[2024] KENCCART 1195 (KLR)

Chepkorir v Qatar Airways (Complaint E002 of 2022) [2024] KENCCART 1195 (KLR) (6 August 2024) (Judgment)

Neutral citation: [2024] KENCCART 1195 (KLR)

Republic of Kenya

In the National Civil Aviation Administrative Review Tribunal

Complaint E002 of 2022

G. Njaramba, Chair, V Khaminwa, Vice Chair & HI Hache, Member

August 6, 2024

Between

Linda Nelly Chepkorir

Complainant

and

Qatar Airways

Respondent

Judgment

A. Introduction Complainant’s case 1. The Complainant purchased air tickets from the Respondent on 1st July, 2022 for travel on 3rd July, 2022 from Nairobi to Cyprus through Doha and Ankara to Ercan International Airport to attend her daughter’s graduation on 6th July 2022, then travel back to Kenya on 15th July,2022.

2. She boarded the Respondent’s aircraft on 3rd July 2022 at Jomo Kenyatta International Airport, Nairobi and arrived in Doha as scheduled. The Respondent, however, refused to allow her to board the flight from Doha to Ankara and she was repatriated to Kenya and denied further travel on account that she did not possess a valid visa to enter Cyprus.

3. The Complainant avers that she disputed the repatriation and informed the Respondent that her Kenyan Passport allowed her to procure a Cyprus Visa upon arrival which fact, she said, had been explicitly explained and confirmed by the Cyprus Consulate and Kenyan embassy.

4. The Complainant states that she went to the Respondent’s Nairobi office and the Respondent acquiesced that it had erroneously denied her travel and repatriated her. She avers that the Respondent guaranteed that she would be allowed to travel later that night. The Respondent did not allow her to travel. The Complainant further stated that the Respondent failed, refused and/or neglected to provide her with accommodation, food and/or transport services during her entire ordeal in Doha and as well as her repatriation to Kenya.

5. The Complainant made alternative travel arrangements, by Turkish Airlines and managed to secure a return ticket to travel, through Istanbul, to Cyprus arriving on 6th July, 2022 being the actual date of her daughter's graduation ceremony. The Complainant further avers that whilst travelling with the Turkish Airlines she was seamlessly allowed to enter North Cyprus on the basis of her Kenyan passport and subsequently allowed to procure a Visa upon arrival. The name ‘North Cyprus’ appears for the first time at paragraph 13 of the Complaint. We shall come back to its significance later in this judgement.

6. The Complainant further states that the Respondent lost her luggage and she duly notified the Respondent. Due to the delay in locating and delivering her luggage she was forced to purchase new clothing, personal items and medicine when she arrived in Cyprus. The Respondent delivered her luggage six (6) days later and the Complainant stated that her luggage was damaged and her personal belongings and items were missing. The Complainant also states that she was forced to extend her stay in Cyprus from 15th July 2022 (being the day of her initial return ticket with the Respondent) to 23rd July 2022 (the day she could get a seat on Turkish Airlines). She did not allege that the Respondent declined to take her back to Nairobi on 15th July 2022.

7. The claimant prayed for:(a)Special Damages in the sum of Kshs. 432,923. 29(b)General Damages.(c)Cost of the suit.(d)Interest on (a), (b), (c) herein above at Court's rates.

Respondent’s Case 8. The Respondent admits that the Complainant purchased tickets to travel to Cyprus through Doha. The Respondent avers that the Complainant did not have the required visa to enter Cyprus and that the obligation was on the Complainant to procure all the necessary travel documents including the visas. The Respondent contends that it cannot be blamed for the Complainant's failure to procure the necessary travel documents.

9. The Respondent denies that it lost the Complainant’s luggage nor that it was damaged. The Respondent also denies receiving a complaint for damaged baggage or missing items.

10. The respondent avers that the Complainant is not entitled to the prayers sought and prays that the Complaint be dismissed with costs.

B. Evidence Adduced Complainant’s evidence 11. The Complainant adopted her Witness Statement, which has largely the same contents with the Complaint. She also filed a List and Bundle of documents. These were adopted and the Complainant proceeded to give her evidence.

12. The Complainant narrated her experience from Jomo Kenyatta International Airport to Doha and back. She said she felt embarrassed. She maintained that she did not need a visa to travel to Cyprus. She further added that Qatar Airways confirmed that they had erroneously denied her to travel. The Complainant expressed that she had to travel to Cyprus using Turkish Airlines through Istanbul and had to pay for extra baggage because of the bag that had been lost. She stated that someone at the Airport advised her to purchase a ticket on Turkish Airlines.

13. In cross examination, the Complainant stated that that there is a South Cyprus Embassy in Kenya where she was told that she did not need a Visa to travel to Northern Cyprus. She stated that she travelled to Cyprus using Turkish Airlines without requiring to procure a visa in advance.

14. In re-examination, the witness restated her position that she did not require a visa to travel to Northern Cyprus. The Complainant stated that her passport was stamped upon arrival and she was admitted. In addition, the Complainant indicated that she confirmed with the school and her daughter that she did not need a visa. She further stated that she was told the same by the Embassy of Southern Cyprus in Karen.

Respondent’s evidence 15. The Respondent presented a witness namely, Andrew Chipkule Murunga, Airport Services Manager of the Respondent. He adopted his Witness Statement. He also relied on the Respondent’s List and Bundle of Documents.

16. In cross-examination, the witness stated that there is no Northern Cyprus Embassy in Kenya. He added that for persons travelling to Northern Cyprus it depends on whether they need a visa or not. He stated that the stamp on the Complainant’s passport is not a visa but an entry stamp. He confirmed that the Complainant entered Cyprus from what is indicated on the passport. He also confirmed that the Complainant filed a complaint form for lost luggage.

17. In re-examination, the witness stated that the entry visa for Cyprus depends on the status; for students they gain entry using a student’s card while for non-students they need clearance from Ercan Airport.

18. The Tribunal sought clarification from the witness on various issues. The witness stated that the Respondent had not provided documents to show that the Complainant needed a visa and do not have anything to show that they confirmed with Ercan.

19. The witness stated that new students have a clearance letter from the school. He also stated that the Respondent does not accept passengers to Cyprus without a visa. The witness further added that travel documentation is a passenger’s responsibility.

20. The witness stated that up to now he does not know whether Kenyan nationals need a visa to Cyprus and would have to send a message and seek clarification.

C. Submissions 21. We have read the Submissions filed by the parties and the authorities cited, and do not wish to reproduce them here. We thank Counsel for the work put in the preparation of the submissions.

D. Analysis 22. It is not in dispute that the Complainant purchased a ticket from the Respondent to travel from Nairobi to Ercan through Doha. A contract was thereby established between the parties.

23. It is also not disputed that the Respondent’s journey was terminated in Doha and had to be repatriated. What is in issue are the reasons for the repatriation. The Respondent argues that the Complainant needed a visa to proceed to Cyprus and without it could not let her board the flight from Doha. The Complainant argues that she did not need a visa to travel to Cyprus. Her assertion is based on the fact that she later travelled to Cyprus without a visa using a different airline, that her daughter had informed her that she did not need a visa and that she was told at the South Cyprus Embassy in Nairobi that she did not need a visa to travel to Northern Cyprus. The Respondent’s position is that it was informed by Ercan Airport that the Complainant needed a visa. The Respondent’s witness stated that up until now he is still not sure whether Kenyan nationals travelling to Cyprus need a visa or not. We would have expected that faced with the matter before us, the Respondent would have been diligent enough to ascertain the facts, even for the purpose of its future engagement with customers.

24. The sad part is that we might never know whether the Complainant needed a visa or not, for the reasons we shall give below.

25. Neither of the parties in this matter brought up the issue of hostilities between Cyprus and ‘Northern Cyprus’. As such, the parties did not canvass the role it may have played in the making of the dispute before us.

26. We take judicial notice of the hostilities between the Republic of Cyprus and ‘Northern’ Cyprus. Under international law, only Cyprus (Republic of Cyprus) is recognized as a state. It therefore is a member of the United Nations, the European Union, and many other regional and international bodies. There is no state known as Northern Cyprus; the reason why it cannot have an embassy in Kenya. The northern part of Cyprus, inhabited by Turkish Cypriots, made attempts to break away from the Republic of Cyprus and therefore hostilities began at the ‘border’. The northern part is only recognized by Turkey, the reason why flights to that region connect through Turkey.

27. The resultant effect of the foregoing is that there is no state to state relationship between ‘Northern Cyprus’ and any other state, other than Turkey. The Republic of Cyprus also has no control over the region.

28. In our view, and with the geopolitics obtaining, the Embassy of the Republic of Cyprus in Nairobi would not be a reliable source of information for travel to ‘Northern’ Cyprus.

29. The foregoing, however, does not absolve the Respondent from proving that the Complainant needed a visa to travel to Cyprus. Even assuming that is difficult to prove in the obtaining circumstances, they owed the Complainant an obligation to prove that some authority had denied her access to Cyprus. This, the Respondent did not do. To date, the Respondent does not have anything to prove that the Complainant needed a visa.

30. What, therefore, is the Complainant entitled to?

31. The Complainant did not utilize the ticket she had purchased from the Respondent for the intended purpose. For this reason, the Complainant is entitled to get back the purchase price of the aborted journey. This amounts to Ksh. 172,650/=.

32. The Complainant utilized the ticket purchased from Turkish Airlines for her benefit. She cannot then get compensation for the same.

33. The other claims and amounts particularized as Particulars of Special Damages are neither supported by the contract between the parties nor justified in evidence. There is no strict proof of the same. We therefore decline to award the same.

34. On the claim for general damages, we find that this is not a fit case for their award. General damages have to be justified, moreso in a case arising out of breach of contract.

35. On costs, we find that this is a fit case to award costs to the successful party.

36. Interest is awarded at court rates.

E. Conclusion 37. In conclusion we award the following:a)Special Damages of Ksh. 172,650/=.b)Costs of the suit assessed at Ksh. 30,000/=.c)Interest on a) and b) at court rates.

SIGNED AND DELIVERED AT NAIROBI THIS 6TH DAY OF AUGUST 2024In the presence of:Prof. Njaramba Gichuki - ChairpersonHon. Valentine Khaminwa – Vice ChairpersonHon. Hassan Issack Hache - MemberHon. Col. Rtd. John Kiplagat Kiili - MemberHon. John Ekale Aruma - MemberCourt Assistant Ms. Kimora Fardosa