[2025] KENCCART 79 (KLR)

Josephine Renee Osiro (Suing as the mother and next friend of the minor HC v Skyward Express Limited (Tribunal Case E006 of 2023) [2025] KENCCART 79 (KLR) (Civ) (18 March 2025) (Judgment)

Neutral citation: [2025] KENCCART 79 (KLR)

Republic of Kenya

In the National Civil Aviation Administrative Review Tribunal

Civil

Tribunal Case E006 of 2023

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

March 18, 2025

Between

Josephine Renee Osiro (Suing as the mother and next friend of the minor HC)

Complainant

and

Skyward Express Limited

Respondent

Judgment

A. Case Background Complainant’s Case 1. The Complainant is an adult Kenyan female suing on behalf of her minor son aged 9 years.

2. The Complainant brought this suit before this Tribunal by way of a Complaint/Plaint dated 21st November, 2023 accompanied by a Verifying Affidavit sworn by her on the 21st November, 2023.

3. The Complainant prays for judgment against the Respondent for the following:i)An order of damages for breach of contract, emotional anguish, mental trauma, mistreatment of a child, cruel treatment, and the resultant inconvenience.ii)Compensation amounting to Ksh 2,000,000/=.iii)Aggravated damages.iv)Special damages of Ksh 7,500/=.v)Costs of the suit and interest thereon to be awarded to the Plaintiff.

Respondent’s Case 4. The Respondent, Skyward Express Ltd, which is a limited liability company, duly registered and licensed air transport carrier, operating within the Republic of Kenya.

5. The Respondent filed a Memorandum of Appearance dated 8th January 2024, a Statement of Defence dated 23rd January 2024, Witness Statements, and a List of Documents.

6. The Respondent prays that the suit be dismissed with costs.

B. Hearing 7. The Complainant relied on her witness statement and attendant documentation and gave evidence. She said that on 14th August, 2023, her son, a minor, was scheduled to travel to Moi International Airport in Mombasa from Nairobi’s Wilson Airport on the Respondent airline, Skyward Express Limited.

8. The minor was scheduled for a 9:00 am flight, and was set to travel unaccompanied, a fact which the Respondent herein was fully familiar with.

9. The Complainant states that the flight in question was rescheduled a total of three times. First to10. 00 am, then 11. 00 am, before finally taking off at 12. 00 pm. The flight, however, did not make it to its destination on time, owing to a diversion to Jomo Kenyatta International Airport in Nairobi for an emergency landing occasioned by turbulence. The flight eventually arrived in Mombasa at 2. 55 pm.

10. The Complainant avers that for the entire duration of this ordeal, she had no way to get in touch with her son or attend to his welfare. She kept requesting the Respondent to provide her son with meals, a request which she claims the Respondent failed to fulfill, and that the minor was forced to wait with adults for a period of over 7 hours. She claims that consequently the minor was subjected to severe hunger, mental anguish and emotional distress.

11. The Complainant avers that the action or lack of it is a clear breach of contract and the duty of care owed to the Complainant as a client of the Respondent.

12. The Complainant adds that, to further compound the above, the Respondent failed to provide the Complainant with any updates and information regarding the changes in the flight itinerary, amounting to violation of the Complainant’s consumer rights.

13. The Complainant explained that the diversion of flight from Wilson Airport to Jomo Kenyatta International for an emergency/crash landing was not only abrupt, but was also not well explained to the minor or to the Complainant. She claimed that considering the minor was unaccompanied, the Respondent ought to have taken extra care of the minor.

14. The Complainant said that the cause of the trauma was the turbulence.

15. The Complainant’s second witness, Swabra Mumba, indicated that she is a Counselling Psychologist. She relied on her Witness Statement dated 20th February 2024 and the Counsellor’s Report to state that the minor was affected by the whole experience following the plane diversion and that he would draw a plane crashing into a house during one of their therapy sessions, which she stated is a feature of fear. On cross-examination she affirmed extensively that the minor suffered psychological injuries specifically because of the ‘turbulence’.

16. She said that she did not have a lot of time with the child as they were briefly in Mombasa.

17. The third Witness for the Complainant, Winnie Ochieng, adopted her Statement. She said that she was on the flight with the minor. She confirmed that the minor travelled ‘unaccompanied’.

18. She said that there was turbulence that made people get scared.

19. She also indicated that an announcement was made that the plane had a mechanical problem, and this lead to anxiety.

20. At JKIA, the witness saw 6 to 8 minors, and Henry joined the others who were playing.

21. The fourth witness for the Complainant, Sonia Jani Alando, a cousin of the minor was the caretaker of the minor.

22. She confirmed that she personally delivered the minor to the airport on time and that she signed forms confirming he is ‘an unaccompanied minor’.

23. While on the way, she received a call from the Complainant that the flight had been rescheduled to 10. 00 am.

24. She said that later she received a panic call from the Complainant that the minor had not arrived.

25. The Respondent then availed one witness, Joseph Ogembo, in support of its case. He relied on his Statement dated 7th February 2024.

26. The witness said that he was handed the minor to continue the flight from JKIA to Mombasa. Mr. Ogembo is a cabin employee of the Respondent and affirmed that he watched over the minor throughout the flight and confirmed that he did give the minor biscuits, juice and water during the flight.

27. He said that he went through all the safety measures with the minor and ultimately they settled him in. He indicated that the minor was comfortable during the flight up until landing when he handed the minor over to the ground personnel at the airport who informed his mother that the minor had arrived.

28. The witness could not give any evidence about what happened between Wilson Airport and JKIA as he was not present.

C. Issues For Determination 29. At the close of pleadings, the matter was set for hearing and later written submissions. The Tribunal distilled the following issues for determination:a)Whether the Respondents actions amounted to a breach of the duty of care and/or breach of contract.b)Whether the Claimant is entitled to the remedies as sought.

D. Analysis And Determination a. Whether the Respondents actions amounted to Breach of duty of care and contract. 30. The Complainant’s flight from Wilson Airport to Mombasa International Airport was scheduled to depart at 09:00hours on 14th August 2023 as indicated on the air ticket. Technical hitches, and turbulence necessitated the delays and diversion, first to 10:00am, then further delay to 11:00am and finally further to 12:00pm. All these delays were communicated to the passengers as confirmed by the Complainant about the first communication of the change from 9. 00 am to 10. 00 am, and by the third witness for the Complainant. The Complainant had already proceeded to Mombasa.

31. The main basis of this Complaint, in our view, is the turbulence that made passengers, including the minor get scared. Turbulence is a natural phenomenon, and we cannot properly attribute the same to any fault on the part of the Respondent. It cannot, therefore, form the basis of liability.

32. The other issue that we had to consider is the diversion of the flight and landing at JKIA. We hold that safety of passengers is a key pillar of air travel. The Respondent was, therefore, indeed under an obligation to land rather than take a flight with the mechanical issues that the plane had. The Terms and Conditions on the ticket provides for when a diversion may be made.

33. On a balance of probability, we find that the minor was taken care of by the Respondent as it should, especially in the absence of evidence to the contrary.

34. We are of the considered opinion that the average minor of that age would have been scared of turbulence and the delay in the absence of a parent, and we would not fault the Respondent unless evidence of breach of duty or breach of care was adduced. We would require to see evidence of negligence on the part of the Respondent. In this case, it was not adduced.

35. Whereas without finding fault on the part of the Respondent the damage may not be relevant, we all the same considered the evidence of the Psychologist. In it, the key thing is that the minor was scared because of the turbulence and he was therefore worried. While this is a serious concern, there is no basis for us to attribute it to wrong doing by the Respondent.

36. We therefore find that the Complainant has not established any liability on the part of the Respondent.

b. Whether the Claimant is entitled to the remedies as sought. 37. Arising from the foregoing, the Complainant is not entitled to any of the remedies sought.

38. In conclusion, we find the following Orders:i) An order of damages for breach of contract, emotional anguish, mental trauma, mistreatment of a child, cruel treatment, and the resultant inconvenience.This prayer is dismissed.ii) Compensation amounting to Ksh 2,000,000. 00. This prayer is dismissed.iii) Aggravated damages. This prayer is dismissed.iv) Special damages of Ksh. 7,500. 00. This prayer is dismissedv) Costs of the suit and interest thereon to be awarded to the Plaintiff. Due to the nature of the matter, especially involving a minor, we order that each Party shall bear its own costs.

SIGNED AND DELIVERED AT NAIROBI THIS 18TH DAY OF MARCH 2025In the presence of:PROF. NJARAMBA GICHUKI - CHAIRPERSONHon. Valentine Khaminwa – Vice ChairpersonHon. Hassan Issack Hache - MemberHon. Col. (Rtd) John Kiplagat Kiili - MemberHon. John Ekale Aruma - Member