[2024] KENCCART 1008 (KLR)

Kihoro v Qatar Airways (Tribunal Case E005 of 2023) [2024] KENCCART 1008 (KLR) (23 July 2024) (Judgment)

Neutral citation: [2024] KENCCART 1008 (KLR)

Republic of Kenya

In the National Civil Aviation Administrative Review Tribunal

Tribunal Case E005 of 2023

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

July 23, 2024

Between

Peter Kahuro Kihoro

Complainant

and

Qatar Airways

Respondent

Judgment

1. The Complainant is an adult Kenyan male. The Claimant brought this suit before the Tribunal by way of a Complaint, in a Statement of Claim dated 18TH October, 2023, accompanied by a Verifying Affidavit sworn by him on even date, praying for judgment against the Respondent for:(a)General damages for breach of contract.(b)Aggravated damages for emotional distress.(c)Special Damages in the sum of Ksh. 353,755/=.(d)Interest in (a), (b) & (c) above.(e.)Any other further relief that the Honourable Tribunal deems appropriate.

2. The Respondent, Qatar Airways, a duly licensed commercial airline within the Republic of Kenya, entered an appearance, and filed a Statement of Defence dated 2nd February, 2024.

Complainant’s Case 3. The Complainant, stated that at all material times, he was a paying passenger abroad the Respondent aircraft, headed to Montreal-Trudeau Canada. The Claimant was desirous of visiting Canada and had obtained a visitor’s visa from the Canadian High Commission, issued on 26th May, 2023, and due to expire on 30th January, 2024.

4. The Claimant avers that on or about 14th September, 2023, the Claimant lawfully purchased an air ticket No. 1572108476261 with the Respondent under booking Ref. RTZOQD for his intended voyage to Montreal-Trudeau Canada. According to the flight itinerary the Claimant was to leave Nairobi on the 18th of September, 2023 and was to have a layover at Doha and thereafter on the 19th September, 2023 he would proceed to Montreal-Trudeau.

5. The Claimant avers that on 18th September, 2023, the Claimant proceeded to Jomo Kenyatta International Airport where he checked in and after he was cleared by the security and relevant authorities to travel he was issued with two boarding passes being under Flight QR 1336 from Nairobi to Doha & under Flight QR 736 from Doha to YUL (Montreal-Trudeau).

6. The Claimant further avers that, he began his voyage and after a 6- hour flight, he arrived at Doha but unfortunately the Respondent failed to provide a hotel as expected and agreed upon during the purchase of his air ticket, thereby compelling him to seek accommodation elsewhere at his own expense. The said lay-over was for over 8 hours and he was to board a connecting flight to Canada at 0745hrs the following morning.

7. The Complainant stated that on 19th of September, 2023, the Claimant was in the airport and proceeded to check in and after presenting the boarding pass issued to him that is under Flight QR 763 from Doha to Montreal-Trudeau, for purposes of boarding the aircraft and upon inquiry he was informed that he could not travel to his intended destination.

8. The Claimant states that further inquiry from the airline stewards he was informed that he could not board the said aircraft and that he could not proceed to Montreal-Trudeau. He states that no explanation was offered to the him as to why he could not proceed to travel to Canada and he was therefore denied passage to Canada despite having paid the air tickets, valid documentation, travel papers and a valid visa issued by the Canadian High Commission.

9. The Claimant further avers that as a result of the Respondent’s actions of barring him from traveling and failing to issue him with any explanation whatsoever he has suffered tremendous financial loss and emotional distress to which he now seeks compensation.

10. The Claimant further avers that at no point throughout his journey from Nairobi to Doha was he barred or restricted from travelling/boarding and there was no communication whatsoever from the Respondent intimating that he would be barred from travelling therefore the Respondent’s actions were in clear breach of the Claimant’s legitimate expectation.

11. The Claimant claims that as a consequence, he lost Ksh. 353,755/= being the purchase price of the said ticket during his failed voyage being the costs of air tickets, transport costs to and from the airport in Nairobi and has been subjected to emotional distress and ridicule having been detained and prohibited from travelling in a foreign country without any proper explanation.

12. The Claimant avers that he is a businessman, a law abiding Kenyan, with no prior criminal records and a family man who was desirous of visiting Canada however, the Respondent denied him safe passage despite him having paid the air tickets, valid documentation, travel papers and a valid Visa issued by the Canadian High Commission all which was known to the Respondent.

13. The Claimant further avers that having bought a ticket from the Respondent and paid a substantial consideration for transport services a contractual agreement crystalized between him and the Respondent and the actions of the Respondent barring him from travelling were in breach of the said contract. He asserts that the particulars of breach were:a.Failure to abide by the contractual terms as agreed upon.b.Failure to facilitate safe passage from Doha to Montreal-Trudeau.c.Barring and/or prohibiting the Claimant from travelling to Montreal-Trudeau despite having a valid air ticket.d.Failure to offer any valid explanation to the Claimant as to why he was denied passage.

14. The Claimant thus claims:a.General damages for breach of contract.b.Aggravated damages for emotional distress.c.Special damages of Kenya Shillings Three Hundred and Fifty Thousand, Seven Hundred and Fifty-Five (Ksh. 353,755/=) being the amounts paid in purchase for the air ticket.d.Interest on a, b & c above.e.Costs of this suit and interests thereof.f.Any other further relief that the Honourable Tribunal deems appropriate.

Respondent’s Case 15. Respondent is a licensed airline operating in Kenya and regulated/licensed under the provisions of the Civil Aviation Act No. 21 of 2013.

16. The Respondent does not dispute that indeed the Claimant was scheduled to travel from Nairobi to Montreal through Doha (NBO-DOH-YUL) with the Claimant on 18th September, 2023.

17. The Respondent agrees that the claimant travelled from Nairobi to Doha on QR 1336 on 18th September, 2023 and that while in Doha, the claimant was intercepted by the Canadian Immigration Airport Liaison Officer who denied the claimant to travel.

18. The Respondent submits that it was the Canadian Immigration Airport Liaison Officer who did not allow the claimant to travel; as evidenced by an email in p.37-38 of the Respondent’s bundle of documents, which required the Complainant to contact the Canadian Embassy for the reason for refusal of clearance to travel.

19. The Respondent submits that due to the Embassy Liaison Officer, they could not allow the claimant to travel as per his ticket, moreover, the claimant did not follow up with the said Canadian Embassy to obtain reasons for the clearance denial; despite notice and instruction to do so from the Respondent and the Canadian Embassy Liaison Officer.

Hearing 20. After close of pleadings, the matter was set down for viva voce hearing and later written submissions. The matter was heard by the Tribunal via virtual Court on 30th April, 2024, when the parties were directed to present their evidence. The Complainant gave his evidence and presented his case whilst the Respondent’s witness was their legal counsel, Andrew Murunga.

21. The Claimant filed written submissions dated 29th May 2024. The Respondent filed written submissions dated 3rd June, 2024.

22. We shall not reproduce the submissions in this judgment as they were a close replica of the written pleadings but we 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

Issues for determination 23. 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 Doha to Montreal and back within the stipulated terms; and(d)Whether the Complainant is entitled to the relief sought.

Analysis and Determination Jurisdiction 24. 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 25. The Complainant provided valid evidence that on 14th September, 2023, the Claimant lawfully purchased an air ticket No. 1572108476261 with the Respondent under booking Ref. RTZOQD for his intended voyage to Montreal-Trudeau Canada. According to the flight itinerary the Claimant was to leave Nairobi on the 18th of September, 2023 and was to have a layover at Doha and thereafter on the 19th September, 2023 he would proceed to Montreal-Trudeau and back to Nairobi Kenya.

Whether the Respondent breached the contract of carriage by not ferrying the Complainant from Nairobi to Doha and back to Nairobi without the connection to Montreal and back 26. Having found that there was a contract of carriage between the parties herein, the next question to be determined is whether there was any breach of contract by the Respondent. On 19th of September, 2023, the Claimant was at the airport and proceeded to check in and after presenting the boarding pass issued to him that is under Flight QR 763 from Doha to Montreal-Trudeau, for purposes of boarding the aircraft and upon inquiry he was informed that he could not travel to his intended destination.

27. The change, as evidenced by email documentation from the Respondent as filed by the Respondent demonstrates that the change was occasioned by the denial of entry clearance by a Canadian Embassy Immigration Liaison Officer at Doha Airport, and not the Respondent’s decision. The Complainant acknowledged in cross-examination having received this email, albeit late.

28. After being obliged to reschedule his travel plans because of this, the Claimant did not travel to Montreal.

29. The Respondent submits that due to the Embassy Liaison Officer, they could not allow the claimant to travel as per his ticket. Moreover, the claimant did not follow up with the said Canadian Embassy to obtain reasons for the clearance denial; despite advice and instruction to do so from the Respondent and the Canadian Embassy Liaison Officer.

30. Based on the foregoing, we find that the Respondent did act in accordance with its tendered Conditions of Carriage, which accompany all tickets purchased by customers. Moreover, the airlines’ position complied with relevant Kenyan and common international law principles laws on contract and thus did NOT in fact breach the contract of carriage that it had with the Complainant; as Clause 14 of the Respondent’s Conditions of Carriage provides:14(1) You are solely responsible for complying with all laws, regulations, orders, demands and travel requirements of countries to be flown from, into or over, and with our regulations and instructions. We shall not be liable for any aid or information given by our agents or employee to you in connection with obtaining necessary documents or visas or complying with such laws, regulations, orders, demands and requirements, whether given in writing or otherwise; or for the consequences to you resulting from your failure to obtain such documents or visas or to comply with such laws, regulations, orders, demands, requirements.’

31. We hold that the Respondent cannot be held responsible for the denial of entry clearance, which precipitated the ticket cancellation and return of the Claimant accordingly.

Whether the Complainant is entitled to the relief sought 32. The Complainant requested the Tribunal to make a decision on 6 prayers, to which we find as follows:On Prayer (a): a. General damages for breach of contract.General damages are not awarded for breach of contract.On prayer b. Aggravated damages for emotional distress.The Tribunal declines to grant this prayer as an extension of the denial of prayer a. Moreover, the Claimant did does not plead with specificity the nature of this loss.On prayer c. Special damages of Kenya Shillings Three Hundred and Fifty Thousand, Seven Hundred and Fifty-Five (Ksh. 353,755/=) being the amounts paid in purchase for the air ticket. The Tribunal declines to grant this prayer as the Claimant did utilize the said ticket and he was ferried to Doha and the truncation of the trip was not of the Respondent’s fault but rather in compliance with the entry denial of the Canadian Liaison Officer.On prayer d. Interest on a, b & c above.The Tribunal declines this request as prayers a, b and c, stand dismissed.On prayer e. Costs of this suit and interests thereof. The Tribunal declines this request as no fault is attributable to the Respondent.On prayer f. Any other further relief that the Honourable Tribunal deems appropriate.By extension of our finding dismissing prayers a, b, c, d, and e, above, this prayer stands dismissed.Accordingly, the Tribunal dismisses this claim in full. Each Party to bear their own costs.

SIGNED AND DELIVERED AT NAIROBI THIS 23RD DAY OF JULY 2024In the presence of:Prof. Njaramba Gichuki - ChairpersonHon. Valentine Khaminwa – Vice ChairpersonHon. Hassan Issack Hache - MemberHon. Col. Rtd. John Kiplagat Kiili - MemberHon. John Ekale Aruma - MemberCourt Assistant Ms. Kimora Fardosa