[2025] KENCCART 80 (KLR)

Kageche v Kamasky Travel Ltd & another (Complaint E004 of 2024) [2025] KENCCART 80 (KLR) (Civ) (11 March 2025) (Judgment)

Neutral citation: [2025] KENCCART 80 (KLR)

Republic of Kenya

In the National Civil Aviation Administrative Review Tribunal

Civil

Complaint E004 of 2024

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

March 11, 2025

Between

Joseph Njoroge Kageche

Complainant

and

Kamasky Travel Ltd

1st Respondent

KLM Royal Dutch Airlines Ltd

2nd Respondent

Judgment

1. The Complainant is an adult Kenyan male, residing and working for gain within the Republic of Kenya. The Complainant brought this suit before the Tribunal by way of an amended Complaint dated 11th September, 2024, praying for judgment against the Respondent for:a.The sum of Kshs 466,000. 00 against the 1st and 2nd defendants jointly and severally.b.Interest on (a) above.c.Cost of the suit.d.General damages.e.Exemplary damages.

2. The 1st Respondent, Karmasky Travel Ltd., is a private limited liability company carrying on the business of facilitating air travel including air ticket services in Kenya.

3. The 2nd Respondent is a limited liability company duly licensed to carry on airline business in Kenya.

4. The 1st Third Party was joined upon a successful application by the 2nd Respondent.

5. The 2nd Third Party was joined upon a successful application by the 1st Third Party.

Complainant’s Case 6. It is the Complainant’s case that on 14th August, 2023, the Complainant made a payment of Ksh. 466,000. 00 (Kenya Shillings four hundred and sixty-six thousand) to the 1st Respondent for the purpose of procuring return air tickets from Nairobi to Toronto, Canada with the 2nd Respondent airline.

7. Upon the 1st Respondent’s issuance of a ticket, a contract of carriage was entered into between the Complainant and 2nd Respondent for a scheduled travel date on 3rd September, 2023.

8. On the travel date of 3rd September, 2023, the Complainant was denied boarding on the scheduled airline of the 2nd Respondent, first on the basis that he did not have a letter from the Embassy only for the Embassy to clarify that every authorization had been sent to the portal which was in turn available to the 2nd Defendant. Despite clarification by the Embassy, boarding was denied without explanation and on the third time the Complainant was denied entry and told to try another airline.

9. The Complainant made an alternative arrangement for travel to Canada via Ethiopian Airlines successfully.

10. It is the Complainant’s case that the denial of service caused loss of time and mental anguish, taxi transport costs, including parking costs as each time the Complainant was issued with a new ticket and underwent airport clearance up to boarding stage but he would be declined boarding.

11. The Complainant lodged a claim for his ticket refund (Ksh. 466,000. 00) through 1st Respondent and it was acknowledged by the 2nd Respondent and confirmed the refund was initiated.

12. However, the Complainant did not receive the funds.

1st Respondent’s Case 13. The 1st Respondent did not enter any appearance in the suit.

14. An Affidavit of Service sworn on 18th March 2024 by Jacinta Wanjiru was filed with the Tribunal as proof of service.

15. The Complainant filed a Request for Judgement dated 18th March 2024 against the 1st Defendant. Due to the nature of the matter, and the prayers sought, it was imperative that the matter proceeded to full hearing.

2nd Respondent’s Case 16. On 22nd April 2024 the 2nd Respondent entered and appearance and a statement of defence in which it confirmed that indeed on 14th August 2023, the Claimant engaged the 1st Respondent to procure a return ticket from Nairobi, Kenya to Toronto, Canada.

17. The 2nd Respondent sought the joinder of the 1st Third Party, Touch World Safaris Ltd on the basis that it would seek indemnity against the 1st Third Party if it was to be found liable.

18. Accordingly, on 14th May, 2024, the Tribunal issued a third-Party Notice to the 1st Third Party.

1st Third Party’s Case 19. The 1st Third Party entered an appearance on 29th July, 2024 via a statement of defence; denying liability for the refund.

20. The 1st Interested Party also filed a third-party notice dated 10th June, 2024 to the 2nd Third Party, Sky Pride Tours & Travel Ltd., on the grounds that it had processed the refund to the 2nd Third Party as evidenced by the credit note dated 17th January, 2024.

21. On 17th Jan, 2024, 1st Third Party initiated a credit note of sum Ksh. 373,250. 00 (Kenya Shillings Three Hundred and Seventy Three Thousand, Two Hundred and Fifty) to 2nd Third Party for processing the refund to the Complainant which was formally acknowledged through a receipt.

22. Accordingly, the 1st Third Party prays for dismissal of the claim against 1st Third Party with costs to the 2nd Respondent.

2nd Third Party’s Case 23. The 2nd Third Party entered an appearance and filed a statement of defence dated 12th July, 2024 stating that Ksh. 373,250. 00 (Kenya Shillings Three Hundred and Seventy-Three Thousand, Two Hundred and Fifty) was refunded to the 1st Respondent (Karmasky Travel Ltd.) by 2nd Third Party, for onward transmission to the Claimant.

24. Accordingly, the 2nd Third Party disputes their joinder and prays the claim be dismissed with costs.

Hearing 25. At the hearing of the case, the Complainant adopted and relied upon his Complaint and bundle of documents dated 16th February, 2922, plus an amended witness statement.

26. On 10th September, 2024, Joseph Kageche Njoroge recounted how on 3 occasions the ‘Swissport’ staff denied him entry on the 2nd Respondent flight despite his visa being ‘active’ in the portal. He also stated that he had applied for a refund online through the 1st Respondent but he never received any refund.

27. The 2nd Respondent through Ms. Sarah Gichuhi, appeared in court on 1st October 2024. She adopted their response and bundle of documents dated 6th August, 2024.

28. The 2nd Respondent contends that the Claimant was rightfully denied entry through using the conditions of Article 9 of Conditions of carriage and other authorities.

29. The 2nd Respondent denied responsibility for the refund as the contract and payment was between the Complainant, the 1st Respondent and the 2nd Third Party.

30. At the hearing, Elvis Musa, an Accountant represented the 1st Third Party, Touch World Safaris Ltd. adopted his defence documentation and stated that it provided a credit note, evidencing that it had supplied the 2nd Third Party with the claimed refund.

31. The 2nd Third Party was represented by Ms. Julia Jelimo, a Director at Skypride Tours & Travel Ltd., at the hearing of the case who stated in sum that they had an agency contract with the 1st Respondent and provided proof that they had refunded Ksh.373, 260. 00 (Kenya Shillings Three Hundred and Seventy-Three Thousand, Two Hundred and Sixty) to the 2nd Third Party, Touch World Safaris Ltd., for onward transmission to the 1st Respondent.

32. Parties then filed written submissions. We shall not reproduce the evidence adduced and the submissions in this judgment as we have considered the pleadings, the exhibits, the evidence and the submissions.

Issues for Determinationa.Who should make a refund to the Complainant.b.Whether the Claimant is entitled to the other reliefs as sought.

Analysis 33. The Complainant purchased the ticket from 1st Respondent and was issued of a ticket. We find that the complainant is entitled to the refunds sum of Ksh. 466,000. 00 as he did not receive any refund on the monies paid for the initial ticket purchase from the 1st Respondent.

34. It is noteworthy that the 1st Respondent elected not to appear in the proceedings and defend itself.

35. It is also noteworthy that the evidence adduced in court demonstrate that the chain of refund processing moved from the 2nd Respondent to the 1st Third Party to the 2nd Third Party and stops at the 1st Respondent.

36. The 1st Respondent, if it was before the Tribunal, would have said what happened to the refund amount after it received it from the 2nd Third Party. In its absence, and with the last stop of the funds being the 1st Respondent, then it is clear that the 1st Respondent is the one holding the refund due to the Complainant.

37. It therefore follows that the 1st Respondent should refund the amount to the Complainant.

38. Taking into consideration the period it has taken for the Complainant to get his refund, we award interest at court rates from the date of filing the Complaint.

39. The 1st Respondent shall pay costs to the Complainant, who is the successful party.

40. The 1st Respondent shall also pay costs to the 2nd Respondent, the 1st Third Party and the 2nd Third Party, for the reason that if the 1st Respondent had appeared and set the record straight, there would not have been need to have the prolonged proceedings, in addition to the fact that they are also successful.

41. This being a claim for breach of contract, we shall not award damages. We decline these prayers as these are 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.We therefore find as follows:-

42. On Prayer a) Ksh. 466,000. 00 refund is awarded to the Complainant as against 1st Respondent.On Prayer b) we award interest on above amount at Court rates.On Prayer c) Cost of the suit.The Tribunal awards the Complainant Ksh. 30,000. 00 by way of costs, Ksh. 20,000. 00 is awarded to the 2nd Respondent, Ksh. 15,000. 00 is awarded to the 1st Third Party and Ksh. 15,000. 00 awarded to the 2nd Third Party, all against the 1st Respondent.On Prayer d) General damages and prayer e) Exemplary damages, are declined.It is so ordered.

SIGNED AND DELIVERED AT NAIROBI THIS 11th DAY OF MARCH 2025In the presence of:Hon. Prof. Njaramba Gichuki - ChairpersonHon. Valentine Khaminwa – Vice ChairpersonHon. Hassan Issack Hache - MemberHon. Col. (Rtd) John Kiplagat Kiili - MemberHon. John Ekale Aruma - Member