21 May 2019

Kenya: High Court Quashes State Ban on Club's Skydiving in Diani

The High Court has quashed a decision by the government to stop a skydiving club from running its activities at its premises in Diani, South Coast.

Justice Eric Ogola quashed the decision and a notice issued by Kwale County Commissioner J K Ngumo directing Skydive Diani club to cease all skydiving activities.

In his ruling, the judge noted that a letter to the club to did not give notice of the decision to have it cease operations.

A Zambian soldier is reported to have died while skydiving in mid-February this year, prompting the government to issue a letter to the club to stop skydiving.

NATIONAL SECURITY

"The court is aware the government has responsibility on national security. There has been enough time to the respondents (Interior ministry and county commissioner) to investigate the issues," said Justice Ogola.

Justice Ogola further ruled that Skydive Diani club is a licensed operator and its business was stopped without any reasons.

The court further noted that there is no official from the club who has been charged in court and that a letter directing it to cease activities had procedural illegalities.

Justice Ogola declined to issue an order for payment of damages by the respondents.

"There was no attempt to prove damages; the restoration of the business by the court should suffice," said Justice Ogola.

In its application, the club argued that it has been in operation from December 2013, creating a new niche in sports tourism.

The club's chairman Gary Lincoln argued that there is a difference between military parachute training and civilian sports skydiving which the club is engaged in.

SKYDIVING

In his affidavit, Mr Lincoln said military parachuting is about landing as quickly as possible while sport skydiving is concerned with spending as much time as possible in freefall to maximize on the period of time the sky diver enjoys in the air.

According to him, prior to the arrival of the Zambia military personnel, the club communicated with Zambia Air Force headquarters who assured them that they had acquired all necessary permissions for them to come into the country.

"As civilians in Kenya, Skydive Diani was not privileged with access or communication between the governments of Zambia and Kenya for the assurances to be qualified as a fact," said Mr Lincoln, a former British Army soldier.

KDF

Mr Lincoln said that over 50 Kenya Defence Forces soldiers are members of the club, using the same facilities at a fee.

Through litigation counsel Nguyo Wachira, the Attorney-General wanted the application by the skydiving club struck out.

The AG argued that Skydive Diani club failed to disclose in its suit documents that it was involved in the training of foreign security officers.

Mr Wachira argued that Skydive Diani did not disclose that it had been paid by a foreign government to conduct air force training.

"The air force training conducted by the applicant violated Section 65 of the Penal Code," argued Mr Wachira.

NOTICE

Mr Wachira further argued that the activities of the club led to the issuance of a notice by the Kwale county commissioner to Skydive Diani club on March 10 to cease all skydiving activities at its premises until further notice.

In his affidavit, Inspector Wesly Lagat of the Directorate of Criminal Investigations said that according to investigations carried out after opening of an inquest file, the military officers were attending a skydiving course conducted by the club's chairman, Mr Lincoln.

"The training was illegal since the trainees were Zambian/foreign military men on Kenyan soil and the (Kenyan) government had not been informed of the training," said Mr Lagat.

According to him, the Zambian Air Force paratroopers indicated that the Zambian government had paid money to Mr Lincoln and Diani SkyDive to train them.

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