[2021] KENCCART 339 (KLR)

REPUBLIC OF KENYA

IN THE NATIONAL CIVIL AVIATION ADMINISTRATIVE REVIEW TRIBUNAL

AT NAIROBI

APPEAL NO. 1 OF 2021

SKYMAX AVIATION LIMITED .........................APPELLANT

VERSUS

KENYA CIVIL AVIATION AUTHORITY.........RESPONDENT

RULING OF THE TRIBUNAL

1. The Appellant, an Approved Training Organization (ATO) and air operator in Kenya, brought this appeal before the Tribunal by way of a Memorandum of Appeal dated 22nd March 2021, making the following prayers:

a. That the Tribunal makes an order for restoration of validity of the Certificate of Airworthiness for aircraft registration 5Y-CCN for a period of six months from the date of the Appeal or until the matter of the Appeal for renewal of the Certificate of Airworthiness is heard and determined by the Tribunal 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 application is reviewed by the Tribunal and a determination of the interpretation of the Aircraft Maintenance Organization (AMO) Regulations is made so as to cause for a clear renewal of the Certificate of Airworthiness for standard validity of twelve (12) months; and

c. That the Tribunal review the Appellant’s appeal and to hear it expeditiously as the matter is urgent in nature due to the economic losses that the Appellant’s ATO is incurring, which included 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 the Certificate of Airworthiness for aircraft registration mark 5Y-CCN by the Respondent.

2. The Respondent is a regulator of civil aviation in Kenya. It responded to the Memorandum of Appeal by filing a Replying Affidavit dated 21st April 2021 and also raised a preliminary objection challenging the jurisdiction of the Tribunal to entertain the matter at this stage.

3. With the leave of the Tribunal the Appellant filed a supplementary affidavit dated 21st May 2021 and written submissions on 28th May 2021.

4. The Tribunal then directed the Parties to file their respective submissions, after which the Tribunal would consider and make a determination on the matter.

Submissions and Issues for Determination

5. The Parties subsequently filed written submissions, which the Tribunal has carefully perused and considered, alongside the pleadings and exhibits.

6. From the submissions, the following issues arise for consideration by the Tribunal:

a. Whether the Tribunal has the jurisdiction to entertain the matter at this stage as pleaded by the Respondent and whether the Tribunal ought to allow the Respondent’s Preliminary Objection;

b. Whether the Respondent should be directed by the Tribunal to immediately issue the renewal of the Certificate of Airworthiness for aircraft registration mark 5Y-CCN; and

c. Whether the prayers by the Appellant in its Memorandum of Appeal ought to be granted.

Direction

7. Upon a reading of the submissions and careful consideration of the matter, the Tribunal is of the considered view that whilst the subject matter is within the purview of the Tribunal, pursuant to the Civil Aviation Act, the matter is prematurely before the Tribunal, in view of the fact that the Respondent has not made an explicit decision on the application by the Appellant for renewal of the Certificate of Airworthiness for aircraft with registration mark 5Y-CCN.

8. Notwithstanding the Tribunal’s position in Paragraph 7 above, in the interest of promoting efficient aviation activity in the country, the Tribunal urges the parties to objectively discuss the matters in contention herein and work to amicably resolve them. The Tribunal in particular urges the Respondent to make a decision on the Appellant’s application for renewal of the Certificate of Airworthiness, in the shortest possible time, but not later than sixty (60) days from the date of these directions.

Conclusion

9. In light of the foregoing, the Tribunal does not make a decision on the merits of the appeal and has therefore only given direction to the parties.

10. That this matter be mentioned on 19th October 2021, which is immediately after the lapse of the sixty (60) days mentioned in Paragraph 8, for the parties to apprise the Tribunal on the progress in the matter.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 18TH DAY OF AUGUST 2021

IN THE PRESENCE OF:

DR NJARAMBA GICHUKI - CHAIRPERSON __________________________________

ALICE OWUOR - VICE CHAIRPERSON __________________________________

HON. PETER MUHOLI (PM) - MEMBER __________________________________

KURIA WAITHAKA - MEMBER __________________________________

RTD. COL. EUTYCHUS WAITHAKA - MEMBER __________________________________

COURT ASSISTANT - DONALD ASIAGO __________________________________