[2022] KENCCART 173 (KLR)

Khumalo v Kenya Airways Limited (Complaint E002 of 2021) [2022] KENCCART 173 (KLR) (Civ) (14 April 2022) (Judgment)

Neutral citation: [2022] KENCCART 173 (KLR)

Republic of Kenya

In the National Civil Aviation Administrative Review Tribunal

Civil

Complaint E002 of 2021

G. Njaramba, Chair, K. Waithaka & E. Waithaka, Members

April 14, 2022

Between

Regina Khumalo

Complainant

and

Kenya Airways Limited

Respondent

Judgment

1. The Complainant (previously the Plaintiff in Milimani Commercial Court Civil Case No. E8698 of 2021) brought this suit before the Tribunal by way of a Complaint dated 18th January 2021 (though the matter was transferred to the Tribunal in October 2021), accompanied by a Verifying Affidavit sworn by her on even date, praying for judgment against the Respondent for:(a)Facilitation of the Complainant’s travel back to the United Kingdom;(b)Cost of the suit;(c)Interest on the (a) and (b) above; and(d)Any other relief as the Tribunal deems just.

2. The Respondent responded to the Complaint by filing a Response (then a Defence) dated 8th October 2021 praying for the Complainant’s suit to be dismissed with costs. The Respondent filed an Amended Response (Statement of Defence) on 6th December 2021.

Complainant’s Case 3. The Complainant, who stated that since the year 2003, she has been living in the United Kingdom as an African British Citizen, stated that on 28th February 2017 she purchased a return ticket No. 7062488005403 from the Respondent to travel from Heathrow Airport, United Kingdom, to Jomo Kenyatta International Airport, Nairobi at a price of Kshs. 120,000/-. The Complainant was to return to London on 3rd April 2017.

4. The Complainant averred that she travelled to Kenya as planned and that during her stay in Kenya, she lost her suitcase that had her passport together with other electronic devices that she was not able to recover.

5. The Complainant further stated that on 3rd April 2017, when she checked in at the Jomo Kenyatta International Airport at 3. 00 a.m. for her flight which was to depart at 6. 00 a.m. aboard Flight No. KQ 100 she entered her name and the ticket number in the Respondent’s electronic checking system but her details did not appear. She then immediately alerted the attendant at the airport of this anomaly and explained that she had in her possession a British Resident Permit Card (BRPC) which allowed her to freely travel to the United Kingdom.

6. The Complainant averred that the BRPC was confirmed to be valid by the Travel Directive Unit. She further averred that she was informed by the flight attendant that an e-mail would be sent to the British High Commission for verification of the BRPC.

7. The Complainant stated that due to time running out, with her flight being scheduled for 6. 00 a.m., she requested to be issued with a boarding pass, but her request was denied, which caused her to miss her flight.

8. She further stated that she was able to get verification of her BRPC from the British High Commission, which verification she stated was accepted by the Respondent.

9. The Complainant avers that she sought to book another flight back to the United Kingdom and paid a penalty fee of Kshs. 18,040/-. Further, she stated that despite this, the Respondent frustrated all her efforts to travel back to the United Kingdom.

10. The Complainant stated that the Respondent had breached the air travel contract with her by refusal to facilitate her return back to the United Kingdom despite her making payments, paying the penalty fee and being cleared by the Travel Directive Unit. In addition, the Complainant stated that she had made many efforts to travel back to the United Kingdom but had been unsuccessful and further that she could not afford to sustain herself in Kenya and wholly relied on well-wishers for her upkeep.

11. The Complainant stated that she had suffered irreparable harm, loss and damage as a result of the actions of the Respondent.

Respondent’s Case 12. The Respondent confirmed that the Complainant purchased a ticket from it to travel from Jomo Kenyatta International Airport, Nairobi on 3rd April 2017 on Flight No. KQ 100 to London Heathrow.

13. The Respondent averred that it was a term of the contract between the Complainant and Respondent as per the Respondent’s Conditions of Carriage that the Respondent retained the right to refuse carriage of any passenger who presents inadequate travel documentation (Article 7. 1.7 and 13. 2) and further that a passenger wouldn’t be entitled to a refund under such circumstances.

14. The Respondent further averred that it utilized the Travel Information Manual Automatic (“TIMATIC”) System which is a database containing documentation requirements for passengers travelling internationally developed and managed by the International Air Transport Association (“IATA”) whose purpose is to aid airlines in making a go or no-go decision as regards allowing passengers to transit to other jurisdictions in a bid to avoid fines or additional costs of repatriating passengers who are denied entry.

15. It stated that the IATA TIMATIC system clearly set out the mandatory requirement for a passport and the passport exemptions for entry into the United Kingdom. The Respondent provided a screenshot of the TIMATIC System indicating the passport requirements for entry into the United Kingdom.

16. The Respondent further averred that on the material date to the suit, the Complainant presented herself for a flight aboard the Respondent’s aircraft from Nairobi to London and at check-in presented inadequate travel documents, in that the Respondent failed to produce a valid passport, which was a mandatory travel document required to enter the United Kingdom.

17. Further, the Respondent stated that it had a responsibility to confirm that every passenger had sufficient travel documents to enter the destination as they may incur penalties including criminal penalties for carrying an inadmissible passenger and would definitely incur the cost of custody, care and repatriation of the inadmissible person.

18. The Respondent averred that the Complainant produced a BRPC which document was insufficient for the reasons that it wasn’t one of the exemptions set out in the TIMATIC System and further, it was not a standalone document and needed to be accompanied by a valid passport.

19. The Respondent further averred that the Complainant did not board Flight No. KQ 100 to London Heathrow and was advised to return with sufficient travel documents at which time she would be allowed to travel to the United Kingdom aboard the Respondent’s aircraft. The Complainant thereafter rescheduled her flight however she presented insufficient documentation once again by failing to present a valid passport and couldn’t therefore travel to the United Kingdom.

20. It also averred that it is the passengers, in this case the Complainant’s responsibility to ensure that she had sufficient documents to travel to her destination and this was evidenced by the Respondent’s Customer Service Charter, which clearly set out the responsibilities of passengers.

21. The Respondent also stated that the Complainant was informed afterwards by the Respondent of the various facts as above, by way of e-mails between herself and the Respondent’s representatives at which point the Respondent became abusive and the Defendant was forced to abandon any further communication with the Complainant, which e-mail exchanges were presented as evidence before the Tribunal.

22. The Respondent further averred that if there was any breach of contract, it was on the Complainant’s part as follows:(a)Failing to comply with the Respondent’s Conditions of Carriage;(b)Failing to produce valid and adequate travel documents; and(c)Failing to comply with International Regulations on Air Travel and/or Kenyan and United Kingdom laws and regulations on Immigration.

23. The Respondent thus denied any liability including for breach of contract and averred that the Complainant was not entitled to damages of any kind.

24. The Parties subsequently filed written submissions, which we have considered. We shall not reproduce the submissions in this judgment but 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.

Hearing 25. The matter was heard by the Tribunal on 10th December 2021, when the parties presented their evidence. The Complainant appeared in person and presented her case whilst the Respondent was represented by legal counsel and had one witness.

26. There were no submissions filed by the parties.

Issues for determination 27. From the above, the following issues arise for determination by this Tribunal:(a)Whether the Tribunal has Jurisdiction;(b)Whether there was a contract of carriage between the Complainant and the Respondent;(c)Whether the Respondent breached the contract of carriage by not ferrying the Complainant from Nairobi to London;(d)Whether the Complainant had proper travel documents to travel from Nairobi to London; and(e)Whether the Complainant is entitled to the relief sought.

Analysis and Determination Jurisdiction 28. Though not contested we shall address the issue of jurisdiction first. The matters in the suit are in relation to consumer rights and as such this Tribunal has Jurisdiction as per the provisions of Section 69 (f) of the Civil Aviation Act.

Whether there was a contract of carriage between the Complainant and the Respondent 29. The Complainant purchased a return ticket No. 7062488005403 from the Respondent to travel from Heathrow Airport, United Kingdom, to Jomo Kenyatta International Airport, Nairobi, with the return trip from Nairobi to London slated for 3rd April 2017. The Respondent in its Response avers that the Complainant had indeed booked a return ticket with them for the said travel legs. There was therefore a contract of carriage between the Respondent and the Complainant requiring the Respondent to ferry the Complainant on its aircraft, with the return flight being Flight No. KQ 100 from Nairobi to London.

Whether the Respondent breached the contract of carriage by not ferrying the Complainant from Nairobi to London 30. Having found that there was a contract of carriage between the parties herein, the next question to be determined is whether the refusal to allow the Complainant to board its aircraft to travel to London amounts to breach of the said contract.

31. On 3rd April 2017, the Complainant went to Jomo Kenyatta International Airport with a view to boarding Flight No. KQ 100 to London but was denied boarding.

32. She stated that whilst undertaking travel from London Heathrow to Nairobi at the end of February 2017, she had presented to the British Immigration authorities an Emergency Travel Document (ETD) and also the British Resident Permit Card (BRPC) dated 23rd July 2014. According to the Complainant, the ETD was issued by the British Government and served a similar purpose to a passport.

33. The Complainant stated that she lost her ETD in Mombasa, Kenya when she visited in March 2017 (though in her evidence she indicated she lost the ETD/passport in 2016). She produced a police abstract dated 18th October 2019 in respect of reporting the loss of her travel documents). She also said that she operates in Kenya with the BRPC. She also held a Kenyan Identity Card No. 10875502.

34. The Complainant stated that when she first went to the United Kingdom in 2003, she left with a Kenyan passport, which passport expired and she thus disposed of it.

35. On being asked about the whereabouts of her British passport, the Complainant averred that she applied for one from the British High Commission but she was informed that the High Commission no longer issues passports.

36. The Respondent through its witness, a travel document controller with the Respondent airline, stated that the Complainant was denied boarding because she did not have a passport and what she produced were photocopies of the ETD and the BRPC. What however the Respondent airline required was an original passport, stating that the BRPC cannot be deemed to be a standard travel document. After denying the Complainant boarding, the Respondent scanned the Complainant’s documents to the British High Commission (BHC) for verification and he BHC replied in the negative. This the Respondent did as a carrier has to inform the country of destination of a passenger whose documents do not appear to be proper.

37. The Respondent’s witness cited Article 7 (Sub article 7. 1.7) of the Respondent’s Conditions of Carriage on lack of valid travel documents, which was the case at hand. He also stated that ETD is a one way travel document to enable one travel home and is issued by the home embassy (in this case the Kenyan High Commission in the United Kingdom). Further that BRPCs are issued to refugees with a Refugee Travel document. The Respondent averred that the BRPC cannot be used on its own. The Complainant thus needed a returning resident visa. The Respondent’s witness also stated that in one applied for asylum status and was granted by another country, if the person granted asylum travelled back to their country of origin, that they applied for asylum from, the asylum status was negated.

38. The Respondent stipulated that it would not allow a passenger to fly without original and valid documents and there is liability in case a carrier does this, the liability including being fined and also having the carrier’s landing permits cancelled. The Respondent’s witness drew the attention of the Tribunal to a document from the United Kingdom Home Office, titled Charging Procedures: A Guide for Carriers, with particular emphasis on Section 3. 2 titled ‘Persons arriving in the UK without documents’, which states that a carrier is liable to a charge where a person arrives with no documents, unless the carrier is able to provide evidence that a person held the correct document at departure. In addition, the Respondent also relied on and made reference to the Guidance document ECB08: What are acceptable travel documents for entry clearance, a document also issued by the United Kingdom Government.

39. In addition, the Respondent’s witness, stated that if the Complainant obtained the proper travel documents, she would be able to re-book and change the reservation. He confirmed that the Complainant indeed changed the reservation for Kshs. 18,040/-. Further, if the Complainant came with a Kenyan passport and her BRPC she would be allowed to travel if within a period of two years, which was the longest period that a United Kingdom resident could be out of the United Kingdom. After two years of being outside the United Kingdom, the resident would have to apply for a returning resident visa.

40. The Respondent’s witness confirmed that the Respondent has elaborate policies on refunds and can refund a ticketing sector but subject to class of travel.

41. Based on the foregoing, we find that the Respondent acted in accordance with its Conditions of Carriage and also the relevant Kenyan and United Kingdom laws on Immigration and thus did not breach the contract of carriage that it had with the Complainant by denying her boarding onto Flight KQ 100 destined for London Heathrow.

42. Had the Respondent ferried the Complainant to the United Kingdom with the documents that she had presented (which documents had been confirmed by the British High Commission as not being valid for travel), the Respondent would have been liable to sanctions from the United Kingdom Government, pursuant to the Charging Procedures: A guide for Carriers and supplemented by Guidance document ECB08: What are acceptable travel documents for entry clearance, both issued by the British Government.

Whether the Complainant had proper travel documents to travel from Nairobi to London 43. Based on the Travel Information Manual Automatic (“TIMATIC”) System which stipulated the documents required for travel to various countries and particularly the screenshot of the TIMATIC System provided by the Respondent indicating the passport requirements for entry into the United Kingdom, it is evident that the Complainant did not have valid and proper travel documents to enable to undertake travel to the United Kingdom.

44. The Complainant did not prove that she had proper and valid travel documents. Though the validity of the Complainant’s BRPC was not in contention, it could not on its own constitute complete travel documentation.

45. We thus find that the Respondent’s action in denying the Complainant boarding due to not having proper and valid travel documents was in order. The Respondent even went ahead to seek verification of the documents from the British High Commission in Nairobi, which came back with a negative response.

Whether the Complainant is entitled to the relief sought 46. The Complainant requested the Tribunal to make a decision for the Respondent airline to ferry her to the United Kingdom or refund her back her money equivalent to enable her but another ticket (from another airline) which she confirmed she could have done, mentioning British Airways in particular.

47. The Complainant further stated that she paid Kshs. 90,000/- for the ticket, for a one way journey. She did not have the receipt for the amount. However, the Respondent did not dispute this amount.

48. In light of our finding that the Complainant did not have valid and proper documents for purposes of travel to the United Kingdom and further that the Respondent did not breach the contract of carriage with the Complainant, we find no grounds to compel the Respondent to facilitate the Plaintiff’s travel back to the United Kingdom.

49. However, despite the Respondent not having an obligation to ferry the Complainant to the United Kingdom, we find that the Complainant is entitled to a refund of the ticket she purchased, for the travel segment from Nairobi to London. She stated that the price she paid for this segment was Kshs. 90,000/-, though there was no evidence provided to this effect. That said, the Respondent did not dispute this figure and thus it stands.

50. The Respondent should also refund the Complainant the penalty fee of Kshs. 18,040/- which she avers she was charged for change of reservation, as she sought to book another flight back to the United Kingdom, and which amount the Respondent confirmed.

Conclusion 51. We find that the Respondent did not breach the contract of carriage with the Complainant and that there are no grounds to compel the Respondent to facilitate the Plaintiff’s travel back to the United Kingdom, as the Complainant did not have valid and proper documents for purposes of travel to the United Kingdom.

52. Based on the foregoing, the Complaint is therefore without merit.

53. The Respondent should however refund the Complainant the amount of Kshs. 90,000/- being the ticket payment for the Nairobi to London segment, which amount is to be paid within forty five (45) days of the date of this judgment, failing which the Respondent will pay interest at a rate of 14% per annum from the date of judgement until payment is made in full.

54. The Respondent to also refund the Complainant the amount of Kshs. 18,040/-, being the penalty fee for change of reservation ticket payment for the Nairobi to London segment, which amount should also be paid within forty five (45) days of the date of this judgment, failing which the Respondent will pay interest at a rate of 14% per annum from the date of judgement until payment is made in full.

55. Save for the above refunds, the Complainant shall not be entitled to any other relief.

56. We are of the view that each party herein shall bear their own costs.

DELIVERED AT NAIROBI THIS 14TH DAY OF APRIL 2022In the presence of:Dr. Njaramba Gichuki - ChairpersonMr. Kuria Waithaka - MemberRtd. (Col.) Eutychus Waithaka - MemberCourt AssistantMs. Clara Kamami