BY SAM ALFAN.
Weston Hotel now wants a petition filed by Kenya Civil Aviation Authority over the controversial land on which the hotels stands on be struck out arguing that it was filed in the wrong forum.
Senior Counsel Ahmednassir Abdullahi wants the Environment and Land court to dismiss the petition saying the court lacks the jurisdiction to determine the dispute.
The Hotel said the dispute had already been determined by a commission of competent jurisdiction coupled with the express and mandatory provision of the constitution of 2010 and the National Land Commission.
He said the Act expressly provides a detailed process of how to handle disputes if the genre before the court and the same cannot be ignored or wished away by KCAA and the court.
Ahmednassir says that the Environment Land court lacks the jurisdiction to hear the matter and is of the considered opinion that the court must lay down its tools forthwith to dismiss the suit for the said want of jurisdiction.
“The constitution and relevant statutes set out a detailed procedure and process for seeking redress and the petitioner (KCAA) has already pursued that process and procedure halfway,” he said.
Weston hotel contends that the process and procedure are mandatory and court is lawfully obliged to order the KCAA to finalise or pursue that process and procedure to the end and constitution requires the due process must be followed and it also entrenches the hotel right to enjoyment of equal protection of the law.
The hotel argued that on October 29, 2018 voluntarily filed a claim with the National Land Commission seeking to recover the suit property and Weston hotel responded. After the hearing of all parties, NLC on February 1, 2019 served all parties with determination.
“The expressly prescribes a statutory procedure for pursuit by persons aggrieved with determinations issued by the NLC being an appeal to the Environment and Land court which appeal KCAA has failed to file and instead filed a fresh petition.
The hotel says the suit by KCAA is a misuse of the court process and ELC court lacks the requisite jurisdiction to hear and entertain the instant petition.
“The petition is an abuse of the court process and the petitioner is obligated to adhere to the law and not lodge multiple claims in different forms and in the interest of justice that the petition be dismissed” urged the hotel.
Weston hotel director Michael Nzile filed an affidavit supporting the application seeking to dismiss KCAA petition.
