2) and (3) and 40 as its linchpin. The claim for violation of the appellant’s constitutional right to property and for compensation runs through the 26 paragraphs of the petition. There were specific prayers in that regard.
44.Before the High Court the crux of the appellant’s claim was the alleged restriction of his right to develop his land contrary to article 40(2)(b); deprivation of his rights and interest over the suit property contrary to article 40(3)(b)(ii); and subjecting him to unreasonable administrative action by the respondent contrary to article 47(1), all of which he contended exposed him to loss and damage for which he believed entitled him to compensation. Upon dismissal of his petition by the High Court, the appellant’s appeal to the Court of Appeal was, once again anchored on articles 24, 40 and 47 of the Constitution.
45.It is therefore evident that the appellant’s claim has throughout been based on the interpretation and application of the Constitution, specifically that his property rights under article 40 were violated by the cessation order and that he was entitled to compensation under article 23 as read with article 24 of the Constitution. It is for this reason that we arrive at the conclusion, on this point, that the court has jurisdiction under article 163(4)(a) of the Constitution to determine this appeal.
46.We also note that the appellant as one of his grounds of appeal, faults the Court of Appeal for failing to apply the provisions of the fourth schedule of the Constitution that provides for the functions and powers of the County Government to include county planning and development, namely land survey, mapping and housing, a function conferred upon a county government by the Constitution which according to him, cannot be divested to a state organ such as the respondent on the basis of statute. We agree with the respondent’s contention that this issue is being raised for the first time before this court and for this reason, we disallow it.
47.On the second limb of its argument, the respondent essentially contends that the appeal is res judicata, the issues between the parties having been fully settled in JR No 89 of 2009: Republic v Managing Director, Kenya Airports Authority ex parte Patrick Thoithi Kanyuira, which decision was not set aside on review or appealed.
48.On the validity of cessation order, Wendo, J was categorical that;
49.When an objection was raised before Lenaola, J as he then was, that the issues in the petition before him were res judicata, having been determined by Wendo, J he was of a different opinion and dismissed the objection thus;
50.Whereas the learned judge was right in drawing the distinction between the causes of action in the two suits, that in one the appellant had sought the quashing of the cessation order by certiorari, while the petition before him was for compensation for violation of the appellant’s constitutional rights, to conclude that the matter was not res judicata, the respondent’s concern was specific to the finding on the validity of the cessation notice. Did Wendo, J make any finding on the validity of the notice?
51.We readily find, on this question that one of questions posed in the review application was whether the respondent acted outside its mandate, to which Wendo, J as shown in the above passage [paragraph 48] was clear that the cessation order was properly issued by the respondent. To that extent, that issue was res judicata. It was a decision in rem, confirming that one of the bodies whose authorisation had to be obtained before making any development in the vicinity of the airport was the respondent.
52.But like the Court of Appeal, we are of the view that, part of what was raised before Lenaola, J, which was also the subject matter in the Court of Appeal was the effect of the cessation order on the appellant’s project, and whether it was an act of interference with the use of private property which would in turn entitle the appellant to be compensated.
53.In affirming the High Court in the passage below that the appellant’s fundamental right to property under article 40 was not violated; and that there was no basis upon which an order could be made for compensation for the losses and damages allegedly sustained as sought in the petition, the Court of Appeal concluded that;….…Indeed, from the appellant’s own conduct, he must have been aware of this requirement and that would explain why he sought the approval in the first place. As noted earlier, the approval sought was denied and an appeal against that refusal was also denied.In our view, the construction of the said structures, and buildings in express and flagrant defiance of the respondent’s decision, was a high risk venture, whose outcome the appellant must have foreseen. Any prudent person would have ensured that he overcame that hurdle of obtaining all the necessary approvals, before sinking his funds into such a project, or even taking a loan to finance the same. If he was unhappy with the decision of Wendo, J. of failing to quash the cessation order, he had recourse of preferring an appeal against the decision, which he did not do.We find that indeed, the appellant was in the wrong for neglecting to obtain the necessary approval before embarking on his project. We find that he was solely to blame for the loss that befell him, as he deliberately aggravated his loss by failing to heed the warning given by the respondent as demonstrated earlier. He even conceded before the trial court that by the time the denial of the approval by the respondent was communicated to him, the project was at excavation stage.If indeed he was concerned about mitigating his loss, he should not have proceeded with the project until the issue of the approval was resolved. We find that indeed, the appellant was the author of his own misfortune. He cannot be allowed to benefit from his intransigence.In as much as we sympathise with the appellant for his loss, neither the law, nor equity can come to his aid”.
54.The three courts having come to the conclusion that the appellant ought to have heeded the caution in the execution of the project on the suit property, can he claim compensation for any loss he has suffered on account of the so-called unlawful action by the respondent? It is to this question that we now turn.
ii.Whether the cessation order issued by the respondent amounted to an unlawful interference with the appellant’s private property.
55.The right to own property and develop it to its full potential is a human right, recognized not only by the Constitution but also by international and regional instruments that Kenya is a party to, like the Universal Declaration of Human Rights, International Convention on the Elimination of All Forms of Racial Discrimination, the African Charter on Human and Peoples’ Rights.
56.Article 40 (1) of the Constitution guarantees every person;a.of any description; andb.in any part of Kenya”;and further that, no law can be enacted that permits the State or any person to arbitrarily deprive a person of any property or any interest in, or right over, any property, or
57.The appellant is the holder of a certificate of title to the suit property issued under the repealed Registration of Titles Act, which by section 23 guaranteed its sanctity by providing that the certificate would be conclusive evidence that the person named therein as proprietor of the land is the absolute and indefeasible owner thereof, only subject to the encumbrances, easements, restrictions and conditions contained therein or endorsed thereon. The terms of the grant of the title permitted the appellant to construct housing units within six months of issue and the suit property was to be used only for residential purposes.
58.Out of prudence and judgment, it appears to us, the appellant sought approval from regulatory agencies, that in his view were necessary, such as City Council of Nairobi, NEMA, Kenya Civil Aviation Authority and the respondent. On January 10, 2008 the appellant wrote to the Airport Manager, Wilson Airport seeking approval to develop 24 maisonettes. The appellant wrote again on January 18, 2008, upon which receipt the respondent advised him, by a letter dated January 24, 2008, that the property lies within the approach funnel to Wilson Airport’s main runway and the appellant’s development would pose a threat to aviation safety and security. The approval, for that reason was rejected. Several letters were exchanged between the parties. The respondent addressed the appellant again by its letter of 19th March, 2008 in which it directed the appellant not to proceed with further construction. This was followed by another letter of April 16, 2008, a subsequent on May 8, 2008, all of which reminding the appellant that he was proceeding with the project without approval.
59.As a matter of fact, at one point there were attempts to settle the controversy by the respondent offering to the appellant an alternative property. The end of those negotiations are not apparent from the record. On record is a letter dated November 4, 2008 from the respondent to D Njogu & Company Advocates, advocate for the appellant indicating that respondent was considering acquisition of the suit property in exchange for allocation of land at an alternative suitable site for the purpose. D Njogu & Company Advocates by a letter dated December 8, 2008 responded by accepting the proposal.
60.The real issue here, however is whether the cessation order was valid, or asked differently, whether the respondent had the power and authority to stop the development in the suit property. If the answer is in the affirmative, that will be the end of the appellant’s claim and a closure to this controversy and if in the negative, it will also mark the end of his long journey in search of justice, with the only question being the quantum of compensation.
61.The KAA Act is expressed in the long title to be an Act of Parliament to establish the Kenya Airports Authority, to provide for the powers and functions of the Authority and for connected purposes.
62.The Authority which is established under section 3 is authorized, pursuant to sections 14, 15 and 16 of the KAA Act, to enter upon any land to conduct a survey, to remove or cause to be removed any obstruction, materials, structures or buildings, including slaughterhouses which are likely to attract birds that may be hazardous to aircraft operations; to enter upon any land to prevent accidents by;a.cutting down or remove any tree or other obstruction, not being a building; orb.executing such other works as may be necessary to prevent the occurrence of any accident or to repair any damage caused as a result of any accident.
63.The Authority or any of its authorized employee may also enter upon any land and alter the position of any pipe, electric, telephone or telegraphic wire after giving reasonable notice. These are no doubt wide powers to be exercised by the Authority upon private land, with the sole aim of making airports adjacent to private land secure and safe.
64.But at the heart of this controversy is subsection (3) which we now set out here below;
65.Prior approval of the Director is a necessary pre-condition and requirement, from our plain reading of this subsection. Only for the purpose of demolition or modification of any building within the proximity of the airport which may pose aviation risk, is the respondent required to obtain an order of the court. It was precisely because of this that the respondent filed in the Environment and Land Court (ELC) ELC No 98 of 2011 pursuant to section 15(3) an application dated October 18, 2011, seeking an order of the court to demolish the structures on the suit property, which we have explained stood spent after the appellant ingeniously withdrew the suit taking away the forum for hearing of the application.
66.Read in the context of the statute, all the powers vested in the respondent by sections 14, 15 and 16 aforesaid, we reiterate, are aimed at guaranteeing the safety of aircrafts, vehicles and persons using the aerodrome as well as to prevent danger to the public. There is, therefore no logic in the argument that there was no basis for the respondent to stop the construction without evidence of how it would interfere with aviation safety and security.
67.In the instant case, however, there was proof presented to the trial court at the locus in quo by three pilots that indeed the construction would be a danger to aircrafts using Wilson Airport. The pilots Richard Kimeu Ngovi, a pilot with over 30 years experience, Captain Gad Kamau, an Aviator (pilot) also of over 30 years in the industry and Captain Robert Chepkwony of almost a similar experience in the field, who shared his practical ordeal following a plane crash in which he was personally involved near the suit property; that upon crashing, his aircraft burst into flames that would have consumed the suit property had it been constructed.
68.Prior approval or rejection must, of necessity be based on the independent assessment by the respondent of architectural designs of any proposed construction from which matters like the height of the proposed building can be ascertained. It would be irrational for an investor to put up a building and then seek authorization with the attendant risk of rejection by the authorizing agency.
69.Purely just as an example, on record are letters exchanged between the respondent and one Mohamed Abdi Shukri, a developer and owner of LR No. 209 13711, South C who was in a similar predicament as the appellant, which confirms that, it was from the architectural drawings that the respondent was able to decide whether to approve or reject the project.
70.Because the suit property is adjacent to the airport, it is common factor that the appellant sought approval from the respondent pursuant to the provisions of section 15 of the KAA Act. At no point, in the course of exchanging correspondence did the appellant question the respondent’s authority to control the use of land adjacent to airports. Indeed, in the passage reproduced at paragraph 49, the learned trial Judge got the feeling that the appellant was not challenging the power of the respondent to control structures around the airports, or even the validity of the cessation order. And to the extent that the appellant himself sought from the respondent prior approval on January 10, 2008, was itself evident that he appreciated and recognized the authority of the respondent. It is that acknowledgment that would explain why, after the approval was denied, the appellant moved to court to challenge the decision, and when the court declined to sanction the unauthorized development, he abandoned that cause and initiated a new one which he later withdrew.
71.Even as he pursued the matter in court, there is uncontroverted evidence that the appellant, without approval of the respondent went on with the construction as if nothing was happening in court regarding this very project. An application in ELC No 98 of 2011 by the respondent for the demolition of the structures was frustrated as explained elsewhere in this judgment.
72.It is to us therefore as perplexing as it is disconcerting that the appellant would, after all the foregoing exchanges and engagement with the respondent turn around and claim that the respondent had no role in approving his project and insist that, the KCAA, as the only body, in law from which he required approval, and from which he had in fact obtained such authorization, there was no basis for the respondent to insist on compliance with the cessation order.
73.It is equally unfortunate for the appellant to contend that, in any case the project having also been approved by the then City Council of Nairobi on November 28, 2011 and by NEMA on March 11, 2008, he did not require approval from the respondent. We need to point out at this stage that, by the time the appellant applied to the respondent for approval on January 10, 2008 and even as NEMA gave its approval the appellant had commenced the construction in 2007. We note also specifically that the letter of March 19, 2008 written to the appellant by the respondent, in which the latter continued to remind the appellant that the continued construction was in defiance of the cessation order, was copied to the Director General KCAA.
74.While we believe that, apart from the respondent, there are other regulatory agencies whose authorization would be necessary for and must be obtained before any development can be commenced within the proximity of the aerodrome areas in Kenya, such as the KCAA, NEMA and NCC, it is the approval of each that would give a licence for any proposed develop in such areas. One or two approvals without the concurrence of the other will not do, hence the need for close coordination between all these bodies to avoid anarchy, particularly in such sensitive areas as airports. Disjointed approach will certainly compromise the security and safety of the public. We shall shortly return to this question of coordination of licensing process.
75.Sections 9 of the repealed Civil Aviation Act which is worded in the same terms as section 56 of the Civil Aviation Act, 2013, and despite the provisions of any “law, or the terms of any deed, grant, lease or license concerning the use and occupation of land, the Cabinet Secretary may, where he considers it to be necessary in the interests of the safety of air navigation, by order published in the Gazette, prohibit the erection within a declared area of any building or structure above a height specified in the order”. "Declared Area" is defined to mean “any area adjacent to or in the vicinity of an aerodrome”.
76.On the other hand, section 10 of the repealed Act, which is reproduced in section 57 of the 2013 Act, if the Director-General considers that provisions for civil aviation safety and security or efficiency of air navigation ought to be made, whether;
77.Further, the Cabinet Secretary under section 82(2)(x) may regulate or prohibit in the vicinity of any aerodrome the emission or causing of smoke, soot, ash, grit, dust and any other substance whatever which obscures or may obscure visibility.
78.Submitting before us learned counsel for the appellant contended that, since August 9, 2019 after obtaining authorization from the KCAA, the construction commenced and has been going on; that as a result the appellant made a decision to pursue compensation from the respondent for lost earnings for the entire period when the project was stopped by the cessation order. This claim was however denied by learned counsel for the respondent who has maintained that if it is indeed true that the construction is going on, then it is in defiance of several letters issued by the respondent to the appellant.
79.We turn to NEMA, which according to the appellant is another body vested with the authority to approve and indeed did approve the project upon being satisfied that it met all environmental quality standards and that upon systematic examination, NEMA found that the project would have no adverse impacts on the environment.
80.NEMA is responsible for promoting the integration of environmental considerations into development policies, plans, programmes and projects with a view to ensuring the proper management and rational utilization of environmental resources on a sustainable basis. This in turn ensures the improvement of the quality of human life in Kenya. See section 9(2)(a) of the Environmental Management and Coordination Act (EMCA). In this regard, environmental considerations are equally fundamental before any development approval can be granted, hence the requirement for environmental impact assessment under section 58 (1) of the EMCA which stipulates as follows:
81.We have emphasized the fact that the approval must be obtained prior to commencement of a project; that it is the duty of the proponent of a project to undertake an environmental impact assessment study and submit a report for consideration by NEMA; that the approval of a proposed project by NEMA is subject to approval by any other body authorized to do so by any law; and that approval by NEMA is subject to environmental impact of the project.
82.Similarly CCN, the predecessor of Nairobi City County, as a local authority had the sole mandate of physical planning in the city. Under the repealed Physical Planning Act, no development within the city could be carried out without a development permission granted by NCC. Indeed, it was a punishable offence to contravene that requirement. See section 30. Therefore, any person intending to carry out any development in the city could only do so after obtaining what the Act termed “development permission” from the Director of Physical Planning.
83.Before granting permission NCC was required by section 32(2) to consult several bodies including;b.the Commissioner of Lands;b.the Chief Engineer (Roads), Ministry of Public Works and Housing;c.the Chief Public Health Officer of the Ministry of Health;b.the Director of Agriculture;b.the Director of Water Development;b.the Director of Livestock Development;b.the Director of Urban Development;b.the Chief Architect, Ministry of Public Works and Housing;b.the Director of Forests; andb.such other relevant authorities as the Local Authority deems appropriate”. [our emphasis]
84.We have set out the functions and powers of all the three bodies above relevant to this dispute to demonstrate their crosscutting roles. Each of these multi-actor regulatory agencies inevitably involve highly-specialized expertise, with different legal mandate and framework. Their mandates may at times overlap or contradict. That is why, instead of looking at single institutions, for instance NEMA, one must map the full and relevant existing legislative spectrum to appreciate their linkage.
85.As should be apparent from the arguments of the parties, the fragmentation of roles between the regulators only goes to blur their jurisdictional boundaries, often making it difficult to decipher when the jurisdiction of one regulator ends and that of the other begins. So as to avoid this, the agencies must develop and maintain synchrony with each other.
86.Such synergy was created, for instance in section 10(1) of the repealed Civil Aviation Act, where the National Civil Aviation Security Committee responsible for, among other things, co-ordinating security activities between agencies and other organizations, airports and aircraft operators and other entities concerned with or responsible for the implementation of various aspects of the civil aviation security was established. Its membership, appointed by the Minister, included the respondent. Section 32(2) of the repealed Physical Planning Act is another example. See paragraph 82 above.
87.Section 6 of the Physical and Land Use Planning Act, 2019, which repealed the Physical Planning Act establishes the National Physical and Land Use Planning Consultative Forum, whose functions are, inter alia, to provide a forum for consultation on the national physical and land use development plan; promote effective co-ordination and integration of physical and land use development planning and sector planning; and consider national security and advise on strategic physical and land use development projects of national, inter-county, county, or transnational importance.
88.It is perhaps in acknowledgment and appreciation of the need for synergy between the regulating agencies that NEMA, for instance, in granting authorization to the appellant in the letters dated March 11, 2008 made it clear in paragraph 4, that the approval was subject to the appellant complying with all the relevant principal laws, by-laws and guidelines issued for the development of the project by all relevant authorities. In the subsequent letter of July 7, 2008, NEMA was specific, once more in paragraph 4, that the appellant was to comply, not only with the principal laws and by-laws but also with “guidelines issued for development of such a project within the jurisdiction of Kenya Airport Authority, Kenya Civil Aviation Authority, Nairobi City Council, Ministry of Housing, Ministry of Lands, ……and other relevant Authorities”.
89.If further evidence to show that the regulatory agencies must work and that in this case they did work in coordination is required, one will be found in a letter written on January 24, 2008 by the respondent in response to the Director General KCAA’s letter explaining to the latter that it had not approved the on-going developments on the suit property for the reason that it lay within the approach funnel of the main Runway of Wilson Airport.
90.It is therefore surprising that there would be an approval by KCAA that the appellant is exclusively relying on to continue with the construction in the absence of one from the respondent. If that be the case, and in view of what we have said, regarding the appellant’s efforts to obtain an approval from the respondent, then we are afraid, he is on a bad and unhelpful frolic.
91.On this question, and for the foregoing reasons, we have no difficulty in arriving at the conclusion that the respondent lawfully and within the remit of the Constitution}} issued cessation order in issue.