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|Case Number:||Civil Suit 28 of 2008|
|Parties:||PATRICK KIMATHI MUCHENA v KENYA AIRWAYS LIMITED|
|Date Delivered:||31 Oct 2011|
|Court:||High Court at Nairobi (Milimani Law Courts)|
|Judge(s):||Kalpana Hasmukhrai Rawal|
|Citation:||PATRICK KIMATHI MUCHENA v KENYA AIRWAYS LIMITED  eKLR|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
IN THE HIGH COURT OF KENYA
CIVIL SUIT NO. 28 OF 2008
The Plaintiff is an Advocate of High Court of Kenya and was a passenger on flight No. KQ 311 departing from Dubai at the scheduled time of 2.25 a.m. on 30th January, 2007. He was to fly back to Nairobi. This fact is not disputed. What is disputed is the liability for the claims of contractual breaches by the Defendant, which is a licensed air carrier.
In brief the Plaintiff’s case was that in anticipation of the timely departure of the flight he presented himself at the Defendant’s counter at Dubai International Airport at 10 p.m. on 29th January, 2007. He was checked in and was advised by way of a note that the flight would be delayed for few hours signed by the Station Manager. The note indicated that the estimated departure time is 4.30 Dubai time. He accepted this initial intimation and checked in. The passengers were invited to have refreshment at Mc Donald/JASAN/LE MATIN/ROUND TABLE PIZZA. While he was taking the refreshment, the public announcement was made to the effect that the flight is further delayed to 6.00 p.m. on 30th January, 2007. He was shocked to get that announcement only within 30 minutes after checking in. He tried to get a staff of the Defendant but could not find any and thus tried to get some information from the DNATA office situate in Dubai Airport. After waiting for an hour or so, he was told that KQ COUNTER IS CLOSED so they cannot give him any information. After getting the phone number of station manager of the Defendant from a friend in Dubai, he called severally that number without getting any response. He then tried to sleep on the floor of the Airport without much success. In the morning, he called KQ office of Dubai and was promised that someone would be coming to address the issue. That someone (DW1) came at 1p.m. He had to call his Nairobi office to cancel all the appointments. The lady informed them that she was trying to get temporary visa for all the passengers to be taken to Dubai in a hotel. It took them two hours to get visas and at around 3.30 p.m they were taken to a hotel where he was asked to share the room with one Mr. Kamathi. On inquiry from the reception he was told that the Defendant had made the arrangement for sharing. Till that time the passengers were not offered any meal despite the fact that the lady had arrived and talked to them around 1 p.m. He took his meal at the hotel and could not take shower in a shared bathroom as well as he did not carry any change-over for a short flight to Nairobi expecting to be home in the morning. He further stated that he is a frequent flier and had stayed at Crown Plaza Hotel at Dubai. They were taken back to the Air port at around 8 p.m. and flew out around midnight. He complained that he sensed mischief in allowing the passengers to check in despite the expected delay and then to afford him no explanation and treat him with indignity for about 27 hours which he was not expecting or used to. After service of demand notice the Defendant responded that they were investigating. He denied that an offer of U.S. $100 and a meal voucher was made to him and added that even if it was made, he would have refused. He agreed that the terms and conditions were indicated on the ticket issued and that he did not pay for transport, room and meal provided at the hotel.
After the close of evidence from both sides the written submissions were filed.
Articles 19 and 20 of Warsaw Convention are relevant to this case and are relied upon by the Plaintiff. The first provision stipulates “The carrier is liable for damages caused by delay in the transportation by air of passengers, baggage or cargo”. The second one stipulates “In the carriage of passengers and baggage and in the case of damage caused by delay in the carriage of cargo, the carrier shall not be liable if he proves that he and his servants and agents have taken all the necessary measures to avoid damage, or that it was impossible for them to take these measures”
Before I comment on the submissions from the Defendant, I may agree that the onus to prove that damage is suffered lies on the party claiming the same, who is the Plaintiff in this case. I can at the outset find that in this case he has not proved financial loss and I cannot consider the same.
A portion of Para 603 of Halsbury’s Laws of England 4th Edition Volume 5(1) was relied upon which states: “No damages are recoverable for mere vexation and disappointment caused by the delay, but damages may be recovered for real inconvenience which is appreciable and capable of being specifically stated.”
In my view, even though it can be accepted that the delay in the flight including the cancellation of the flight is explained, though not satisfactorily , the way the passengers were handled thereafter was totally a disgrace and inhumane. DW1 could not controvert the detailed version of how the Plaintiff spent the night and day he spent while at the airport and at hotel and I would thus accept the same as credible.
I thus find that the mental anguish which the Plaintiff has suffered is not a common trauma or frustration which a passenger normally suffers from the delay in flights, and I do find so.
Doing best I can in these circumstances, I award a token award of Kshs.25,000/-to the Plaintiff in general damages for mental anguish and embarrassment. The Defendant shall also pay the costs of this suit.
Dated, signed and delivered at Nairobi this 31st day of October, 2011