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Court of AppealPartially AllowedCivil Appeal 78 of 2005· [2008] KECA 178 (KLR)

TRANSWORLD SAFARIS (K) LTD v ROBIN MAKORI RATEMO [2008] KECA 178 (KLR)

Court of Appeal of Kenya
15 February 2008
3,234 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal dismissed a balloon accident injury claim because the passenger's lawyer pleaded ordinary negligence instead of the special aviation law that governs such claims.

What this practically means

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Executive summary

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This appeal challenged a High Court (Kisii, Bauni J) award of Shs.4,326,610 in damages to the respondent, a trainee at Sarova Mara Hotel who suffered severe burns when the appellant's hot air balloon caught fire and exploded during take-off at the Maasai Mara on 12th July 2000. The High Court had found the appellant 100% liable in common-law negligence despite acknowledging that the cause of the accident was unestablished. Githinji JA allowed the appeal on three grounds. First, the respondent's suit, pleaded in common-law negligence, was incompetent because the cause of action for passenger injury in an aircraft accident is exclusively created by the Carriage by Air Act, 1993 and the Warsaw Convention (as amended by the Hague Protocol 1955), which apply because a balloon is an 'aircraft' under the Civil Aviation Act; where a cause of action is statutory, the statute and the facts constituting it must be pleaded. Second, the trial judge erred in finding negligence without any factual basis and failed to consider the pleaded Article 20 statutory defence, which the undisputed evidence of inspection and a valid Certificate of Airworthiness supported. Third, Article 22(1) capped liability at Kshs.1,306,286, so the award exceeded the court's jurisdiction. The Montreal Convention 1999 was held not to apply, having not been domesticated in Kenya. The judgment and decree of the High Court were set aside and the suit dismissed, with no order as to costs.

Key legal issues

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01

Whether the cause of action for passenger injury in an aircraft accident arises from statute rather than common law

Holding

Yes - the cause of action is solely created by the Carriage by Air Act, 1993 and the Warsaw Convention; pleading common-law negligence discloses a different cause of action and is a substantive error rendering the suit incompetent

Reasoning

The court held the cause of action arising from an aircraft accident is prescribed by the 1993 Act and the Convention, not common law. Although public statutes need not be set out in pleadings, where a cause of action is statutory the plaintiff must specify the statute and plead the facts constituting it. The omission here was a substantive error of law going to the root of the action, not a procedural irregularity.

p. 4
02

Whether the trial court erred in finding negligence without evidence of the cause of the accident

Holding

Yes - the trial judge speculated that gas leaked from the burner despite no evidence, misdirected himself in basing liability on negligence without factual basis, and failed to consider the pleaded Article 20 statutory defence despite undisputed evidence that all necessary measures had been taken

Reasoning

No evidence established the cause of the accident; the Certificate of Airworthiness showed the balloon was airworthy. The judge speculated on the cause. The respondent's own evidence was that the pilot was not negligent and the crew confirmed inspection. The trial judge also failed to consider the pleaded statutory defence under Article 20, which the undisputed evidence supported.

p. 5
03

Whether damages were capped by the Convention

Holding

Yes - Article 22(1) limits carrier liability per passenger to 250,000 Francs (Kshs.1,306,286 or US$20,000, whichever higher), so the award of Shs.4,326,610 exceeded the court's jurisdiction

Reasoning

Article 22(1) of the Convention caps liability per passenger at 250,000 Francs, equivalent to Kshs.1,306,286 or US$20,000 per the Carriage by Air (Currency Equivalent) Order, 1993 (L.N. 189 of 1993). The superior court therefore had no jurisdiction to award Shs.4,326,610. The court noted it would have reduced damages to the statutory cap had liability been upheld.

p. 6
04

Whether the Montreal Convention 1999 replaced the Warsaw Convention in Kenya

Holding

No - the Montreal Convention has not been domesticated by the Kenyan Parliament, so the Warsaw Convention as amended by the Hague Protocol 1955 remains the applicable regime

Reasoning

The respondent's counsel argued that the Warsaw Convention 1929 as amended by the Hague Protocol 1955 was replaced by the Montreal Convention 1999. The court accepted the appellant's submission that the Montreal Convention has not been domesticated by the Kenya Parliament and therefore does not apply in Kenya.

p. 4

Legal principles established

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  • Where a cause of action is founded on a statute, the plaintiff must specify the statute in the pleadings and plead all facts constituting the cause of action; pleading a different (common-law) cause of action renders the action incompetent
  • A hot air balloon is an aircraft under section 2(1) of the Civil Aviation Act (Cap 394), and carriage by balloon falls within the Carriage by Air Act, 1993 and the Warsaw Convention, which create the exclusive statutory cause of action for passenger injury
  • In a claim under the 1993 Act, the claimant need only show injury on board the aircraft or during embarking/disembarking under Article 17, whereupon the burden shifts to the carrier, who is exonerated if it proves it took all necessary measures or that it was impossible to do so
  • Liability of the carrier is capped at 250,000 Francs (Kshs.1,306,286 or US$20,000, whichever is higher), and a court has no jurisdiction to award damages above that statutory limit

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment of the superior court set aside
  3. 3.Suit in the superior court dismissed
  4. 4.No order as to costs of the appeal and of the suit in the superior court

Authorities

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Legislation

  • Civil Aviation Actsection 2(1)
  • Carriage by Air Actsection 3
  • Carriage by Air (Application of Convention) Order, 1993L.N. 162 of 1993
  • Carriage by Air (Currency Equivalent) Order, 1993L.N. 189 of 1993
  • Warsaw Convention as amended by Hague Protocol 1955Articles 1, 17, 20, 21, 22(1), 24(2)
  • Montreal Convention 1999 (Convention for the Unification of certain rules for International Carriage by Air)

Cases cited (2)

  • Kihungi & Another vs. Iberia Airlines of Spain S.A.
    [1991] KLR 1
  • Byabazaire vs. Mukwano Industries
    [2002] 2 EA 353
On appeal from
High Court of Kenya at Kisii
H.C.C.C. No. 208 of 2001
Jurisdiction invoked
First appellate jurisdiction over the High Court decree (appeal against liability and quantum in negligence claim); Carriage by Air Act, 1993 and Warsaw Convention govern the substantive claim

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "TRANSWORLD SAFARIS (K) LTD v ROBIN MAKORI RATEMO [2008] KECA 178 (KLR)", Case Analysis (2008). Civil Appeal 78 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/178/eng@2008-02-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.