[2025] KENCCART 78 (KLR)

Haase v Air France & another (Complaint E005 of 2024) [2025] KENCCART 78 (KLR) (28 January 2025) (Judgment)

Neutral citation: [2025] KENCCART 78 (KLR)

Republic of Kenya

In the National Civil Aviation Administrative Review Tribunal

Complaint E005 of 2024

G. Njaramba, Chair, V Khaminwa, Vice Chair, JK Kiili, JE Aruma & HI Hache, Members

January 28, 2025

Between

Caroline Makena Mungiria Haase

Complainant

and

Air France

1st Respondent

KLM Royal Dutch Airlines

2nd Respondent

Judgment

Case Background 1. The Complainant is a Kenyan female adult, working for gain in Germany and brought this suit regarding a travel ticketing dispute pertaining to herself.

2. The Complainant brought this suit by way of a complaint, in a Statement of Claim dated 12th April 2024 accompanied by a Verifying affidavit sworn by her praying for judgement against the Respondent for:a.General damages for breach of contractb.General damages for the complainant’s disparaged and/or ruined employment record.c.Damages for the emotional and psychological distress, mental anguish and trauma suffered by the Complainant on account of the Respondents negligence.d.Punitive damages for the oppressive and arbitrary conduct and/or actions by the Respondentse.Special damages being the sum of EUR 697. 505 for the Flight KL566 Boeing 787-10 which the Complainant was denied boarding, KES 11,300. 00 and KES. 83,785. 00 for the additional flight charges for the JamboJet ticket to Mombasa and the Lufthansa ticket respectively.f.Special damages in the sum of KES. 3410. 00 for taxi charges.g.Costs of the claimh.Any other relief as the Tribunal may deem fit.

3. The 1st Respondent, Air France, a limited liability company duly incorporated in the French Republic permitted to operate in Kenya entered appearance and filed a Response and Defence dated 22nd July 2024.

4. The 2nd Respondent, KLM Royal Dutch Airlines, a limited liability company incorporated in the Kingdom of the Netherlands permitted to operate in Kenya entered appearance and filed a Response and Defence dated 22nd July 2024.

5. The 1st and 2nd Respondents operate together offering services jointly.

The Complainant’s case 6. The Complaint stated that on or about 23rd March 2024 she purchased a ticket from the first Respondent for a flight from Nuremburg to Nairobi through Paris on 23rd March 2024; and from Nairobi to Nuremburg through Amsterdam on 1st April 2024. The Complainant paid Euro 1395. 01 for the return ticket.

7. She travelled from Nuremberg to Nairobi through Paris on 23rd March 2024.

8. The Complainant avers that on the 1st of April 2024, she arrived at Jomo Kenyatta International Airport at 9. 00 p.m. in time for the flight back to Germany departing at 11:59 p.m. and she was checked in by the Respondents for flight KL566 Boeing 787-10 operated by the 2nd Respondent. Her boarding pass was printed and tags placed on her luggage by staff of the Respondents.

9. The Complainant states that she requested for a seat next to a window since she had travelled from Meru earlier in the day and therefore needed some legroom for comfort through the flight, of which the Respondents’ staffer and/or agent asked her to cross over to the other side of the counter and turned the computer monitor to the Complainant in order for her to choose a seat to which the Complainant obliged and chose her desired seat.

10. The Complainant avers that thereafter, the 2nd Respondent’s Manager and/or Supervisor (a Ms Sylvia) came by and immediately started shouting at the Complainant telling her that she was not supposed to cross over to that side of the counter to which she asked why she was being impolite but obliged and stepped out nonetheless.

11. The Complainant states that despite obliging to Ms. Sylvia Nzioka’s directions, the 2nd Respondent’s staffer and/or agent proceeded illegally and unlawfully check her out. Further, Ms. Sylvia took the Complainant’s boarding pass, removed the tags from her luggage, tore and threw them in a dustbin, and ordered the all the Respondents’ staff and/ or agents at the check-in counter not to check in the complainant for the flight and threatened to call security on the Complainant.

12. The Complainant avers that she consequently missed her flight.

13. The Complainant avers that the Respondents were in breach of contract and proceeded to provide the particulars of breach.

14. The Complainant avers that she suffered loss and proceeds to give the particulars of loss.

The Respondents’ case. 15. The 1st Respondent, Air France, a limited liability company duly incorporated in the French Republic permitted to operate in Kenya entered appearance and filed a Response and Defence dated 22nd July 2024.

16. The 2nd Respondent, KLM Royal Dutch Airlines, a limited liability company incorporated in the Kingdom of the Netherlands permitted to operate in Kenya entered appearance and filed a Response and Defence dated 22nd July 2024.

17. The Respondents state that on 1st April 2024, the Respondents’ duty station Manager Sylvia Nzioka requested the Complainant to stop looking at the seat map behind the check-in counter as it was not allowed for security reasons.

18. The Respondents’ case is that the Complainant became rude to Ms. Sylvia and refused to leave the area behind the check-in counter and when Ms. Sylvia called for security the Complainant additionally shoved Ms. Sylvia as she was moving from behind the counter.

19. It is the Respondents’ case that the 1st Respondent made the decision to offload the Complainant from the flight.

20. The 1st Respondent avers that pursuant to Article 9 of its General Conditions of Carriage, it was entitled to refuse to carry the Complaint and therefore denies having breached its contract with the Complaint.

21. The Respondents denies that the Complainant suffered the loss particularized in the Statement of Complaint.

Hearing 22. The Complaint filed a list of witnesses and a witness statement dated 12th April 2024.

23. In response the Respondents filed a response in defence dated 22nd July 2024, a list and bundle of documents dated 6th August 2024, and 2 witness statements dated 6th August 2024 and 8th October 2024.

24. Both parties were given an opportunity to present their respective cases. Both the Complainant and the Respondents called one witness each.

25. The Respondents relied on the witness testimony of Ms. Stephanie Spelle who explained how the Respondents have an air carriage agreement which relies on the Air France Conditions of Carriage albeit that the KLM Ticket is operated by Air France.

26. Ms. Spelle submitted that the Air France Conditions of Carriage extend to both airlines by virtue of Article 2 and its application to ‘Authorised Agents’ and therefore cover joint-ventures and code share agreements with the two sister companies. Accordingly, they defend their action under Article 9 (a) of the Air France General Conditions of Carriage for Passengers and Baggage wherein:

27. Article 9 …“At any boarding and/or connection point, the Carrier may refuse to transport a Passenger and their Baggage, if one or more of the following cases has occurred or is likely to occur: ….b)The carriage of the Passenger and/or their Baggage may endanger security, health, hygiene or good order on board the aircraft, in particular if the Passenger uses intimidation, behaves abusively and/or insultingly or uses abusive and/or insulting language to passengers or the crew.d)The Passenger has threatened the well-being of the Carrier and its staff or has compromised or attempted to compromise their safety or that of the Passengers, while booking, checking in or boarding their flight, on board or during a previous flight.

28. Both parties filed written submissions. We shall not reproduce the evidence adduced and the submissions in this judgment but we shall make reference to what has been espoused therein as we resolve the issues herein. We have considered the pleadings, the exhibits, the evidence and the submissions.

Issues for determination. 29. From the above, the following issues arise for determination by this Tribunal:a.Whether there was a contractual relationship between the Complainant and the Respondentsb.Whether there was breach of the Contract by the Respondentsc.Whether the Complainant is entitled to the reliefs sought

Analysis and Determination Whether there was a contractual relationship between the Complainant and the Respondents 30. The Complainant provided valid evidence that on 23rd March 2024 she purchased a return ticket from the 1st Respondent for a flight from Nuremburg to Nairobi through Paris and from Nairobi to Nuremburg through Amsterdam on 1st April 2024. The Complainant was issued with a ticket and checked in for Flight KL566 Boeing 787-10. The Complainant has therefore demonstrated that there was a contract of carriage between the Respondents and the Complainant.

Whether there was breach of the Contract by the Respondents 31. Having established that there was a contract between the Respondents and the Claimant, the next issue is to determine whether there was any breach of contract by the Respondents.

32. The Complainant gave evidence about the circumstances on the material day surrounding the issue before the Tribunal. We find her evidence credible.

33. The 1st Respondents admittedly made a decision to offload the Complainant and the Respondents’ agents offloaded the Complainant from the flight.

34. This resulted in the Complainant missing her flight thus undermining the reasonable contractual expectation of the existing contract of carriage.

35. The Respondents claim that the Complainant was in violation of Article 9 (a) of Air France’s general conditions of carriage for passengers and luggage but failed to avail the necessary witnesses to prove the same.

36. The Respondent’s witness could not be a witness of what transpired on the material day. The Respondent did not avail a witness who could shed light on the actual circumstances.

37. Based on the foregoing, we find that the Respondents did not act in accordance with the conditions of carriage and also the relevant Kenyan and Common International Law principles on contract and thus did in fact breach the contract of carriage that it had with the Complainant.

Whether the Complainant is entitled to the reliefs sought 38. The Complainant requested the Tribunal to make a decision on 8 prayers to which we find as follows:On prayers a) to d), we decline these prayers as these are general damages for which the Complainant has not sufficiently shown cause. We place reliance on Micro-City Computers Limited & another v National Social Security Fund Board of Trustees & another (Civil Appeal 49 & 59 of 2020 (Consolidated)) [2024] KECA 444 (KLR) (12 April 2024) where it was held that the normal function of the damages for breach of contract is compensatory not to punish the party in breach…general damages are normally not awarded for breach of contract since a party is required to prove that the loss has been incurred for which he or she seeks compensation.On prayer e) Special damages being the sum of EUR 697. 505 for Flight KL566 Boeing 787-10 which the Complainant was denied boarding, KES 11,300. 00 and KES 83,785. 00 for the additional flight charges for the Jambojet ticket to Mombasa and the Lufthansa tickets respectively: this prayer is well grounded and granted (current exchange rate of KSh.135. 00 to one Euro).On prayer f) Special damages in the sum of KES 3,410. 00 for taxi charges: this prayer is well grounded and granted.On prayer g) Costs of KES 30,000. 00 are awarded to the Complainant.

DELIVERED AT NAIROBI THIS 28TH DAY OF JANUARY 2025HON. PROF. NJARAMBA GICHUKI – CHAIRPERSONHON. VALENTINE KHAMINWA – VICE CHAIRPERSONHON. COL. (RTD.) JOHN KIPLAGAT KIILI – MEMBERHON. JOHN EKALE ARUMA – MEMBERHON. HASSAN HACHE – MEMBER