[2022] KENCCART 149 (KLR)

Kenya Aeronautical College Flying School v Kenya Civil Aviation Authority (Appeal 1 of 2021) [2022] KENCCART 149 (KLR) (Civ) (13 June 2022) (Judgment)

Neutral citation: [2022] KENCCART 149 (KLR)

Republic of Kenya

In the National Civil Aviation Administrative Review Tribunal

Civil

Appeal 1 of 2021

G. Njaramba, Chair, P. Muholi & K. Waithaka, Members

June 13, 2022

Between

Kenya Aeronautical College Flying School

Appellant

and

Kenya Civil Aviation Authority

Respondent

Judgment

Background 1. This is a claim for renewal of the Appellant’s Certificate of Airworthiness for Aircraft registration number 5Y-CCN Serial Number 172-71796 by the Respondent. The Appeal was filed in this Tribunal by way of Memorandum of Appeal dated 22nd March 2021. The Respondent responded to the Memorandum of Appeal by filing a Replying Affidavit dated 21st April 2021 and also raised a preliminary objection in the same Affidavit, challenging the jurisdiction of the Tribunal to entertain the matter at that stage. With the leave of the Tribunal, the Appellant further filed a Supplementary Affidavit dated 21st May 2021 and written submissions on 28th May 2021.

2. The Parties were further instructed to file their respective submissions.

The appelant’s case 3. The Appellant, Kenya Aeronautical College Flying School, filed a complaint with the National Civil Aviation Administrative Review Tribunal on 22nd March 2021, stating that on 23rd October 2020, they applied for the renewal of the Certificate of Airworthiness for Aircraft 5Y-CCN around the time of expiry of the previous certificate. It is their statement that the aircraft was then inspected on 13th November 2020 and it was found to be in a good condition save for a few issues that the Respondent needed closed on by the Appellant. The Appellant further contended that it addressed all the issues as demanded by the Respondent but the Respondent failed to grant it with the Certificate of Airworthiness for aircraft 5Y-CCN serial Number 17271796. It is the Appellant’s case that there have been numerous correspondences with the Respondent, the most recent correspondence being a letter dated 24th February 2021, which was issued to it by the Respondent indicating findings as follows;1. Previous Logbooks were not available for inspection;2. Major repairs were performed on the aircraft without making formal request to the Authority;3. The Approved Maintenance Organization (AMO) could not demonstrate access to airworthiness data;4. The Kenya Wildlife Service (KWS) AMO performing the aircraft weighing did not have capability to weigh; and5. The submitted work package was not compliant with airworthiness regulations.

4. On the issue of the unavailability of log books, the Appellant stated that when it first made an application for registration of the aircraft in 2017 having purchased the aircraft from an insurance company, the original log books were not within their custody and efforts to trace the original were futile thus prompting the Appellant to report to the Wilson Airport Police Station and was issued with a Police Abstract Report. On the second issue, the Appellant averred that major repairs on the aircraft were done with due regard to the aircraft manufacturer’s procedures in doing repairs and thus approval from the Respondent was not necessary.

5. On whether AMO could not demonstrate access to airworthiness data, the Appellant attached an email confirming communication with the manufacturer regarding the procedure to be used for the major repairs. Further, the Appellant stated that it contended the fourth issue raised by the Respondent since the aircraft weighing was done in 2017 when the prevailing regulation was 2013 AMO Regulations and not the 2018 AMO Regulations which were not applicable in 2017.

6. Lastly on the final issue raised by the Respondent, it is the Appellant’s claim that the submitted work package of 2017 was satisfactory and that is actually the main reason why the Respondent in 2017 granted the Re-Issue of the Certificate of Airworthiness. The Appellant further stated that the lack of renewal of Certificate of Airworthiness for 5Y-CCN has occasioned major losses due to lost business.The Appellant’s prayer is that the Tribunal may make the orders:a.That the Tribunal Makes an Order for the restoration of validity of the Certificate of Aairworthiness for 5Y-CCN for a period of 6 months from date of receipt of this Appeal or until Matter of this Appeal for renewal of Certificate of Airwothiness is heard and determined on condition that the operator ensures maintenance of the aircraft is kept current at all times;b.That on full hearing of the Appeal, the Certificate of Airworthiness renewal application is reviewed by this Tribunal and a determination of the interpretation of the AMO Regulations is made so as to cause for a clear renewal of the Certificate of Airworthiness for a standard validity of 12 months;c.Thatthe Tribunal reviews the Appeal and to hears it expeditiously as the matter is urgent in nature due to the major economic losses that the Appellant’s Aviation Training Organization is incurring which includes fees from Flight students transferred to other institutions and aircraft parking fees that is accumulating due to the grounding of the aircraft occasioned by the lack of renewal of Certificate of Airworthiness for 5Y–CCN by the Respondent; andd.Thatthe above humble prayers be assessed by the Tribunal and determined swiftly.

The respondent’s case 7. The Respondent, the Kenya Civil Aviation Authority, through a Replying Affidavit by Mary Keter, the Manager in charge of the Airworthiness Department, averred that the Certificate of Airworthiness for aircraft registration 5Y-CCN expired on 22nd October 2020. She further stated that the Appellant made an initial application for the renewal on 26th October 2020 and that competent inspectors were sent on 29th October 2020 to perform the inspection but they were unable to perform the inspection as the aircraft was not available. She further stated that the Appellant applied for renewal of the license on 18th November 2020, just about a month after expiry of the Certificate of Airworthiness contrary to Regulation 12(5) of the Civil Aviation (Airworthiness) Regulations, 2018, which provides that an application for renewals of Certificate of Airworthiness should be made at least sixty (60) days before expiry.

8. It was her statement that the Respondent held a meeting on 24th February 2021 with the Appellant to explain the procedure and processes required by relevant regulations for renewal of a Certificate of Airworthiness and a letter dated 24th February 2021, was further sent to the Appellant regarding the findings. She stated that the Respondent never received a response of the letter but instead received a demand letter dated 26th February 2021, from Kinyanjui, Kirimi and Company Advocates demanding that the Respondents renews the Appellant’s Certificate of Airworthiness.

9. It was also her averment that the aircraft’s original log books were not lost but were indeed in custody of the previous owner’s Aircraft Maintenance Organization (AMO) which had since submitted the logbooks to the Respondent. On the issue of repair, it was her submission that the Appellant failed to fill and submit the prescribed form for acceptance as per requirements of Regulation 42 of the Civil Aviation (Airworthiness) Regulations, 2018. The Respondent also stated that the submitted work package of work done on aircraft after accident did not comply with the requirements of Regulation 42 of the Airworthiness Regulations, 2018.

10. The Parties filed their respective submissions after closing their cases. We do not wish to reiterate the said submissions in this Judgment but shall make reference to them as we go along.

11. Having considered the pleadings as filed as well as the oral evidence submitted in court and the submissions only one issue arises for determination which is - Whether this Tribunal should be directed to issue the Appellant the Certificate of Air worthiness for the Aircraft 5Y-CCN Serial Number 172-71796.

12. Before we delve into the issues at hand, we wish to address a preliminary issue that arose in the course of proceedings. The initial Appeal before this Tribunal was filed by Skymax Aviation Limited. However, in the course of the proceedings, it was brought to the attention of the Tribunal by the Respondent, that the Appellant had written to the Respondent on 11th September 2019 communicating that the company had changed its name from Skymax Aviation Limited to Kenya Aeronautical College Flying School and thus the name in which the Appeal was filed does not exist in law. The Tribunal on 25th November 2021 thus made a decision that an amendment must be made to the pleadings to reflect Kenya Aeronautical College Flying School as the registered owner of the Aircraft, to enable the Appeal be prosecuted. The Appellant duly complied with the Tribunal decision and amended the pleadings.

13. Having addressed the above, we now get back to the issue at hand on whether the Certificate of Airworthiness should be issued to the Appellant.

14. The dispute herein arises out of an application of the Certificate of Airworthiness renewal made by the appelant on 26th October 2020 and subsequently another one dated 12th November 2020. Upon receipt of the application, the Respondent released its inspection team who carried out inspection on 13th November 2020 and tabled its report which raised several findings. The Appellant was notified of the findings by a letter dated 29th December 2020.

15. The Respondent did not renew the Certificate of Airworthiness and neither did it make any decision on the same and this prompted the Appellant to approach this Tribunal for intervention.

16. During the course of the proceedings the Tribunal established that the Respondent had not made any decision and thus compelled it to make such a decision so that the Tribunal could be clothed with the requisite jurisdiction. That prompted the Respondent to make a decision rejecting the application by their letter dated 8th November 2021. This therefore dispensed with the preliminary objection raised by the Respondent with regard to the jurisdiction of the Tribunal to hear the Appeal.

17. In order to properly resolve this dispute the contents of the letter dated 29th December 2020 and the report by the Respondent’s Inspections will be our centre of interest.

18. The letter contains 5 areas upon which the Respondent considered in making the decision and they are:-1. That the previous Aircraft Propeller and engine log books were not available for inspection;2. Major repairs were performed on the Aircraft without making a formal request to the Authority on the prescribed Form AC-AWS014;3. The AMO that performed maintenance on the Aircraft could not demonstrate access to the airworthiness data to support the maintenances work performed on the aircraft;4. Kenya Wildlife Service, which performed aircraft weighing on 22nd June 2017 does not have approved capability.5. The work package for work done after the accident submitted to the Respondent for Inspection was not compliant with Airworthiness Regulations.

19. We shall address each of the above findings separately.

Finding No. 1, in relation to the log books: 20. Regulation 41 of the Civil Aviation (Airworthiness) Regulations, 2018, requires that every operator of an Aircraft shall keep or cause to be kept logbooks in respect of the Aircraft. The Appellant suggested in its application that the logbooks were lost and provided a police abstract.

21. However, in its letter dated 24th February 2021, the Respondent confirmed that the logbooks were not lost but had inconsistencies in the hours recorded.

22. The Respondent’ argument is that the hours are an integral part of the maintenance. The Respondent cited Regulation 52 of the Airworthiness Regulations, which states that one should not make false entries.

23. We have considered arguments by both Parties on this issue. It is our considered opinion that the said finding can be closed by the Respondent recommending what ought to be done. PW1, Samson Aketch told the Tribunal that the variation in the hours was about 30. 6 hours, which he had corrected and therefore in his view the finding was closed. Equally DW1, in her oral evidence confirmed that there were attempts to close the finding and the Respondent was awaiting the original logbooks for it to close this finding. Both parties herein agree that since the original logbooks were traced the variation in the hours was an issue that is closed. It is therefore our finding on this particular issue, that the Respondent’s finding is closed.

Finding No, 2 on major repairs being performed on the Aircraft without seeking permission from the Respondent: 24. The Appellant alleges that the repairs were done by Pro Aviation Systems Limited, a licensed AMO and alleges that it was done under the 2013 AMO Regulations which did not require that the Appellant or AMO ought to seek approval from the Respondent.

25. PW2 was Oscar Imbuye a licensed Engineer. He alleged that under the 2013 AMO Regulations regime, there was no requirement that the AMO was required to seek approval for repairs and that the requirement was only introduced in the 2018 AMO Regulations.

26. We have had an opportunity to look at the two sets of Regulations and established that the 2013 AMO Regulations did not require authorizations to be sought from the Authority. However, the 2018 AMO regulations required such approvals. The only legal question that arises is whether the 2018 AMO Regulations could apply retrospectively?

27. In the case of Municipality of Mombasa vs Nyali Limited (1963) E.A 374, the Court held that if a legislation affects substantive rights, it will not be construed to have retrospective operation unless a clear intention to that effect is manifested but it affects procedure only.

28. In Halsbury’s Laws of England 4th Edition Re-issue Volume 44 (i) paragraph 1433 states as follows:-“It is a principle of legal policy that an amending enactment should be generally presumed to change the relevant law only from the time of the enactment’s commencement”

29. Further, in the case of Samuel Kamau Macharia & another vs Kenya Commercial Bank Limited & 2 Others SCK Application No. 2 of 2011 [2012] eKLR, the Supreme Court while considering the question whether the retrospective application of a statutory provision is unconstitutional stated as follows:“As for non-criminal legislation, the general rule is that all statutes other that those which are merely declaratory or which relate only to matters of procedure or evidences are prima facie prospective, and retrospective (sic) is not to be given to them unless, by express words or necessary implication, it appears that this was the intention of the legislature”

30. The Respondents argue that the 2013 AMO Regulations were revoked by the 2018 AMO Regulations and a one (1) year transition period was given to comply with the 2018 AMO Regulations.

31. We have had an opportunity to look at Regulations 61 and 62 of the 2018 AMO Regulations. Our understanding of those regulations is that by the time the Regulations came into force, the repair had already been carried out in 2017 and therefore it would not be logical or fair to require the Appellant to seek approval of repairs already done on the aircraft.

32. It is therefore our considered view, that this finding is illogical and impractical. The Regulations could not apply retrospectively. The catch words in Regulation 61 (2) are;“……………is carrying out any acts, duties or operations affected by these Regulations shall within one (1) year ……….”.

33. It therefore implies that the act should be “ongoing”. In this case the repairs were complete and it is our finding that the finding ought to have been closed and we consider the same closed.

Finding No. 3 on Access to data: 34. The Respondent in its letter dated 25th October 2021 and produced and marked ‘7’ remarked as follows:“Issue was agreed upon doing meeting. Receipt showing proof of payment received on 22nd October 2021. It was noted that the payment was done on 15th July 2021. Access demonstration was also done”.

35. It is therefore our view that the finding was closed.

Finding No. 4 on Weighing: 36. The Appellant stated that the Kenya Wildlife Service (KWS), which weighed the aircraft after repairs had been carried out, had the capacity to do so.

37. The Respondent however provided Form 0-AWS006-4 which demonstrated the Specific Operations Provisions (SOPS) as exhibit MK1-1 at page 59 of its bundle and MK 18 at page 60.

38. We have had an opportunity to look at the said document and it does not indicate that KWS had the capability to weigh the subject aircraft. The Appellant has not demonstrated that KWS had the capability. It is therefore our view that this finding has not been closed.

Finding No. 5 related to the work package: 39. It was the Appellant’s contention that it had submitted the requisite information and the repairs were done in accordance with the information and precedent set out in the relevant manual.

40. The Respondent on the other hand alleges that no approval for the repairs was carried out and that there was some missing information.

41. We have looked at the documents and it would appear from the documents that the Respondent has not indicated the specific details of the non-compliance by the Appellant so that the finding can be closed.

42. In its letter dated 25th October 2021 produced as Exhibit MK7 at page 32 of the bundle, the Respondent states that the Appellant should compete the missing information, which the Respondent proceeds to list including; No logo for the forms submitted; the forms are not completed appropriately; Not traceable to any approved manual/sample form.

43. The Appellant cannot then state that it had not been notified of what was pending.

44. It is therefore our view that this finding is still open and the Appellant should address the specific concerns as raised by the Respondent.

Finding No. 6 on the damage assessment report and rectification report: 45. The Appellant alleged that it had shared these reports with the aircraft manufacturer and had received feedback. The Respondent on the other hand indicated that there were inconsistences noted in the two reports.

46. We have considered the evidence in regard to this finding. We have also seen Appellant’s Exhibit 5, namely, an e-mail from the manufacturer. The email is dated 5th January 2021, and it confirms that the manufacturer approved the repairs. The Respondent has not disputed this information. It is therefore our finding in the absence of contrary evidence that the Appellant has provided sufficient information to close this finding.

47. Having considered the above analysis we come to the conclusion that there are outstanding findings that the appellant ought to close, as follows:1. Aircraft reweighing of the aircraft to still be done; and2. Work package to be completed by incorporating the missing; and

48. The Appellant should therefore close those findings to enable the Respondent issue a Certificate of Airworthiness.It is therefore our view that the Appellant’s request to compel the Respondent to issue a Certificate of Airworthiness cannot be granted and the Appeal is dismissed.

49. We also wish to recommend that due to the fact that the Aircraft has not operated for some time now, it would be prudent that the Respondent subjects the aircraft to its regulatory processes to enable the same operate.

50. A regulator should not stifle business but rather, should ensure smooth running and also a conducive environment for business. We wish to prevail upon the Respondent as a regulator not to hamper the smooth running of the Appellant’s business by revisiting what we have established as closed findings.

51. On the issue of costs, we have considered the nature of the appeal and the circumstances under which the same was occasioned and we direct that each party to bear their own costs.

DATED, SIGNED AND DELIVERED AT NAIROBI VIRTUALLY VIA TEAMS THIS 13TH DAY OF JUNE 2022. IN THE PRESENCE OF:Mr. Kirimi for the appellantMr. Kimani for the respondentGichuki Njaramba - ChairpersonHon. Peter Muholi, PM - MemberKuria Waithaka - MemberClara Kamami - Court Assistant