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Ali Sheikh Adan vs United Airlines (Civil Case No. 1640 of 1996) [2001] KEHC 2 (6 June 2001)
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 1640 OF 1996
ALI SHEIKH ADAN PLAINTIFF
VERSUS
UNITED AIRLINES DEFENDANT
JUDGMENT
BETWEEN THE PLAINTIFF AND DEFENDANTS ONLY
According to the plaint, on the 25th day of January, 1995 or thereabouts “the deceased lawfully boarded the light aircraft registration number 54-UAC and (the)
same was negligently manned, controlled and/or piloted that it crashed and burst into flames, as a consequence whereof the said deceased
was fatally injured and his estate has suffered loss and damage, and claim damages under both the Law Reform Act and the Fatal Accidents
Act.”
The particulars of negligence are alleged to be:-
a)
Permitting or allowing the said aircraft to be flown when same was defective.
b)
Allowing the said aircraft to be flown when it was not safe to do so.
c)
Failing to take any or any due regard to the passengers therein”
The plaintiff in this case is Ali Sheikh Adan. He gave evidence before this court stating that he was the father of Adam Ali Sheikh
(now deceased) and has brought this suit on behalf of the estate and of himself. The plaint should have therefore been headed as
follows:
Ali Sheikh Adan
(suing as the legal representative of Adam Ali Sheikh)
Versus
United Airlines Ltd
Nonetheless, Ali Sheikh Adan admitted in his evidence that he was not an eye witness. That he never saw the accident occur but only
heard of the incident. Two days later he buried his son. He slaughtered camels and had rice for the funeral guests amounting to Kshs.
50,000/-.
He now claims compensation for the wrongful death of his son.
He also was aware of the list of dependents contained in the plaint. One of the dependents is now the deceased, others are married
or working. All were either children or brothers and sisters to the plaintiff. The deceased was a single man. He was a businessman.
At the time of his death he was aged 25 years old. The flight he boarded was going to Mogadishu. The deceased dealt with clothes
and food as a businessman.
When the plaintiff sued United Airlines as the defendants, the defendants filed third party proceedings. The court (Githinji, J)
in its 3rd party direction ordered that the trial proceed between the plaintiff and defendant. There would be a separate trial between the defendant
and the third party thereafter.
The third party called no evidence for this trial. The defendant called evidence and relied entirely on the facts of their case.
According to DW1 the director of the defendant’s company he received news of an aircraft crash accident over the game park,
Nairobi. His witness DW2 was responsible for the preflight preparation and planning. He stated that the flight in question was going
to Mogadishu to deliver a cargo of miraa. He was personally responsible in loading the aircraft. All along he was aware the charterer
was one Yusuf.
The aircraft later crashed killing the pilot. If any passengers were to board the aircraft this would be done at the customs. A separate
manifest for passengers together with their passport and name would be recorded. A departure card would also be submitted. To the
best of his knowledge DW2 did not recall there being any passenger. The said aircraft burnt on crashing.
From this evidence, I take that the defendants deny that the plaintiff was ever a passenger in the said aircraft. That if he was,
he was there illegally and thus the defendants were not liable towards the plaintiff for any wrongful act.
The plaintiff and the defendant entered into a statement of agreed issues which this court would answer as follows:-
The defendant admitted that they were in possession of the aircraft registration number 5Y UAC. In their defence they denied that
the deceased had ever boarded the aircraft. It was thus upon the plaintiff to prove that the deceased actually boarded the aircraft.
According to the plaintiff the deceased was burnt beyond recognition. He produced a death report to this effect. The question arises
whether boarding the aircraft by the deceased was lawfully done. The defendants say no; that this was only an aircraft for the delivery
of cargo.
I would find from the evidence before me and taking the circumstances of the case that the deceased was not a lawful passenger on
the said aircraft and or at all.
I would hereby dismiss the suit on liability between the plaintiff and defendants.
If perchance I am called to give an opinion on quantum, I would note that the claim made is under the Law Reform Act and the Fatal
Accidents Act. The plaintiff held no letters of administration for deceased estate. He recalls there being a police abstract report
and death certificate but was not aware of the letters of administration if any. As such he has no legal capacity to claim under
this head of damages and the same is dismissed.
If he had the letters of administration the plaintiff would have only been entitled to loss of expectation of life which I would
have awarded Ksh. 70,000/= as the conventional sum this court awards. There would have been no award for pain and suffering, as the
death was instant.
As to the Fatal Accident Act I believe the said act provides for the dependents as parents, children and or wife, who may claim.
The deceased had no children or wife. The plaintiff states he is the father to the deceased. I note the mother to the deceased has
also been named as a dependent. A claim by the parents would rightly be made.
For a claim under the Fatal Accident Act, the plaintiff was to show the deceased income (multiplicand) and the deceased ages or number
of years he would have worked (multiplier). Unfortunately, the plaintiff never proved the income the deceased earned. He merely states
that he was aged 25 years old. No proof of income was mentioned by the plaintiff. The plaint though pleads Ksh. 30,000/- and a multiplicand
at 30 years being retirement age then = Ksh. 30,000 x 12 x 30 years x 2/3 = 7.2 million
All this would have gone to the father and mother. As neither the income and years were proved I decline to make this award.
Special Damages
A claim of Ksh. 30,000/- was pleaded for funeral expenses the plaintiff stated he spent Ksh. 50,000/-. No other proof was given. What
he should have done is to tabulate each expense and bring supporting witnesses or documents to prove this. He claims this, according
to his advocate in submission and not in evidence, that the camels slaughtered came from his house and cannot be quantified. Special
damages must not only be pleaded but proved. This only means that he actually is guessing at the figures and cannot quantify how
much he spent. I find that this head of damages was not strictly proved.
No mention of the costs of death certificate was made. Ksh. 140/- was pleaded. No receipt was produced to support this claim.
As to the loss of $10,000 in the crash, all was required was perhaps a bank statement or transaction to prove that the deceased was
in possession of this amount of dollars. In 1995 I doubt if exchange rates were liberalized. I doubt if the deceased would have been
permitted to leave the country with $10,000 without there being some documentations with customs personnel. All that was required
was to produce the authority from central bank for this amount. If perchance the market was liberalized then the bank in question
would have produced a statement of this. There has been no evidence to this effect.
I would therefore dismiss this head of damage.
This suit stands dismissed on liability and quantum with costs to the defendants.
Dated this 6th day of June, 2001 at Nairobi.
M. A. ANG’AWA
JUDGE
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