[2010] KEHC 4137 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

Civil Appeal 95 of 2002

1. FARIDA ABDULLAHI IBRAHIM

2. ASMAH ABDULLAHI IBRAHIM

3. NAJMA ABDULLAHI IBRAHIM

Suing through his father and next friend,

ABDULLAHI IBRAHIM AHMED…………………………….APPELLANTS

VERSUS

GULF AIR LIMITED ………………………………………….RESPONDENT

(Being an Appeal from the ruling of the Senior Principal Magistrate, Mr. C.O. Kanyangi delivered on 13/02/2002 in Nairobi CMCC No. EJ 406 of 2001, Farida Abdukahi Ibrahim, Asnah Abudllahi, Ibrahim and Nagma Abudllahi Ibrahim).

J U D G M E N T

1. This is an appeal from the ruling of the Senior Principal Magistrate, Mr. C.O. Kanyangi delivered on 13/02/2002 in Nairobi CMC No. EJ 406 of 2001. The Memorandum of Appeal dated 13/03/2002 and filed in court on 13/03/2002 comprises 3 grounds of appeal, that is to say that —

1. The Learned Magistrate erred in law in finding that the suit is time barred when actually it was not.

2. The Learned Magistrate erred in law and fact in finding that the matter was improperly before the court.

3. The Learned Magistrate erred in not finding that the cause of action is based on contract hence suit was not time barred.

2. The Appellant herein commenced the action by filing a plaint dated 12/06/2001 on the 14/06/2001. The Appellants claim arose out of the Defendant’s failure to ferry them from Kenya to Frankfurt Germany on or about the 20/12/1998 via Abu Dhabi. The Appellants averred that on the 21/12/1998, the Defendant refused to allow the Plaintiffs access into a connecting flight No. GF 017, in Abu Dhabi for no known reasons and instead left the three minor Plaintiffs stranded at a transit toll in Abu Dhabi Airport where they (minor Plaintiffs) spent three days out in the cold and their luggage worth Kshs.72,000/= was lost and/or misplaced by the Defendant in the ensuing confusion. The Plaintiffs prayed for judgment against the Defendant for:—

(a)Special damages at Kshs.72,000/= and

(b)Special damages at Kshs. 310,000/= being USD 4430 converted to Kshs at the rate of 70/= per USD.

(c)Costs of this suit

(d)Interest on (a) and (b) at court rates until payment in full.

3. The Defendant filed their Statement of Defence on 4/07/2001 in which they denied the Plaintiffs’ allegations and also pleaded that it was impossible for the Defendant to perform its part of the contract on grounds that the Plaintiffs did not possess valid travel documents to enable them enter Germany on 21/12/1998, namely that the Plaintiffs did not possess valid visas to travel to Germany. As regards the Plaintiffs alleged lost luggage, the Defendant averred that the sad luggage was only misplaced and that when the luggage was eventually found, it was forwarded to the Plaintiffs on the 30/12/1998 who accepted the same and acknowledge such receipt in writing. The Defendant denied that they were in breach of the contract of carriage. The Defendant further averred thus at paragraphs 15 and 16 of the Defence:—

“15. The Defendant avers that the suit herein does not lie against the Defendant the same having [been] extinguished by the provisions of the Carriage by Air Act No. 2 of 1993 and further avers that it shall at the earliest opportunity apply to have it struck out.

16. The Defendant further avers that the cause of action herein has been time barred by the express provisions of the Carriage by Air Act No. 2 of 1993. ”

The Defendant asked the court to dismiss the Plaintiff’s suit with costs.

4. By the Chamber Summons application dated 12/09/2001 and filed in court on 17/09/2001, which application was brought under Order 6 Rule 13(1)(a) of the Civil Procedure Rules, Section 7 of the Carriage by Air Act No. 2 of 1993, Article 29 of the Warsaw Convention on Carriage by Air as amended by The Hague Protocol, 1995, Section 3A of the Civil Procedure Act and all other enabling provisions of the law, the Defendant sought an order to strike out the plaint filed on the 14/06/2001 and to dismiss the suit with costs to the Defendant. The application was premised on the grounds that the Plaint did not disclose a reasonable cause of action against the Defendant and further that the Plaintiff filed their case after their right to damages had been extinguished by virtue of S.7 of the Carriage by Air Act No. 3 of 1993 and Article 29 of the Warsaw Convention on Carriage by Air as amended by The Hague Protocol 1995. The application was also premised on the grounds that this suit is exclusively governed by the provisions of the Carriage by Air Act No. 3 of 1993 under which provisions the suit is time barred; noting that as the cause of action herein arose on 21/12/1998 the suit ought to have been filed within two (2) years reckoned from that date.

5. In his ruling dated 13/02/2002, the Senior Principal Magistrate, Mr. C.O. Kanyangi, found that the action had been brought after the 2 years period allowed under the Carriage by Air Act No. 3 of 1993 had expired as provided under Article 29 thereof. The learned trial magistrate struck out the Plaintiff’s plaint as prayed with costs to the Defendant. It is against the said ruling that the Appellant now appeal.

6. This appeal was canvassed before Mutungi J (as he then was) on 6/03/2006. Mr. Nyakiangana who appeared for the Appellants relied on Section 7 of the Carriage by Air Act No. 2 which section provides:—

7. (1) No action against a carrier’s servant or agent which arises out of damage to which the Convention relates shall, if he was acting within the scope of his employment, be brought after more than two years, reckoned from the date of arrival at the destination or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.

(2) Article 29 of the Convention shall not be read as applying to any proceedings for contribution between tortfeasors, but not action shall be brought by a tortfeasor to obtain a contribution from a carrier in respect of a tort to which Article 29 applies after the expiration of two years from the time when judgment is obtained against the persons seeking to obtain the contribution.

(3) Subsections (1) and (2) and the provisions of Article 29 of the Convention shall have effect as if reference in those provisions to an action include reference to an arbitration; and subsections (3) and (4) of section 34 of the Limitation of Actions Act shall apply for the purposes of this subsection.

Mr. Nyakiangana argued that the Plaintiffs’ suit was not against the agent or servant, but was against the airline, so that the provisions of section 7 as above stated do not apply.

7. It was also contended on behalf of the Appellants that even if section 7 of the Act applied, there was limitation under Article 29(2) of the Charter which also provided the method of calculating the period of limitation, namely that the applicable law is the Limitations of Actions Act, Cap 22 Laws of Kenya. It was further contended that under Cap 22, the limitation period for claims based on contract was 4 years. The period under Cap 22 is 6 and not 4 years. Mr. Nyakiangana also argued that section 7 of the Act was applicable only where there is contribution of the carrier in a tort case and where judgment has been obtained against the person to pay the contribution. The Appellant’s contention was that there was no contribution against the carrier (the Respondent) nor had judgment been obtained against the person pursuant to section 7(2) of the Act (above). For these reasons, Mr. Nyakiangana urged the court to allow the appeal.

8. Learned counsel Mr. Wasonga appeared for the Respondent. He contended that a contract of Carriage by air is a special contract to which the provisions of the Law of the Contract Act do not apply to the rights of carriers, packages and so forth. Mr. Wasonga also argued that under Article 29(2) the period of limitation is 2 years and no more. He said that the cause of action arose on 21/12/1998 so that if the Appellants intended to pursue any claim, they should have filed suit on or before 21/12/2000; and that the filing of the suit on 14/06/2001 was definitely out of time. Mr. Wasonga also submitted that the Appellant should have sought enlargement of time before filing suit, but never did so. Mr. Wasonga relied on HCCC No. 303 of 2001 – Alitalia Airlines –vs- Skylink Air Services Limited (Unreported).

9. In Ahtalia case, the Plaintiff was a carrier within the meaning of the Convention for the clarification of Certain Rules Relating to International Carriage by Air as Amended by The Hague Protocol of 1995 which has the force of law by Section 3(c) of the Carriage By Air Act 1993. The dispute was over the interpretation of Article 29 of the Convention which provides as follows:-

“(1) The right to damages shall be extinguished if an action is not brought within two years, reckoned from the date of arrival at the destination, or from the date on which the aircraft ought to have arrived, or from the date on which the carriage stopped.”

(2) The method of calculating the period of limitation shall be determined by the law of the court seized of the case.”

10. In the ruling of the court, Mbaluto J (as he then was) found that any claims relating to periods prior to the cause of action which was more than 2 years before the lodging of the counter claim and set off were extinguished by virtue of Article 29 of the Convention.

11. The court has now considered the facts of the case, the proceedings and the learned Principal Magistrate’s ruling and the grounds of appeal against the said ruling. I have also considered the law and the opposing submissions by counsel. I have considered the ruling by the Senior Principal Magistrate with a view to reaching my own conclusions in the matter. (see Peters –vs- Sunday Post Ltd. [1958] E.A 424. The conclusion I have reached after considering all the above submissions is that the Appellant’s appeal has no merit. The Appellant’s main contention is that the trial court erred in law and fact in finding that the Appellants’ suit before the trial court was time barred, and that the Plaintiff did not seek leave of the court to bring the suit out of time, that the cause of action arose on 21/12/1998 when the Plaintiff is said to have refused the Appellants to take the connecting flight No. GF 017 in Abu Dhabi for Franfurt in Germany. Under Article 29 of the Convention, suit ought to have been filed on or before 21/12/2000. In the instant case, the suit was not filed until 14/06/2001, almost six (6) months outside the statutory period and without leave of the court. It is not correct, as submitted by counsel for the Appellant that this claim is governed by provisions outside the Carriage by Air Act No. 2 of 1993. The carriage in this case stopped on 21/12/1998. Even if this period were to be stretched to the time when the Appellants eventually left Abu Dhabi or about 8/01/1999 when the connection in Abu Dhabi ought to have been made, the suit was still filed out of time.

12. For the above given reasons, I dismiss the Appellants appeal with costs to the Respondent.

Orders accordingly.

Delivered and Dated at Nairobi this 22nd day of January, 2010.

R.N. SITATI

JUDGE

Delivered in the presence of:-

M/s Nyakianga (present) for the Plaintiff/Applicant

Mr. Wasonga (present) for the Defendant/Respondent

Weche – court clerk