[2012] KEHC 5434 (KLR)

[2012] KEHC 5434 (KLR)

The court held that the Montreal Convention, as incorporated into Kenyan law by the Carriage by Air Act, governs the limitation period for claims arising from international carriage by air. Article 29(1) of the Convention provides a two-year limitation period, after which the right to damages is extinguished, not merely barred. The Limitation of Actions Act does not apply to such claims, as it is a procedural statute that does not extinguish rights, whereas the Convention's limitation is substantive. The plaintiff's suit, having been filed nearly three years after the cause of action arose, was brought outside the two-year period and is therefore extinguished by law. The court further...

Citation
[2012] KEHC 5434 (KLR)
Parties
Plaintiff: E.M.S (Suing as next friend of J.M.I, a Minor); Defendant: Emirates Airlines
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
11 July 2012
Case Number
Civil Suit 603 of 2010
Procedural Posture
Civil Suit / Ruling on Preliminary Objection and Application to Strike Out Plaint
Outcome
plaint struck out; suit dismissed as time-barred under the Montreal Convention; no order as to costs
Legal Topics
Limitation of Actions, Carriage by Air, International Conventions, Striking Out Pleadings
Source Language
English
Civil Procedure Commercial and Corporate Limitation of Actions Carriage by Air International Conventions Striking Out Pleadings

Case Brief

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Parties

E.M.S (Suing as next friend of J.M.I, a Minor)

Plaintiff

Emirates Airlines

Defendant

Procedural Posture

Civil Suit / Ruling on Preliminary Objection and Application to Strike Out Plaint

Legal Issues

  1. 1 Whether the plaintiff's suit is time-barred under the Carriage by Air Act and the Montreal Convention.
  2. 2 Whether the Limitation of Actions Act or the Montreal Convention governs the limitation period for claims arising from international carriage by air.
  3. 3 Whether the court can extend time or revive a claim extinguished by the Montreal Convention.

Ratio Decidendi

The court held that the Montreal Convention, as incorporated into Kenyan law by the Carriage by Air Act, governs the limitation period for claims arising from international carriage by air. Article 29(1) of the Convention provides a two-year limitation period, after which the right to damages is extinguished, not merely barred. The Limitation of Actions Act does not apply to such claims, as it is a procedural statute that does not extinguish rights, whereas the Convention's limitation is substantive. The plaintiff's suit, having been filed nearly three years after the cause of action arose, was brought outside the two-year period and is therefore extinguished by law. The court further...

Court Disposition

plaint struck out; suit dismissed as time-barred under the Montreal Convention; no order as to costs

Orders

  • The plaint herein is struck out.
  • No order as to costs.