https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10051

Haase v Air France & another (Civil Appeal E234 of 2025) [2026] KEHC 10051 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 10051 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Appeal E234 of 2025 D Mburu, J July 2, 2026 Between Caroline Makena Mungiria Haase Appellant and Air France 1st Respondent Klm Royal Dutch Airlines 2nd Respondent (Being an Appeal from the Judgment of the National Civil Aviation Administrative Review Tribunal) dated on 28th January 2025 in NCAARTC No. E005 of 2024) Judgment Introduction 1.This appeal arises from the judgment of the National Civil Aviation Administrative Review Tribunal (‘the Tribunal’) delivered on 28th January 2025 in Nairobi NCAARTC No. E005 of 2024. 2.On 23rd March 2024, the appellant purchased a return ticket from Nairobi to Nuremberg via Paris for €1395.01 and travelled the outbound leg without incident. On 1st April 2024, while checking in at Jomo Kenyatta International Airport (JKIA) for her return flight on Flight KL566 Boeing 787-10 operated by the 2nd respondent, a dispute arose after she crossed behind the counter to select a seat as she desired a window seat. The respondents’ supervisor (Ms. Sylvia Nzioka) intervened, an altercation ensued, and the appellant was offloaded, causing her to miss the flight. 3.It was this set of facts that prompted the appellant to lodge a complaint with the Tribunal. 4.By a statement of complaint dated 12th April 2024, the appellant contended that the respondents breached the contract by denying her the opportunity to board the flight despite purchasing the same, treating the appellant in an indignifying, inhuman and degrading manner, and recklessly and negligently managing travel. Following the encounter, she reported the incident to the JKIA Police Station vide OB No. 02/02/04/2024. 5.By virtue of this, the appellant averred that she suffered economic loss which she particularized as follows: Kshs. 11,300/= to purchase a Jambojet ticket from Nairobi to Mombasa on 14th April 2024 to board a flight to Germany from Mombasa; KShs. 83,785/= for a ticket from Mombasa to Nuremberg through Frankfurt; KShs. 1,350/= for a taxi from her house to JKIA; and KShs. 3,410/= for 3 taxis from JKIA to her house, from her house to JKIA Police Station and back to her house. 6.Furthermore, it was the appellant’s case that she was also unable to attend to her patients scheduled for 1st -7th April 2024. This, she pleaded, adversely affected her professional record, adversely affecting her employment. In addition, it was her case that she subsequently suffered a depressive episode for which she got a sick off for ten (10) days, again prejudicing her employment record. She blamed the respondents for her loss and she claimed:a.General damages for breach of contract;b.General damages for the appellant’s disparaged/ ruined employment record;c.Damages for the emotional and psychological distress, mental anguish and trauma suffered by the appellant on account of the respondents’ negligence;d.Punitive damages for the oppressive and arbitrary conduct/ actions by the respondents;e.Special damages in the sum of €697.505 for Flight KL566 Boeing 787-10 which the appellant was denied boarding, Kshs. 11,300/= and Kshs. 83,785/= for the additional flight charges for the Jambojet ticket to Mombasa and the Lufthansa ticket respectively;f.Special damages in the sum of Kshs. 3,410/= for taxi charges; andg.Costs of the claim. 7.In denying the claim, the respondents filed a defence dated 22nd July 2024 asserting that its duty manager, Ms. Sylvia Nzioka, requested the appellant to stop looking at the seatmap behind the counter for security reasons. However, the appellant rudely refused to leave, which prompted Ms. Sylvia Nzioka to call security. In the meantime, the appellant became more aggressive, shoving Ms. Sylvia Nzioka, at which point the respondents decided to offload the appellant. This, in the respondents’ view, was in line with Article 9(a) of the 1st respondent’s general conditions of carriage for passengers and baggage. In particular, that the 1st respondent may decline to transport a passenger or their baggage if the carriage endangers the security, health, hygiene or good order in the aircraft, especially if the passenger is intimidating, insulting and abusive. In addition, the 1st respondent may decline carriage if the passenger has threatened the well-being of the 1st respondent or its staff or has attempted or has indeed compromised their safety or that of other passengers while booking, checking in for or boarding the flight, on board or during a previous flight. As such, the 1st respondent denied breaching the contract. 8.PW1, Caroline Makena Mungiria Haase, a dentist by profession practising in Bayern, Germany, gave her examination-in-chief, which was a mirror of her witness statement dated 12th April 2024. On cross-examination, she testified that she did not decline to leave behind the counter and that she was not a threat to anyone. It was her case that later she was informed that she was offloaded because she was rude, upon which she lodged a complaint vide an online form to the 2nd respondent’s headquarters in Amsterdam. The same went unanswered. 9.DW1, Sarah Gichuhi, an employee of the respondents, adopted her witness statement dated 8th October 2024 and bundle of documents dated 6th August 2024. On cross-examination, she stated that she relied on Ms. Sylvia Nzioka’s email and her version of events as to what took place on the material day. She also indicated that she was not privy to the considerations Ms. Sylvia Nzioka made before offloading the appellant. She also confirmed that the ticket did not make any reference to the 1st respondent’s conditions of carriage. On re-examination, she clarified that the respondents have a joint venture and hence Article 9(a) of the 1st respondent’s general conditions of carriage applied. When the Tribunal sought clarification, she responded that she did not issue the ticket. Further, the appellant erred by going behind the counter to view the seat map. This, according to Ms. Sylvia’s account, triggered the altercation. 10.By a Judgment delivered on 28th January 2025, the Tribunal framed three (3) issues for determination: whether there was a contractual relationship between the appellant and the respondents; whether there was breach of contract by the respondents; and whether the appellant is entitled to the reliefs sought. 11.With respect to the first issue, it was the Tribunal’s finding that a contractual relationship existed between the parties. 12.As to whether there was breach of the said contract, the Tribunal held that by offloading the appellant, the respondents indeed breached the contract. In addition, the Tribunal stated that the appellant’s version of the happenings of the said day was more credible, noting that the respondents failed to call witnesses to substantiate their contention that the appellant violated the 1st respondent’s general conditions for carriage for passengers and baggage. 13.With regard to the reliefs sought, the Tribunal declined to award general damages stating that the appellant had failed to establish the loss she suffered to warrant such an award. However, the Tribunal awarded special damages as sought and costs of Kshs. 30,000/=. The Appeal 14.Dissatisfied with the Tribunal’s decision, the appellant filed a Memorandum of Appeal dated 25th February 2025 raising the following grounds of appeal, that the Tribunal erred in law and in fact by:i.Misconstruing, misinterpreting and misapplying the law and principles on awarding general damages for breach of contract;ii.Failing to award general damages for breach of contract of carriage;iii.Failing to award punitive damages for the respondents’ oppressive and arbitrary conduct;iv.Delivering a judgment per incuriam disregarding binding precedents from the Court of Appeal awarding general damages for breach of contract without proof of general damages;v.Failing to consider that the respondents did not call a credible witness to controvert the appellant’s testimony;vi.Improperly and inadequately evaluating the evidence on record hence arriving at the wrong conclusion; 15.Consequently, the appellant urged this Court to allow the appeal, award the appellant general damages for breach of contract, general damages for the appellant’s disparaged employment record, damages for emotional and psychological distress, mental anguish and trauma, punitive damages for the respondents’ oppressive and arbitrary conduct. Lastly, the appellant prayed for costs of the appeal and the suit before the Tribunal. The Cross-Appeal 16.Equally aggrieved by the judgment, the respondents lodged a notice of cross- appeal dated 28th October 2025 on the grounds that, the Tribunal erred in law and in fact in:a.Failing to consider the evidence presented by the respondents.b.Ignoring the evidence of Sarah Gichuhi and instead relying on the evidence of Stephanie Steele, who never testified.c.Failing to consider the documentary evidence presented by the respondent.d.Finding that the respondents breached the contract with the appellant.e.Awarding the damages. 17.They therefore proposed that this Court allow the cross-appeal, set aside the Tribunal’s decision and costs of the cross-appeal and proceedings before the Tribunal. Appellant’s Submissions 18.In support of her appeal and in opposition to the cross-appeal, the appellant filed submissions dated 14th November 2025 and supplementary submissions dated 20th February 2026. The appellant submitted that the Tribunal erred in applying common law principles instead of the Montreal Convention, which governs interpretation and apportionment of liability and damages in international air carriage. In this respect, she relied on Mitu-Bell Welfare Society vs Kenya Airports Authority & 2 Others; Initiative for Strategic Litigation in Africa (Amicus Curiae) [2021] KESC (34) KLR for the proposition that the Montreal Convention is applicable in Kenya by virtue of Article 2(5) and (6) of the Constitution. She also cited Peer Coret vs Kenya Airways Limited [2016] KEHC 4254 (KLR) and Frontier Optical Networks Limited vs Ethiopian Airlines & 2 Others [2021] KEHC 142 (KLR) to argue that the applicable law with respect to the apportionment of liability and damages for air carriage disputes is the Montreal Convention. In any event, she submitted, the Court of Appeal in Fit-Tight FA-Steners Limited vs Akiba Bank Limited (Civil Appeal 218 of 2019) [2026] KECA 139 (KLR) held that general damages may be awarded for breach of contract where the respondent’s conduct is oppressive, high-handed, outrageous, insolent or vindictive. In her view, therefore, the Tribunal had no basis to decline her prayer for general damages. 19.Furthermore, she faulted the Tribunal for relying on irrelevant precedents in the place of established jurisprudence on contracts of international carriage. Accordingly, the appellant contended that, had the Tribunal applied Articles 19 and 22 of the Montreal Convention, it would have awarded the appellant general damages. 20.In the appellant’s view, the conduct of the respondents’ staff directly caused the losses she incurred, which losses were foreseeable but disregarded. Further, she argued, as per Dhanji vs Kenya Airways Limited [2019] KEMC 1 (KLR), the respondents could not rely on the liability limit of 6,303 Special Drawing Rights (SDRs) (approximately Kshs. 1,162,700.61/=) following the ICAO’s 2024 review under Article 24. 21.With respect to the cross-appeal, she averred that the Tribunal correctly rejected the respondent’s defence since they failed to call eye witnesses, rendering DW1’s testimony hearsay evidence. In her view, DW1’s testimony did not qualify within the exceptions of Section 33(b) of the Evidence Act, since Ms. Sylvia Nzioka had merely left employment. 22.In any case, pointed out the appellant, DW1 could not satisfactorily explain why they did not present security report or summon any security officer to corroborate her version of events. This, she argued, only meant that such witnesses, if called, would have been adverse to their case as per Section 199 of the Evidence Act. 23.In conclusion, the appellant urged the Court to allow the appeal, dismiss the cross-appeal and award Kshs. 2,000,000/= as general damages. The Respondents’ Submissions 24.In support of their cross-appeal and in opposition to the appeal, the respondents filed their submissions dated 12th February 2026. They crystallized two (2) issues for determination. 25.On whether the Tribunal erred in finding the respondents liable for breach of contract, the respondents responded in the affirmative, stating that by ignoring the respondents’ evidence, the Tribunal erred in law and violated the appellant’s right to a fair hearing. In this regard, they submitted that since Ms. Sylvia Nzioka was no longer in their employment, the Tribunal ought to have duly considered DW1’s evidence insofar as she relied on Ms. Sylvia Nzioka’s email detailing the occurrences of the material day. In their opinion, the said email was made during the normal course of business and therefore squarely fell within the scope of Section 33 of the Evidence Act. What is more, they added, that as per page 41 of the record of appeal which is part of the ticket, the appellant was aware of the conditions of carriage, to wit, that the Warsaw Convention, the Montreal Convention or any other treaty and the carrier’s own contract of carriage applied; that the applicable treaty governs the journey and may limit airline liability; and that passengers may obtain additional protection through private insurance. The respondents further noted that the appellant was a long-time customer and must therefore have known of the conditions. 26.In this connection, they urged the Court to consider the entire body of evidence in exercising its appellate mandate. 27.On the issue of whether the Tribunal erred in failing to award damages for breach of contract, it was the respondents’ submission that should the Court dismiss the appeal, it should find that the Tribunal correctly declined to award general damages, terming it an exact interpretation of the law. Relying on Kenya Tourism Development Corporation vs Sundowner Lodge Limited [2018] KECA 312 (KLR), they posited that general damages are not awardable for breach of contract. Being a contract on international carriage by air, they took the position that the governing law was the Montreal Convention, particularly Article 19 with respect to general damages. However, the measure of damages is a matter of national law as advanced by Malcolm A. Clarke in Contracts of Carriage by Air. They further relied on Article 17 of the Montreal Convention to support the proposition that damages should be left to national law, in this case, Kenyan contract law. 28.In conclusion, they urge the Court to dismiss the appeal and allow the cross-appeal with costs. Analysis And Determination 29.This court has considered the entire record of pleadings and the parties’ submissions as well as the cited decisions. 30.This being a first appeal, the Appellate Court is under a duty to reconsider and re-evaluate the evidence and draw its own conclusions. The court must take great exception with respect to the fact that it has neither seen nor heard the witnesses. 31.In the case of Gitobu Imanyara v Attorney General (2016) eKLR, the court set out the principles guiding a first appellate court as follows:-‘An appeal to this court by way of retrial and the principles upon which this court acts in such an appeal are well settled. The court must reconsider the evidence, evaluate itself and draw its own conclusion though it should always bear in mind that it has never seen nor heard the witnesses and should make due allowance in this respect’. 32.As such, this court is not bound to the trial tribunal’s findings of fact if it appears that the tribunal has clearly failed on some account of particular circumstances or probabilities materially to estimate the evidence. 33.Bearing the above in mind, this court has come up with the following issues for determination:-a.Whether the respondents were liable for contractual breach?b.Whether the appellant is entitled to general damages for breach of contract?c.Who is entitled to costs? 34.The issue of existence of a valid contract has not been disputed by the parties. However, for this court to determine the issues framed for determination, it must examine conclusively whether there was a contract between the appellant and the respondent. 35.Article 3(2) of the Convention for the Unification of Certain Rules Relating to International Carriage by air (Warsaw Convention) provides that the passenger ticket shall constitute prima facie evidence of the conclusion and conditions of the contract of carriage. 36.In light of the foregoing, there is no doubt that the appellant entered into a contract of carriage with the respondents. The contract is evidenced by the air tickets adduced by the appellant appearing on pages 28-43 of the record of appeal. The respondents do not deny that they issued the air tickets. As such, a valid contract existed between the appellant and the respondents. 37.Having established that there was a valid contract between the parties, a contractual breach could only occur where either of the parties failed to uphold its obligations. Generally, airline contractual breaches arise from violating the terms of the contract by denying passengers boarding, causing excessive unexplained delays, cancelling tickets unexpectedly, and losing cargo. 38.In the case of Haji Asadu Lutale vs Michael Ssegawa (2009) the court observed that the breaking of a contractual obligation is by failing to perform one’s promise, by repudiating it or by interfering with another party’s performance. 39.The breach of contract claimed by the appellant is one of failing to fulfil a promise. The appellant submitted that the respondents breached their end of the bargain by offloading her and not facilitating her flight as scheduled. On the other hand, the respondents submitted that there was no breach of contract and that the applicable treaty governs the journey and may limit airline liability; and that passengers may obtain additional protection through private insurance. The respondents further noted that the appellant was a long-time customer and must therefore have known of the conditions. 40.The respondents therefore submitted that their offloading was justified as a measure for security reasons. This court, however, notes that where a defence is not satisfactorily substantiated by evidence, the same remains a mere denial and cannot form the basis for a determination. 41.In light of the foregoing, I find that indeed the respondents breached their contract by arbitrarily offloading the appellant. I agree with the tribunal’s findings that the respondents are liable for breach of the contract. 42.Whether the appellant is entitled to an award of general damages for breach of contract is a question of law. General damages are awarded at the court’s discretion. In the matter of Regnoil Kenya Limited vs Karanja, Appeal 534 of 2019 (2023) eKLR, the court held that general damages are not available for breach of contract and that loss must be specifically pleaded and proved. Damages for breach of contract are quantifiable and cannot be pleaded without proof unless exceptional circumstances exist. 43.The appellant submitted that apportionment of liability and damages for air carriage disputes is governed by the Montreal Convention and that the tribunal erred in relying on the national jurisprudence available on the award of general damages. 44.Moreover, she submitted that the Court of Appeal in Fit-Tight FA-Steners Limited vs Akiba Bank Limited (Civil Appeal 218 of 2019) [2026] KECA 139 (KLR) held that general damages may be awarded for breach of contract where the respondent’s conduct is oppressive, high-handed, outrageous, insolent or vindictive. In her view, she submitted that the Tribunal had no basis to decline her prayer for general damages and urged the court to allow the appeal and award general damages of Kshs 2,000,000/=. 45.On general damages, the respondents submitted that general damages are not awardable for breach of contract. They submitted that the subject matter being a contract on international carriage by air, the governing law was the Montreal Convention, particularly Article 19 with respect to general damages. In addition, they submitted that the measure of damages is a matter of national law, as advanced by Malcolm A. Clarke in Contracts of Carriage by Air. They further relied on Article 17 of the Montreal Convention to support the proposition that damages should be left to national law, in this case, Kenyan contract law and agreed with the tribunal’s findings on this issue. 46.Article 19 of the Montreal Convention provides that the carrier is liable for damage occasioned by delay in the carriage of passengers. Nevertheless, the carrier is not liable for damage occasioned by delay if it proves that it took all necessary measures to avoid such damage. 47.In the case of Scott v Thomas Cook Tour Operators Limited (2014) UKSC 15, the Supreme Court, in determining the matter, expressly stated that the Montreal Convention allows compensation for physical bodily injury, and baggage delay but not awards for feelings, emotional distress or humiliation. As such, the damages under Article 19 are limited to pecuniary losses that can be pleaded and proven. 48.In light of the above, this court finds that both the Montreal Convention and the Kenyan Jurisprudence require proof of substantial loss or exceptional circumstances to award general damages in breach of contracts. Mere frustration or inconvenience caused by the respondent would not automatically result in a compensable general damage unless proof of physical injury is proven. 49.Therefore, this court finds that pure psychological harm unaccompanied by physical harm would not be a basis for awarding general damages where a party to a contract fails to fulfil its obligations. This court agrees with the tribunal’s findings on this issue. 50.Punitive damages are awarded to deter future arbitrary and unconstitutional conduct. The primary purpose of awarding damages in contractual breaches is purely compensatory, aimed at restoring the affected party to their initial position before the breach occurred. 51.In the case of Kenya Tourism Development Corporation vs Sundowner Lodge Limited eKLR, the court held that punitive damages are not recoverable for pure breach of a contractual obligation unless it is proved that the breaching party’s conduct was extremely oppressive and unconstitutional. 52.Moreover, Article 29 of the Montreal Convention provides that in any cause of action for damages in the carriage of passengers, baggage and cargo, punitive, exemplary or any other non-compensatory damages shall not be recoverable. 53.The upshot is that the appellant’s claim for punitive damages lacks merit and is hereby dismissed. 54.In conclusion, this court finds that both the appeal and the cross appeal lack merit and I hereby enter judgment in the following terms:i.The appeal dated 25th February 2025 lacks merit and is hereby dismissed.ii.The cross-appeal dated 28th October 2025 lacks merit and is hereby dismissed.iii.The Judgment of the National Civil Aviation Administrative Review Tribunal) dated on 28th January 2025 in NCAARTC No. E005 of 2024) is hereby upheld.iv.Each party to bear its own costs of the appeal.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 2ND DAY OF JULY 2026.DAVID MBURUJUDGE