Francis Awino v Emirates SkyCargo & 4 others

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **CONSTITUTIONAL PETITION NO. E319 OF 2025** **IN THE MATTER OF ARTICLES 2, 10, 19, 20, 22, 23, 25, 26, 28, 35, 43, 46, 47, 69 AND 70 OF THE CONSTITUTION OF KENYA** **AND** **IN THE MATTER OF THE MONTREAL CONVENTION 1999 AND THE WARSAW CONVENTION (AS AMENDED BY THE HAGUE PROTOCOL)** **AND** **IN THE MATTER OF THE FAILURE OF EMIRATES SKY CARGO TO MAINTAIN THE INTEGRITY AND SAFTEY OF PERISHABLE CARGO DURING INTERNATIONAL AIR TRANSPORTATION** **BETWEEN** **FRANCIS AWINO………….……..……….……………………………..PETITIONER** **VERSUS** **EMIRATES SKYCARGO……….…...…………......………………..…RESPONDENT** **AND** **BUTERE FREIGHTERS** **INTERNATIONAL LIMITED……………...…………….1ST INTERESTED PARTY** **KENYA CIVIL AVIATION AUTHORITY……………...2ND INTERESTED PARTY** **SAUDI GENERAL AUTHORITY OF** **CIVIL AVIATION (GACA)……………………………....3RD INTERESTED PARTY** **INTERNATIONAL CIVIL** **AVIATION ORGANIZATION (ICAO)…..……………..4TH INTERESTED PARTY** **R U L I N G** **Brief Facts** 1. Coming up for determination is the respondent’s preliminary objection dated 4th August 2025 based on the grounds that the Honourable Court has no jurisdiction concerning Air Waybill No. 176-02665235 in view of the provisions of the Carriage by Air Act (Cap 394A) Laws of Kenya as well as Article 28 of the Convention for the Unification of Certain Rules Relating to International Carriage by Air (Warsaw Convention) as amended by the Hague Protocol of 19955 as read together with Article 2(6) of the Constitution of Kenya 2010. Further, the petitioner has no contractual relationship with the respondent that is subject to the Warsaw Convention and neither is the petitioner a party to the contract referenced Air Waybill No. 176-02665235. Additionally, the petitioner has no proprietary or legal interest in the consignment referenced under Air Waybill No. 176-02665235. 2. The respondent further argues that a constitutional claim cannot arise from the Air Waybill 176-02665235 and no representative claim as envisaged under Articles 22 and 258 of the Constitution of Kenya can arise in respect of carriage by air, given the express provisions of the Warsaw Convention. Further, the petitioner has no locus standi in view of the principles of privity of contract. **The Respondent’s Case** 1. The respondent identified three issues for determination as follows; whether this Honourable Court has jurisdiction to hear and determine the petition, whether the petitioner has requisite locus standi to institute the petition and whether the petitioner has satisfied the test for a representative suit. On the first issue, the respondent relied on the cases of **Owners of the Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR); Kakuta Maimai Hamisi vs Peris Pesi Tobiko & 2 Others [2013] eKLR** and **Nguruman Limited vs Jan Bonde Nielsen & 2 Others [2013] KECA 347** and submitted that pursuant to Articles 165(3)(b) and (d) of the Constitution, the jurisdiction of the court is limited to determining whether a right or fundamental freedom in the Bill of Rights ahs been denied, violated, infringed or threatened as well as to determine any questions regarding the interpretation of the Constitution. A review of the petition and the issues it raises reveals that it is primarily fixated on a private commercial transaction between private entities, disguised as allegations of constitutional violations and does not implicate or affect the public interest. 1. The respondent argued that it is an established principle that the Constitution is not to be used as a general substitute for litigating ordinary civil disputes yet the present petition, though framed as a constitutional petition, is in substance a commercial dispute arising from a contract (waybill) to which the petitioner is not a party and which he therefore lacks the capacity to invoke. Furthermore, the reliefs sought including injunctions and orders for disclosure are commercial in nature. Reliance was placed in the case of **Royal Media Services Limited vs The Attorney General [2018] eKLR** whereby the Court of Appeal observed: - **The appellant having misinterpreted and or misunderstood the essence of the respondent’s objection to the procedure and the judge’s observation on the same, the appellant’s submissions on this ground are clearly misplaced. In our view the judge cannot be faulted for holding that a constitutional petition procedure adopted by the appellant in ventilating its claim was ill suited for the kind of claim it had laid before the trial court namely debt collection. We had occasion in the past to bemoan the current trend of filing constitutional petitions and references on matters or claims that have no iota or scintilla of any constitutional bearing. This trend of constitutionalising virtually everything which is actually in our view** **an abuse of the court process, needs to be nibbed in the bud and frowned upon**. 1. The respondent further cited the case of **Nairobi County Government vs Kenya Power and Lighting Company Limited [2018] KEHC 7038 (KLR)** and argued that mere reference to constitutional rights does not by itself elevate the dispute to a constitutional issue. The court held:- **A constitutional question is an issue whose resolution requires the interpretation of a constitution rather than that of a statute. I am not satisfied that the issues herein raise a constitutional question at all…When determining whether an argument raises a constitutional issue, the question is whether the argument forces the court to consider constitutional rights or values. The attempt to clothe this dispute with alleged violation of some constitutional rights does not breathe life into the case.** 1. The respondent argued that by calling upon the instant court to determine the said questions in the context of constitutional violations, when the issues in question are fundamentally commercial in nature as negotiated between the respondent and a third party to the proceedings, the petitioner runs afoul of the doctrine of constitutional avoidance. Reliance was placed in the case of **Communications Commission of Kenya & 5 Others vs Royal Media Services Limited & 5 Others [2014] KESC 53 (KLR)**. 2. On the second issue, the respondent submitted that the petitioner lacks locus standi as he has no contractual or proprietary interest in the consignment nor does he have any legal relationship with the respondent under the waybill. The waybill which forms the basis of the petition identifies Irimisa Icon Enterprises Limited as the shipper, Universal Cold Store Company as the consignee and Butere Freight International Limited as the carrier’s agent, joined to the instant proceedings as the 1st interested party and makes no mention of the petitioner. Article 22(2)(c) of the Constitution as read together with Article 258(2)(c) states that a person acting in the public interest has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated, infringed or is threatened, thereby broadening the access to the court’s. However as stated by the Court of Appeal in **Mumo Matemu vs Trusted Society of Human Rights Alliance & 5 Others [2013] KECA 445 (KLR)** even that expanded notion of standing is limited where the litigation in question is hypothetical, abstract or an abuse of the judicial process. Consequently, the principle of locust standi serves as a gatekeeper, ensuring that only parties with a genuine and direct interest in a dispute may bring it before the court. 3. Similar reliance was placed in the decision in **Mureithi & 2 Others vs Attorney General & 5 Others (as quoted with approval in Okoiti vs** **Njenga & 7 others [2022] KEHC 74(KLR)** where the court stated that the principle of standing in public interest litigation does not include a mere busybody who is interfering in things that do not concern him, but this includes a person who has a genuine grievance because an order has been made which prejudicially affects his interests and the rights of citizens. 1. Further reliance was placed in the case of **Michael Osundwa Sakwa vs Chief Justice and President of the Supreme Court of Kenya & Another [2016] KEHC 7697 (KLR)** where the court held that the liberal interpretation of locus standi under our current constitutional framework does not mean that the rule is no longer relevant in constitutional petitions. Where it is evident that the petitioner has completely no business in bringing the matter to court, to permit such proceedings to be litigated would amount to the court itself abetting abuse of its process. 2. The respondent argued that the petition seeks to improperly insert the petitioner into a private commercial transaction to which he does not have a legal, proprietary or contractual connection, and does not establish a public interest to justify his intervention. As rightfully observed by the Court of Appeal in **William Muthee Muthami vs Bank of Baroda (Civil Appeal 21** **of 2006) [2014] KECA 591 (KLR) (Civ) (23 May 2014) (Judgment)** rights and obligations under a contract are only conferred or imposed on the parties to that contract. Thus by the petitioner not being a party to the said waybill and having no contractual relationship with the respondent, it lacks the requisite standing to institute the present claim. Reliance was placed in the cases of **Savings & Loan (K) Limited vs Kanyenje Karangaita Gakombe & Another [2015] KECA 784 (KLR)**; **Kenya National Capital Corporation Ltd vs Albert Mario Cordeiro & Another [2014] eKLR** and **Agriculture Finance Corporation vs Lengetia Ltd (1985) KLR at 770**. 1. On the last issue, the respondent submitted that although the petitioner stated in his petition that he brought the said petition for the benefit of the Kenyan public, neither the averments therein, the documents relied upon or the prayers sought support the claim that the petition has been brought on behalf of the Kenyan public and or as a representative suit. Further, the petition has failed to satisfy the test for a representative suit as there can be no representative suit in respect of private contractual rights. Reliance was placed in the case of **Andrew Muma & Charles Kanjama t/a Muma & Kanjama Advocates & Others vs Deloitte & Touche East Africa & 5 Others [2020] eKLR** where the court held that for it to allow a class action, the applicants must prove among other things, that: there are numerous parties to the suit and they have significant or sufficient “same interest” or “common interest against the same person. There should be “community of interest” whether it arises from the same transaction or not. 1. The petitioner herein has failed to provide any identifying information, such as names, identification numbers or any form of verification to demonstrate that such persons coined as Kenyan public exist. Further, the petitioner has failed to provide proof that the Kenyan public have consented to the institution of a representative suit or that they have a common interest in the suit. **The Petitioner’s Submissions** 1. The petitioner identified one issue for determination as follows; whether the petitioner has locus standi to institute and maintain the present petition under the Constitution of Kenya. The petitioner submitted that he filed a detailed petition setting out the factual matrix surrounding the mishandling, temperature excursion and eventual destruction of the consignment consigned under air waybill number 176-02665235 as well as the respondent’s refusal to disclose information necessary to protect public rights. The said facts are contested and they form the backbone of the constitutional grievances presented before the court. Thus, a preliminary objection cannot be founded upon the respondent’s factual disputation of those matters. 2. On the issue of jurisdiction asserted by the respondent that the Montreal and Warsaw Conventions, together with the Carriage by Air Act, provide an exclusive liability regime that ousts the instant court’s jurisdiction, the petitioner submitted that the constitution of Kenya is the supreme law and Article 165 clothes the court with jurisdiction to determine questions regarding the interpretation and enforcement of the Bill of Rights. Article 2(6) incorporates international treaties into Kenyan law, but such incorporation is expressly subject to the Constitution. Thus no international treaty and no Act of Parliament implementing such treaty can operate to insulate a private entity from constitutional scrutiny where its conduct violates or threatens the rights guaranteed under the Constitution. 3. The petitioner argued that the petition herein does not solely rest on contractual or treat based liability but raises broader and weightier issues concerning the right to access of information under Article 35, consumer protection under Article 46, the right to health and safe food under Article 43 and the public safety obligations under Article 69. The said issues transcend the private contractual matrix between the consignee and the carrier and strike at the heart of systemic public interest concerns especially where the respondent handles consignments whose mishandling can compromise food safety and damage the reputation of Kenya’s export systems. 4. Pursuant to Article 22 and 258 of the Constitution, the petitioner brought the petition as a public interest actor and he has sworn that he is the president of Bunge la Mwananchi which is a well known civic and human rights platform. Thus, the respondent’s reliance on contractual privity as a basis for challenging locus standi is incompatible with the constitution. Contractual privity may limit private law claims but it has no application in public law or constitutional litigation. Further, where conduct connected to a contractual transaction has broader public consequences, constitutional claims may be brought by persons who are neither consignors or consignees. The doctrine of privity applies strictly to private claims for contractual enforcement and not to constitutional claims seeking transparency, accountability and the protection of public rights. 5. The petitioner further submitted that the prayers sought in the petition such as access to information, regulatory investigations, audit of the respondent’s cold chain compliance, suspension of operational licences pending inquiry and declarations on constitutional obligations are not remedies available under the contractual regime or the Montreal Convention. They are constitutional remedies that the instant court can grant. He further argued that once the proper legal position is appreciated, it becomes clear that none of the grounds advanced by the respondent raise a pure point of law capable of disposing of the petition at the current stage. The issues raised require factual interrogation, analysis of annextures and a substantive constitutional determination. 1. The petitioner asserted that courts have repeatedly held that where a matter raises constitutional questions with public impact, any Kenyan whether directly affected or not may litigate. Reliance was placed in the case of **Wanjiru Gikonyo & Others vs NCC & Others [2016] eKLR** where the court held that: **A person may enforce public duties even if he has no personal interest, provided the matter concerns public accountability and governance.** 1. Thus, the respondent’s cold chain failures, refusal to disclose data logs and systemic risks to food safety fall into the said category. **Analysis and Determination** 1. The main issues of determination in this Application are: 2. Whether the objection meets the legal threshold for raising a Preliminary Objection. 3. Whether this court has jurisdiction to hear and determine the petition. 4. Whether the petitioner has *locus standi* to institute the petition. **Whether the objection meets the legal threshold of a Preliminary Objection** 1. The case of **Mukisa Biscuits Manufacturing Ltd vs West End Distributors (1969) EA 696** defined the scope of what constitutes a preliminary objection. The court observed thus:- **...a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.** 1. Sir Charles Newbold P. stated:- **A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of preliminary objections does nothing but unnecessarily increase costs and on occasion, confuse the issue, and this improper practice should stop.** 1. Similarly the Supreme Court in the case of **Hassan Ali Joho & Another vs Suleiman Said Shabal & 2 Others SCK Petition No. 10 of 2013 [2014] eKLR** held that:- **A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.** 1. Further in the case of **Hassan Nyanje Charo vs Khatib Mwashetani & 3 Others, [2014] eKLR** the court held that:- **Thus a preliminary objection may only be raised on a ‘pure question of law.’ To discern such a point of law, the court has to be satisfied that there is no proper contest as to the facts. The facts are deemed agreed, as they are prima facie presented in the pleadings on record.** 1. Regarding the value of preliminary objections, the Supreme Court in **Independent Electoral & Boundaries Commission v Cheperenger & 2 others (Civil Application 36 of 2014) [2015] KESC 2 (KLR) (15 December 2015) (Ruling)** explained: **“21. The occasion to hear this matter accords us an opportunity to make certain observations regarding the recourse by litigants to preliminary objections. The true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection—against profligate deployment of time and other resources. And secondly, it serves the public cause, of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement...”** 1. By way of a summary therefore, proper attributes of a preliminary objection are as follows: 2. ***If argued successfully, a preliminary objection must lead to disposal of the suit without a trial on merits-*** *meaning that if it is upheld, the case ends and the Court does not have to interrogate the substance of the factual dispute between the contending parties.* 3. ***It is argued on the assumption that all the facts pleaded by the other side are correct-*** *this means that the parties on the face value accepting opponent’s pleaded facts for purposes of the objection and arguing that even if those facts remain uncontroverted, the suit cannot validly stand in law.* 4. ***It cannot be raised if any fact has to be ascertained by evidence-*** *a preliminary objection would be unavailable if the Court would require to inquire into and ascertain a contested fact either by referring to an affidavit or any other form of evidence, it must be based on the pleading and the law only.* 5. ***It cannot be raised if what is being sought is the exercise of judicial discretion –*** *if the matter would require the Court to weigh competing interests in order to arrive at a decision, that cannot be a pure Preliminary Objection.* 6. Evidently, a preliminary objection should be founded upon a settled and crisp point of law, to the intent that its application to undisputed facts, leads to but one conclusion: that the facts are incompatible with that point of law. 7. A jurisdictional issue satisfies the conditions above hence the instant objection is properly placed and could thus be taken as Preliminary Objection as it relies on uncontested facts and if proved, it can dispose of the matter without the need a hearing on merits. **Whether the court has jurisdiction to determine the petition** 1. The law on the question of jurisdiction was enunciated in the case of **Owners of the Motor Vessel “Lilian S” vs Caltex Kenya Limited [1989] KLR 1** where the court held:- **Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.** 1. Jurisdiction is donated either by the Constitution or statute and is therefore not left to conjecture. The Supreme Court made this clear in **Samuel Kamau Macharia & Another vs KCB & 2 Others [2012] eKLR** thus:- **“A court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a court of law can only exercise jurisdiction as conferred by the Constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law. We agree with Counsel for the first and second respondents in his submission that the issue as to whether a court of law has jurisdiction to entertain a matter before it, is not one of the mere procedural technicality; it goes to the very heart of the matter, for without jurisdiction, the court cannot entertain any proceedings. This Court** **dealt with the question of jurisdiction extensively in the Matter of the Interim Independent Electoral Commission, Constitutional Application Number 2 of 2011. Where the constitution exhaustively** **provides for the jurisdiction of a court of law, the court must operate within the constitutional limits. It cannot expand its jurisdiction through judicial craft or innovation. Nor can Parliament confer jurisdiction upon a court of law beyond the scope defined by the Constitution. Where the constitution confers power upon parliament to set the jurisdiction of a court of law or tribunal, the legislature would be within its authority to prescribe the jurisdiction of such a court or tribunal by statute law…** 1. The respondent contends that the petition does not raise constitutional issues but it is simply a dispute over a contractual agreement between Irimisa Icon enterprises Limited as the shipper, Universal Cold Store Company as the consignee and Butere Freighters International Limited as the carrier’s agent. 2. It is manifest that the Petition is founded on the allegation that respondent allegedly mishandled a shipment of meat being exported from Nairobi to Dammam, Saudi Arabia under Air Waybill 176-02665235 which resulted in the shipment being destroyed. Parties to the transaction involving the said Air Waybill were **Irimisa Icon enterprises Limited** as the shipper, **Universal Cold Store Company** as the consignee and **Butere Freighters International Limited** as the carrier’s agent. 3. The substratum of the Petition rests on an alleged breach arising from the contractual relationship that existed between parties privy to the contractual arrangement. 4. This is therefore a pure commercial dispute governed by the parties’ respective obligations under the Air Waybill 176-02665235. I find that the petition is an attempt to constitutionalize, what is, in essence a commercial dispute. 5. As was held in **KKB v SCM & 5 others [2022] KEHC 289 (KLR)**, the Court observed as follows: **“Constitutional avoidance has been defined as a preference of deciding a case on any other basis other than one which involves a constitutional issue being resolved. As a principle, constitutional avoidance has been linked to the doctrine of justiciability. In broad terms, justiciability governs the limitations on the constitutional arguments that the courts will entertain. It encompasses three main principles which are standing, ripeness and mootness.16 The doctrine of avoidance was fortified in Sports and Recreation Commission v Sagittarius Wrestling Club and Anor in which Ebrahim JA said the following: -** **…Courts will not normally consider a constitutional question unless the existence of a remedy depends upon it; if a remedy is available to an applicant under some other legislative provision or on some other basis, whether legal or factual, a court will usually decline to determine whether there has been, in addition, a breach of the Declaration of Rights.”** **The Constitutional Court of Zimbabwe in Chawira & Ors vs Minister of Justice Legal and Parliamentary Affairs & Ors held:** **“As we have already seen, in the normal run of things courts are generally loathe to determine a constitutional issue in the face of alternative remedies. In that event they would rather skirt and avoid the constitutional issue and resort to the available alternative remedies.”** **The court in S v Mhlungu laid out constitutional avoidance as a general principle in the following terms: -** **“I would lay it down as a general principle that where it is possible to decide any case, criminal or civil, without reaching a constitutional issue, that is the course which should be followed.”** **The doctrine of avoidance is primarily viewed by courts from the position that although a court could take up a matter and hear it, it would still decline to do so if there is another mechanism through which the dispute could be resolved.”** 1. the Supreme Court in **Communications Commission of Kenya & 5 others vs Royal Media Services Limited & 5 others [2014] KESC 53 (KLR)** guided as follows: **“[256] The appellants in this case are seeking to invoke the “principle of avoidance”, also known as “constitutional avoidance”. The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. In South Africa, in S v. Mhlungu, 1995 (3) SA 867 (CC) the Constitutional Court Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows [at paragraph 59]:** **“I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.”** **[257] Similarly the U.S. Supreme Court has held that it would not decide a constitutional question which was properly before it, if there was also some other basis upon which the case could have been disposed of (Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347 (1936)).”** 1. I find that the instant Petition offends the doctrine of Constitution avoidance. I uphold the Preliminary Objection dated 4th August, 2025. The Petition is thus struck out with costs to the Respondent. 2. I make no orders as to costs. ***DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 3RD DAY OF SEPTEMBER, 2026.*** \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ **L.N MUGAMBI** **JUDGE**