Kihungi & another v Iberia Airlines of Spain SA [1991] KECA 15 (KLR)
The bottom line
#Kenya's Court of Appeal held an airline liable for a passenger's death after check-in, unless the airline can prove the passenger left its control.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.The place and time of the deceased's death in relation to the airport
- 2.Whether, prior to his disappearance, the deceased had been in the course of any of the operations of embarking
Key legal issues
#Whether the hearsay evidence of where the deceased died could found a finding of fact
It could not; the only admissible part of Mr Kingori's evidence was the production of exhibits, and there was no acceptable evidence of the exact time and place of death.
The trial judge had expressly ruled hearsay inadmissible yet then admitted the same type of hearsay on the vital issue of the place of death, without ascertaining whether the informants would be called. Neither Ramon nor the janitor testified, so their statements had no evidential value and should have been expunged or ignored. The difficulty and cost of obtaining direct evidence from Spain did not displace the peremptory rules of evidence. The question of where and when the deceased died therefore remained unsolved at the close of trial.
Whether the deceased was in the course of operations of embarking within Article 17 of the Warsaw Convention
Yes. Having checked in, been accepted for the flight, handed in his baggage, been issued a boarding pass and directed to gate 15, the deceased came under the control and direction of the airline and was actively engaged in operations of embarking.
The boarding card is issued only after a passenger is accepted for a flight; the deceased's name was entered in the passenger manifest and his baggage was accepted for loading, although tagged 'wait-listed'. The trial judge erred in finding he never went beyond being 'wait-listed' and in holding that embarkation began only after immigration and passport control. The court independently evaluated the evidence, which the trial judge had not directed his mind to, and found the deceased had put himself under the airline's control.
The incidence of the burden of proof under Article 17
Once Article 17's requirements are met, the carrier bears the onus of proving that the passenger, by his own acts, was engaged in operations other than embarking at the time of death; the airline failed to discharge that onus.
The airline pleaded that the deceased committed suicide or fell at Genova Street some 20 kilometres from Madrid Airport, which would put his movements beyond its control. If so, it was up to the airline to prove that plea. Because the court had found the deceased's movements came under the airline's control after check-in, and there was no legally admissible evidence supporting the defence's account of the death, liability under Article 17 remained established. The court endorsed the trial judge's statement of how the onus shifts.
Whether the damages award could exceed the 125,000 French Francs limit under Article 22
No; the trial judge correctly capped liability at the maximum allowable amount of 125,000 French Francs.
Counsel for the appellants argued that if further losses were proved the appellants could recover beyond Article 22. The court held there was no merit in that submission because the trial judge had taken into account the limitation on quantum imposed by Article 22 of the Convention and section 1(4) of the first schedule to the Carriage by Air (Colonies, Protectorates and Trust Territories) Order, 1953, and correctly assessed liability at the statutory maximum converted into Kenya Shillings.
Legal principles established
#- Once the requirements of Article 17 of the Warsaw Convention are satisfied (death during operations of embarking), liability attaches to the carrier unless it proves the contrary.
- After a passenger checks in and is accepted for a flight, the burden shifts to the airline to prove the passenger was not engaged in operations of embarking at the time of death.
- Hearsay evidence of informants who are not called to testify is inadmissible and of no evidential value, even where direct evidence from abroad is difficult to obtain.
- The operation of embarkation does not commence only after customs, immigration and passport control formalities; a passenger who has checked in and been accepted comes under the control and direction of the airline.
Court orders
#- 1.The judgment of the Superior Court dismissing the suit is set aside and substituted by a judgment in favour of the appellants against the respondent Airlines in the sum of 125,000 French Francs converted into Kenya Shillings at the rate as at the date of judgment
- 2.Interest on the judgment sum calculated from the date of the appellate judgment
- 3.Costs awarded to the appellants against the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- HCC Suit No 2159 of 1988
- Jurisdiction invoked
- Appeal from the High Court (first appeal against judgment and decree)
Relief refused
#Recovery of damages beyond 125,000 French Francs despite Article 22
The trial judge had correctly applied the limitation on quantum of damages imposed by Article 22 of the Convention and section 1(4) of the first schedule to the Carriage by Air (Colonies, Protectorates and Trust Territories) Order, 1953
Costs
Costs are awarded to the appellants against the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the final result the judgment of the Superior Court dismissing the suit is set aside and is substituted by a judgment in favour of the appellants against the respondent Airlines in the sum of 125,000 French Francs converted into Kenya Shillings at the rate as at to-day's date with interest calculated from today. Costs are awarded to the appellants against the respondent.
Requirements of Article 17 having thus been satisfied the carrier that is the respondent Airlines is liable for damages sustained by the appellants (plaintiffs) on account of the death of the deceased unless the carrier can show that at the time the deceased met his death he was engaged in operations other than those of embarking.
In our view the trial judge erred in holding that the operation of embarkation commenced only after the formalities relating to customs, immigration and passport control had been complied with.
The rest of his evidence and particularly what Ramon and the janitor had told him or showed him and as to where the exhibits were recovered from by the Spanish Authorities is hearsay, of no value at all, and ought to have been expunged
Issues in the judgment
#The judgment states 'No cases referred to' yet the trial judge's quoted judgment refers to a treatise (Shawcross and Beaumont on Air Law); this treatise is not formally listed among cited cases or statutes.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kihungi & another v Iberia Airlines of Spain SA [1991] KECA 15 (KLR)", Case Analysis (1991). Civil Appeal No 6 of 1989. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1991/15/eng@1991-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.