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Court of AppealDismissedCivil Appeal 78 of 2005· [2008] KECA 179 (KLR)

TRANSWORLD (K) LIMITED v ROBIN MAKORI RATEMO [2008] KECA 179 (KLR)

Court of Appeal of Kenya
15 February 2008
BOBosireOOOnyango Otieno
1,567 words in judgment
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The bottom line

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Kenya's Court of Appeal held a balloon operator fully liable because it could not prove it took every possible care to prevent the explosion that injured a passenger.

What this practically means

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Executive summary

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This is the concurring judgment of Onyango Otieno JA in an appeal by Transworld (K) Limited against a High Court judgment (Bauni J, Kisii, dated 18 March 2004) awarding damages to Robin Makori Ratemo, a passenger injured when the appellant's hot air balloon exploded during take-off at the Maasai Mara on 12 July 2000. Onyango Otieno JA concurred with the draft judgment of Bosire JA. He held that even if the amended plaint invoking the Carriage by Air Act were disregarded, the original plaint's description of the balloon accident, read with the definition of 'aircraft' in section 2(1) of the Civil Aviation Act (Cap 394), and the parties' pleadings, evidence and submissions, left the carriage-by-air issue for the court's decision. Relying on Odd Jobs v Mubia and Shire v Thahiti Finance Co Ltd, he reaffirmed that a court may decide an unpleaded issue left to it by the course of the trial, and that there is no strict requirement to cite the governing statute in a plaint. On liability, he held that under Article 20 of the Warsaw Convention as amended by the Hague Protocol 1955 the respondent need not prove negligence; the appellant had to show it took all possible care, and a general airworthiness certificate without evidence of actual pre-flight checks did not discharge that burden. The trial judge's finding of 100% liability was affirmed, and the appeal was dismissed with costs to the respondent on 15 February 2008.

Key legal issues

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01

Whether the suit could proceed on the Carriage by Air Act despite the contested amendment of the plaint

Holding

Even treating the amended plaint as not filed, the original plaint, read with the definition of 'aircraft' in the Civil Aviation Act and the parties' pleadings, evidence and submissions, left the carriage-by-air issue squarely for decision by the court.

Reasoning

The original plaint described the plaintiff as a lawful passenger in a hot air balloon that exploded during take off. A hot air balloon is within the statutory definition of an aircraft. Combined with the amended defence which introduced carriage by air, the parties left the issue for the court. Following Odd Jobs v Mubia, a court may decide an unpleaded issue where the course of the trial shows it was left to the court.

p. 2
02

Burden of proof under Article 20 of the Warsaw Convention as amended by the Hague Protocol 1955

Holding

The respondent did not need to prove negligence; the appellant had to show it had taken all possible care to avoid the accident, and it failed to do so.

Reasoning

Although a witness testified the pilot inspected the balloon and an airworthiness certificate was in force, there was no evidence of what items were actually checked on the accident day or the extent and quality of the checks. The only party who could have avoided the accident was the appellant, and the cause of the explosion (a gas cylinder) was within its control. Liability of 100% as found by the trial judge was therefore correct, there being no evidence of any contribution by the respondent.

p. 2

Legal principles established

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  • A court may base a decision on an unpleaded issue where it appears from the course followed at the trial that the issue was left to the court for decision.
  • There is no requirement that a plaint must specifically cite the statute under which the suit is brought, provided the pleading leaves no doubt as to the law relied upon and the conduct of the case leaves that issue for decision.
  • Under Article 20 of the Warsaw Convention as amended by the Hague Protocol 1955, the carrier bears the burden of showing it took all possible measures to avoid the damage; a general airworthiness certificate is insufficient without evidence of the actual checks carried out on the day of carriage.

Court orders

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  1. 1.Appeal dismissed with costs to the respondent

Authorities

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Legislation

  • Civil Aviation Act (Cap 394)section 2(1)
  • Carriage by Air ActAct No. 2 of 1993 (cited generally)
  • Convention for the Unification of Certain Rules for International Carriage by Air as amended by the Hague Protocol 1955Article 20

Cases cited (2)

  • Shire vs. Thahiti Finance Co. Ltd
  • Odd Jobs vs. Mubia
    (1974) EA 476
On appeal from
High Court of Kenya at Kisii
H.C. Civil Suit No. 208 of 2001
Jurisdiction invoked
First appeal to the Court of Appeal under the applicable appellate statutory framework (judgment and decree of the High Court); no specific constitutional or statutory provision is quoted in this concurring judgment.

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 (K) LIMITED v ROBIN MAKORI RATEMO [2008] KECA 179 (KLR)", Case Analysis (2008). Civil Appeal 78 of 2005. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2008/179/eng@2008-02-15

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