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MagistratePartially Allowednot_stated_in_judgment· [2019] KEMC 1 (KLR)

Dhanji v Kenya Airways Limited (Complaint 4 of 2019) [2019] KEMC 1 (KLR)

Tribunal (unnamed in judgment; referred to only as 'this Tribunal')
16 December 2019
1,996 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi tribunal ruled that Kenya Airways breached a passenger's contract by giving wrong boarding information, awarding refunds plus USD 5,000 in damages.

What this practically means

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Executive summary

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The claimant, a frequent flyer, booked a Kenya Airways flight from Nairobi to Mumbai on March 24, 2016 for a medical appointment, ticketed at USD 1,555. He checked in and was issued a boarding pass indicating boarding at 0830hrs through gate 19, although the ticket showed departure at 0745hrs. When he presented himself at gate 19 he was told the flight had departed. He booked a same-day Qatar Airways ticket at USD 1,850 to make his appointment, and sued for the ticket cost, the Qatar ticket charges, general damages, costs and interest. The respondent filed a response denying the claim but called no witness at trial. The Tribunal framed three issues: existence of contract, breach, and entitlement to relief. Relying on Article 3(2) of the Warsaw Convention and Article 3(5) of the Montreal Convention, it held that issuance of the E-ticket and boarding pass created a contract of carriage. On the evidence of the conflicting timings, it found the respondent communicated wrong information and breached the contract, applying the principle that an unproved defence without witness testimony remains mere allegations. The Tribunal awarded a refund of USD 1,555, USD 295 being the difference in the replacement ticket cost, and USD 5,000 general damages, holding the Convention liability cap inapplicable because the damage was solely occasioned by the carrier. Costs and interest were awarded to the claimant. Judgment delivered at Nairobi on December 16, 2019 by a five-member bench chaired by Peter Muholi.

Key legal issues

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01

Existence of a contract of carriage

Holding

A contract of carriage was created upon issuance of the E-ticket and boarding pass, per Article 3(2) of the Warsaw Convention read with Article 3(5) of the Montreal Convention.

Reasoning

The claimant booked a ticket on March 17, 2016 for travel on March 24, 2016 and produced the ticket, boarding pass and luggage tag, none of which were challenged by the respondent. Relying on the Convention provisions making the passenger's ticket prima facie evidence of the contract of carriage, the Tribunal found that issuance of the E-ticket and boarding pass created the contractual relationship.

p. 3
02

Breach of the contract of carriage

Holding

The respondent breached the contract by communicating wrong boarding information; the claimant did not breach any term.

Reasoning

The ticket indicated departure at 0745hrs, the boarding pass indicated boarding at 0830hrs through gate 19, yet the flight had departed by the time the claimant presented himself. The confusion in timings was occasioned by the respondent, which provided wrong information and called no witness to rebut the claimant's assertions. On a balance of probability, breach was established.

p. 3
03

Entitlement to refund of the ticket price

Holding

The claimant was entitled to a refund of USD 1,555.00, the contractual amount for the flight he never travelled on.

Reasoning

The respondent argued the claimant was not entitled to the amount since he did not travel to India, but the Tribunal held this was the wrong philosophy: the claimant travelled, though not with the respondent, never used the booked flight, and never utilized the funds for it.

p. 4
04

Quantum of general damages under the Warsaw and Montreal Conventions

Holding

The Convention cap on compensation did not apply because the damage was solely occasioned by the carrier; USD 5,000 was awarded as general damages.

Reasoning

Article 19 of the Warsaw Convention and Article 22 of the Montreal Convention make the carrier liable unless it shows it took all measures to avoid the damage. The proviso to Article 22(1) excludes the cap where the carrier's omission occasioned the damage. The Tribunal considered the claimant's status as a valued Flying Blue business-class customer who missed a medical appointment and received no apology, and fixed USD 5,000 as adequate.

p. 4

Legal principles established

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  • Once an airline issues an E-ticket and a boarding pass, a contract of carriage is created with the passenger.
  • Where a defendant files a defence but calls no witness, the defence remains mere allegations.
  • The Montreal Convention cap on liability does not apply where the damage was occasioned by the carrier's own omission.

Court orders

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  1. 1.Refund of USD 1,555.00 being the cost of the missed KQ flight
  2. 2.Award of USD 295.00 being the difference in cost of the Qatar Airways replacement ticket
  3. 3.General damages of USD 5,000 for breach of the contract of carriage
  4. 4.Costs of the claim to the claimant
  5. 5.Interest on USD 1,555 and USD 295 (total USD 1,850) from the date of filing of the claim, and on general damages from the date of judgment
Jurisdiction invoked
Not stated; the suit originated in the Chief Magistrates' Court at Milimani and was transferred to the Tribunal

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, "Dhanji v Kenya Airways Limited (Complaint 4 of 2019) [2019] KEMC 1 (KLR)", Case Analysis (2019). not_stated_in_judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2019/1/eng@2019-12-16

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