[2024] KENCCART 1007 (KLR)

Owino v Five Forty Aviation Ltd t/a Fly 540 (Complaint E006 of 2022) [2024] KENCCART 1007 (KLR) (2 April 2024) (Judgment)

Neutral citation: [2024] KENCCART 1007 (KLR)

Republic of Kenya

In the National Civil Aviation Administrative Review Tribunal

Complaint E006 of 2022

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

April 2, 2024

Between

Barbra Yvette Auma Owino

Complainant

and

Five Forty Aviation Ltd T/A Fly 540

Respondent

Judgment

1. The Claimant brought this suit by way of a Complaint, in a Statement of Claim dated 7th November, 2022, accompanied by a Verifying Affidavit sworn by her on even date, praying for judgment against the Respondent for:(a)Refund of being the ticket payment for the amount of Ksh.7940/= paid to Flight 540 for the cancelled flight scheduled for Mombasa to Nairobi.(b)Compensation for the amount of Ksh. 10,340/= being the ticket paid to Kenya Airways for travelling from Mombasa to Nairobi(c)Cost of the claim;(d)Interest in (a) above from date of filing claim until payment in full(e)Interest in (b) above from date of judgment until payment in full.

2. The Respondent, Fly 540, a duly licensed Kenyan commercial airline, did not enter appearance despite being served with the Statement of Claim electronically on 22nd November, 2022, as evidenced in the Claimant’s Affidavit of Service dated 5th December, 2022.

3. After several case mentions and ample opportunity for the Respondent’s to enter an appearance and respond; the matter was set down for formal proof hearing on 13th February 2024.

Complainant’s Case 4. The Complainant, stated that on or about 28th July, 2022, she booked a ticket with the Respondent for a round flight trip, from Mombasa to Nairobi and back, vide reference number 441E0BBA for the total sum of Ksh. 14,480/=.

5. The Claimant avers that on the 29th July, 2022 the Respondent cancelled the return flight (Nairobi to Mombasa) scheduled on 1st August, 2022 at 06:00 hours and subsequently scheduled the same for 31st July, 2022 at 18:30 hours which was later inconvenient with the Claimant.

6. The Claimant avers that upon inquiring on rescheduling the said flight on 31st August, 2022 (which was the amount of Ksh. 5,540/=), the Respondent charged her an additional ‘change fee’ amount of Ksh. 2,400/= and scheduled a flight on 5th August 2022 from Mombasa to Nairobi at 22:40 hours which amounted to Ksh.7940/=.

7. The Claimant further avers that, on the date of departure (5th August, 2022) the flight was again rescheduled several times until midnight (00. 00 hours) departure time. The Claimant says she only finally checked in and boarded the said flight at about 1. 15 am on 6th August, 2022, however, the Respondent’s flight attendants informed the passengers (including the Claimant) that the plane would not take off due to an engine failure.

8. The Complainant stated that the Respondent had breached the air travel contract with her by their:i)Canceling the flight scheduled to departure at 12am on 6th August, 2022 when the Claimant had already checked in and boarded the air craft.ii)Failing to ensure that the manifest aircraft is fit for purpose.iii)Failing to immediately refund the air ticket paid.

9. The Claimant firmly avers that due to the Respondent’s breach of contract, she has suffered unwarranted costs and loss to the extent of shouldering an extra amount of Ksh. 10,340/= for another available flight with Kenya Airways since the Respondent informed her that refund of the moneys was to be effected after 21 days.

10. The Claimant further avers that despite the constant and previous demand for a reimbursement and compensation by the Respondent on the same, the Respondent failed, neglected and refused to positively respond.

Respondent’s Case 11. The Respondent is an airline and a private limited liability company incorporated pursuant to the provisions of the Companies Act No. 15 of 2015, Laws of Kenya and regulated/licensed under the provisions of the Civil Aviation Act No.21 of 2013.

Hearing 12. The matter was heard on 13th February 2024. The Complainant appeared in person and presented her case whilst the Respondent was neither present nor represented by counsel. The Complainant was her sole one witness.

13. We shall not reproduce the evidence adduced and 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

14. The Complainant made oral submissions.

Issues for determination 15. 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 Mombasa and back within the stipulated terms; and(d)Whether the Complainant is entitled to the relief sought.

Analysis and Determination Jurisdiction 16. 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 17. The Complainant provided valid evidence that she purchased a return ticket No. 441E0BBA from the Respondent to travel from Moi International Airport, Mombasa on 29th July, 2022, to Jomo Kenyatta International Airport, Nairobi, with the return trip from Nairobi to Mombasa slated for 1st August, 2022 at 06:00 hours. There was therefore a contract of carriage between the Respondent and the Complainant requiring the Respondent to ferry the Complainant on its aircraft 5H462, with the return flight 5H417.

Whether the Respondent breached the contract of carriage by not ferrying the Complainant from Nairobi to Mombasa and back within the stipulated terms 18. 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 29th July, 2022, the Respondent cancelled the return ticket (Nairobi to Mombasa) scheduled on 1st August, 2022 at 0600 hours, the Respondent subsequently scheduled the same for 31st July, 2022 at 1830 hours which was later inconvenient for the Claimant. The unilateral change, as evidenced by email documentation from the Respondent as filed by the Claimant of flight date amounts to a breach of contract.

19. After being obliged to reschedule her travel plans because of this initial breach, on 5th August, 2022, the Claimant went to Jomo Kenyatta International Airport with a view to boarding Flight No. Fly 540 – 5H462 to Mombasa but the flight was delayed on several announcement counts. At 01. 15am on 6th August, 2022, after checking –in and embarking on the flight stairs, the Claimant was denied boarding. Such a refusal to allow the Complainant to board its aircraft to travel to Mombasa from Nairobi at 22. 40 hours on 5th August, 2022 amounts to breach of the said contract. This is a manifest breach of contract as the reason for the denial was that the aeroplane had technical issues; undermining the reasonable contractual expectation that the flight would be fit for its purpose. Based on the foregoing, we find that the Respondent did not act in accordance with its Conditions of Carriage and also the relevant Kenyan and common international law principles laws on contract and thus did in fact breach the contract of carriage that it had with the Complainant by a) unilateral variation of contract and b) denying her boarding onto FlightFly540 5H462 destined for Mombasa from Nairobi because of technical issues on the aeroplane.

Whether the Complainant is entitled to the relief sought 20. The Complainant requested the Tribunal to make a decision on 5 prayers, to which we find as follows:On Prayer (a): Refund of being the ticket payment for the amount of Ksh. 7,940/= paid to Flight 540 for the cancelled flight scheduled for Mombasa to Nairobi. We find that the Claimant is only entitled to the difference of KSh. 2,400/= as on 5th December, 2022, the Respondent reimbursed the original return fare fee of KSh. 5,540/= pursuant to a demand notice issued by the Claimant on 23rd September, 2022, albeit beyond the 21-day time frame for refund returns.On prayer (b): Compensation for the amount of Ksh. 10,340/= being the ticket paid to Kenya Airways for travelling from Mombasa to Nairobi. The Tribunal declines to grant this prayer as the Claimant did fully utilize the said ticket and she was ferried by Kenya Airways to Nairobi.On prayer (c): Cost of the claim; being an uncontested and uncontroverted claim, the Tribunal finds in favour of the Complainant for Ksh.20, 000/= in legal costs.On the prayer (d): Interest in (a) above from date of filing claim until payment in full at the rate of 14% per annum.By extension of our finding dismissing prayer (b), for prayer (e.) for: Interest in (b) above from date of judgment until payment in full; is hereby dismissed.

DELIVERED AT NAIROBI THIS 2ND DAY OF APRIL 2024PROF. NJARAMBA GICHUKI - CHAIRPERSONHON. VALENTINE KHAMINWA – VICE CHAIRPERSONHON. PETER MUHOLI – MEMBERHON. HASSAN ISSACK HACHE - MEMBERHON. COL. RTD. JOHN KIPLAGAT KIILI - MEMBERHON. JOHN EKALE ARUMA – MEMBER