Dhanji v Kenya Airways Limited (Complaint 4 of 2019) [2019] KEMC 1 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was a contract between the claimant and the Respondent.
- 2.If the answer to (1) above is in the affirmative yes, whether that contract was breached by either the claimant or Respondent.
- 3.Whether the claimant is entitled to the reliefs sought.
Key legal issues
#Existence of a contract of carriage
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.
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.
Breach of the contract of carriage
The respondent breached the contract by communicating wrong boarding information; the claimant did not breach any term.
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.
Entitlement to refund of the ticket price
The claimant was entitled to a refund of USD 1,555.00, the contractual amount for the flight he never travelled on.
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.
Quantum of general damages under the Warsaw and Montreal Conventions
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.
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.
Legal principles established
#- 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
#- 1.Refund of USD 1,555.00 being the cost of the missed KQ flight
- 2.Award of USD 295.00 being the difference in cost of the Qatar Airways replacement ticket
- 3.General damages of USD 5,000 for breach of the contract of carriage
- 4.Costs of the claim to the claimant
- 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
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Not stated; the suit originated in the Chief Magistrates' Court at Milimani and was transferred to the Tribunal
Relief refused
#Refund of USD 1,850.00 being the full cost of the Qatar Airways replacement ticket
The claimant had already been compensated by the refund of the missed ticket; only the additional USD 295 difference was recoverable
General damages beyond the USD 5,000 awarded
The Tribunal assessed USD 5,000 as adequate compensation for the inconvenience
Costs
The claimant shall be entitled to costs of this claim.
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.
Once the respondent issued an E-ticket and even issued a boarding pass, a contractual relationship was created and that is our finding.
We therefore make a finding that the Respondent breached the contract of carriage.
The claimant never travelled as booked, he never utilized the funds. He is therefore entitled to a refund. We shall therefore order a refund of USD 1,555.00.
Consequently, we are of the view that an award of USD 5000 is adequate compensation as general damages.
The claimant shall be entitled to costs of this claim. Interest on USD 1,555 and USD 295 making a total of USD 1850 shall be from the date of filing of the claim and on general damages from date of this judgment.
Issues in the judgment
#The name and case number of the court/tribunal are not stated in the judgment; it is referred to only as 'this Tribunal' and the claim was 'filed originally in the Chief Magistrates' Court at Milimani which was later transferred to this Tribunal.'
No case number or citation appears anywhere in the judgment.
The relief as pleaded was USD 1,850,000 for additional flight charges on Qatar Airways, but the evidence and award both proceed on USD 1,850 - an apparent typographical discrepancy in the relief schedule.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.