I INTRODUCTION

The civil aviation sector in Kenya is regulated primarily by the Civil Aviation Act No. 21 of 2013 (CAA) and the regulations promulgated thereunder. More regulations are in the pipeline to replace those under the previous Civil Aviation Act (Chapter 394, Laws of Kenya) and to give effect to various sections of the CAA. Currently, a number of regulations that govern, inter alia, airworthiness certification, personnel licensing, aerodromes, instruments and equipment, registration of aircraft, operation of aircraft, aviation security, approved training organisations and navigation of aircrafts that were introduced under the previous Civil Aviation Act continue to remain in force. More recently, the Kenya Civil Aviation Authority (KCAA) has drafted regulations that seek to govern the ownership and operation of remotely piloted aircraft systems.

The CAA establishes the KCAA and also establishes the National Civil Aviation Administrative Review Tribunal (NCAART). The KCAA regulates virtually every aspect of civil aviation in Kenya, including the licensing of aircraft service providers and operators, undertaking registration of aircraft in Kenya, certifying the airworthiness of aircraft and enforcing the penalties and fines arising as a result of breaches of the statutory provisions.

The KCAA has the statutory power to seize and detain an aircraft for the purposes of securing any unpaid charges or fees for any services performed by the KCAA or as a penalty for the contravention of a specific statutory provision.

The NCAART has the jurisdiction to hear and determine disputes relating to licences issued by the KCAA, any order or direction imposed by the KCAA pursuant to the CAA and the Regulations, and consumer protection compliance in the aviation sector. Kenya has entered into a number of bilateral air services agreements that regulate slots, traffic and transit rights.

Pursuant to Article 2(5) of the Constitution of Kenya (the Constitution), treaties or conventions ratified (whether before or after the promulgation of the 2010 Constitution) by Kenya automatically form part of Kenyan law. The Convention on International Interests in Mobile Equipment (the Cape Town Convention) and the Protocol to the Convention on International Interests in Mobile Equipment on Matters Specific to Aircraft Equipment (the Cape Town Protocol) are aviation conventions that Kenya has ratified. Kenya domesticated the Cape Town Convention and the Cape Town Protocol by introducing the International Interests in Aircraft Equipment Act (No. 27 of 2013) (the IIAE Act), which gives the High Court of Kenya (the High Court) jurisdiction in respect of claims brought under the Cape Town Convention or the Cape Town Protocol, or to grant relief and award damages as provided under the same.

Labour and employment issues are governed by the employment regime in Kenya, which applies to all employees generally. The operations of Kenya Airways (KQ) at Jomo Kenyatta International Airport are now undergoing a turnaround strategy under a new chairman and board, and will be led by a new CEO who assumed office on 1 June 2017.

For over 15 years there was no systematic case reporting system in Kenya, although in 2005 limited case law reporting recommenced. At present there is no definitive list of the treaties or conventions ratified by Kenya. It is therefore very difficult to be certain whether there may be a treaty or convention that has a bearing on this chapter. While we have tried to be as diligent as we can in researching all applicable conventions and treaties, be aware that the treaties and conventions covered in the following sections may not be an exhaustive guide to all of the treaties and conventions that may be relevant or applicable to the matters in this chapter.2

II LEGAL FRAMEWORK FOR LIABILITY

The key legislation governing liability in the aviation sector is the CAA and the Carriage by Air Act No. 2 of 1993 (CBAA).

Under the CAA, aircraft owners and operators are liable for breach of the following obligations:

  • a an operator is liable to a fine for failure to implement an effective drug and alcohol testing system approved by the KCAA;3
  • b an aircraft owner is liable for material loss or damage caused to any person or property on land or water by an aircraft, a person in an aircraft or an article or person falling from an aircraft while in flight, take-off or landing; 4 and
  • c the pilot and the owner of an aircraft are liable where the aircraft is flown in such a manner as to cause unnecessary danger to any person or property on land or water.5 Individual directors and other officers of a body corporate may also be liable for offences under the CAA or regulations made under it.6

The various regulations also contain provisions that render persons liable for breaches of the obligations listed thereunder.

i International carriage

The CBAA gives effect to the Convention for the Unification of Certain Rules Relating to International Carriage by Air signed at Warsaw on 12 October 1929 as amended by the Hague Protocol 1955 (the Warsaw Convention).

The CBAA establishes a liability regime for the death or injury of passengers, damage to cargo and damage occasioned by delay that occurs during carriage by air. The provisions of the CBAA are listed below (see Section VII, infra).

ii Internal and other non-convention carriage

The CBAA also provides for non-convention carriage by: (1) substituting any liability of a carrier in respect of the death of that passenger provided for under any written law or at common law with liability imposed by Article 17 of the Convention; and (2) pursuant to the Carriage by Air (Application of Convention) Order 19937 enacted under the CBAA, providing that all the provisions of the CBAA and the Warsaw Convention with the exception of Articles 3, 4, 6, 8, 9, 10 and 28 of the Warsaw Convention shall apply to all non-international carriage by air in Kenya.

iii General aviation regulation

This aspect of civil aviation is governed by the Civil Aviation (Operation of Aircraft Regulations) 2013 (the Operation of Aircraft Regulations) promulgated under the CAA. There are three levels of liability imposed for breaches of the provisions of the Operation of Aircraft Regulations as set out in the Schedule to the Operation of Aircraft Regulations. The levels of liability are as follows:

  • a any provision specified as an ‘A' provision is liable to a fine not exceeding 1 million Kenyan shillings for each offence or to imprisonment for a term not exceeding one year, or to both;
  • b any provision specified as a ‘B' provision is liable to a fine not exceeding 2 million Kenyan shillings for each offence or to imprisonment for a term not exceeding three years, or to both; and
  • c where there is no specific penalty imposed, the fine shall not exceed 2 million Kenyan shillings, and in the case of a second or subsequent conviction for the like offence, the fine will not exceed 4 million Kenyan shillings.
iv Passenger rights

In addition to the aforementioned, passenger rights are also covered under the consumer protection regime in Kenya, which consists mainly of Article 46 of the Constitution and the Consumer Protection Act 2012 (CPA). The CPA establishes a comprehensive legal mechanism for consumer protection in Kenya. While Article 46 of the Constitution provides that consumers are, inter alia, entitled to the right to goods and services of a reasonable quality, the CPA sets out the rights and obligations of consumers generally and under specific consumer agreements. Further, the CPA provides the means for seeking legal redress for breach of the provisions of the CPA by a supplier of goods and services under certain consumer agreements, prohibits and imposes sanctions for unfair consumer practices and provides for compensation. In relation to aviation, the CPA imposes an obligation on passenger air carriers to provide overnight accommodation or meals to passengers whose flights have been cancelled or are subject to long delays.8 At the date of writing, no regulations dealing with customer complaints, notification of delays, cancellations, overbooking, baggage concerns and compensation for passengers have been effected under the CPA. In the interim, passengers with complaints may approach the Consumer Protection Section of the KCAA, which is responsible for the enforcement of consumer rights and facilitates informal settlement schemes with airlines on an ad hoc basis.

v Other legislation

There are various other laws in force that may impose liability for those in the aviation sector. Laws relating to competition and product liability are covered in more detail elsewhere in this chapter. The Bribery Act (No. 46 of 2016) (the Bribery Act) came into force on 15 January 2017. The Bribery Act is modelled on the UK Bribery Act 2010 and was enacted to aid in the prevention, investigation and punishment of bribery in Kenya with particular focus on the private sector. Bribery offences under the Bribery Act are wide ranging and the Ethics and Anti-Corruption Commission has through the Bribery Act been provided with a more robust mandate to combat bribery in the public and private sectors. The Environmental Management and Co-ordination Act (Act No. 8 of 1999) regulates environmental activities for, among other things, operation of aircraft in accordance with specific emission standards.

III LICENSING OF OPERATIONS

i Licensed activities

Services that require licensing include air services,9 air navigation services10 and aviation personnel services.11 An applicant is required to demonstrate that he or she is able to comply with the relevant regulations, the CAA and other applicable laws and have the financial and technical capability to undertake the proposed activity. A licence may be valid from two to five years and certain conditions may be attached to it.

Pursuant to a circular issued by the KCAA in March 2014, the KCAA requires licence holders of both international and domestic air services that have not complied with the provisions of the Licensing of Air Services Regulations to ensure that 51 per cent of their voting rights are held by the state or Kenyan citizens by January 2016. This has forced a number of air service providers to restructure their shareholding.

ii Ownership rules

Any person seeking to use or operate an aircraft for the provision of any ‘air services' within Kenya must be licensed under the Civil Aviation (Licensing of Air Services) Regulations, 2009 (Licensing of Air Services Regulations). The Fifth Schedule to the Licensing of Air Services Regulations lists the categories of air services and aircraft requiring licensing.

The Licensing of Air Services Regulations prohibit any person from using an aircraft within Kenya for the provision of domestic and international air services without being licensed.12 For a category of domestic air service to be licensed, the Licensing of Air Services Regulations require, among other conditions, that an applicant should be a citizen of Kenya or in the case where the applicant is a body corporate or a partnership, 51 per cent of its voting rights are held by the state, a citizen of Kenya or both.13 The KCAA may exempt any person from these requirements having regard to the special nature of the air service offered. Similar conditions apply to any person seeking to operate an aircraft for the provision of any international air service, to, from or in transit through Kenya.14 The Licensing of Air Services Regulations provide for an exemption from the obligation to obtain an international air service licence for airlines of another state providing international scheduled air transport services and operating under and in accordance with any bilateral or multilateral agreement concluded between the Kenyan government and such other state.15 An applicant for an air service licence and air operator's licence must be able to demonstrate that it can meet its actual and potential financial obligations, for a period of 24 months from the start of operations and that it can also meet its fixed and operational costs incurred from operations for a period of three months from the start of operations without relying on revenue generated by the operations.16

Licensed air operators are required to notify the KCAA 14 days in advance of the operator's plans to change its controlling shareholding, changes in the ownership of any single shareholding that represents 10 per cent or more of the total shareholding in the air operator's parent or ultimate holding company, and changes in the particulars of the key personnel appointed by the licensee to be responsible and accountable for the operations of the air service.17 Where the KCAA deems that the aforementioned changes have had an impact upon the finances or control of the aircraft, it shall require the submission of an application for a new licence.18

iii Foreign carriers

Foreign air carriers may also be exempted from other licensing conditions. The KCAA may accept the production of documents issued by competent authorities in the states of origin confirming that a foreign national who will continuously and effectively control operations, meets the local integrity requirements under the Licensing of Air Services Regulation.19 Further, the KCAA may accept the production of documents issued by competent authorities in the states of origin confirming that a foreign carrier meets the KCAA's competence, technical and financial fitness requirements.20

Foreign-registered airlines wishing to operate as a franchise within Kenya must obtain approval from the KCAA and the prospective franchisee or franchisor must hold an operating authorisation issued in accordance with the Licensing of Air Services Regulations.21

In addition to meeting the operational and maintenance standards, foreign-registered operators are not permitted to operate a foreign-registered aircraft in Kenya unless that aircraft displays the nationality and registration markings prescribed in the manner required by the law of the state in which it is registered.22

IV SAFETY

i General operations requirements

No aircraft in Kenya will be registered until it has been certified as airworthy by the KCAA in accordance with its standards relating to safety. Inspection of airworthiness is undertaken at least every 12 months and an aircraft will not be permitted to operate in Kenya if it has not been certified as airworthy.23 In a limited number of scenarios airworthiness exemptions may be available.

Pursuant to the Operation of Aircraft Regulations, which regulates aviation safety in Kenya, the KCAA is required to establish a state safety programme.24 The safety programme will have requirements and set standards relating to, inter alia: safety hazards, maintaining safety on board aircraft and ensuring that an acceptable level of safety is implemented. Aircraft operators are required to prepare a safety management system with reference to their size and the complexity of their operations.25 Under the Operation of Aircraft Regulations, an air operator is required to submit to the KCAA the following materials, as part of its safety management system:26

  • a scope of safety management system;
  • b the safety policy and objectives;
  • c safety accountabilities;
  • d key safety personnel;
  • e documentation control procedures;
  • f coordination of emergency response planning;
  • g hazards identification and safety risk management schemes;
  • h safety assurance;
  • i safety performance monetary;
  • j safety audit;
  • k management of change;
  • l safety promotion; and
  • m contracted activities.

Additional requirements ensuring air safety during flight operations include:

  • a an aircraft shall not fly unless it carries the appropriate number of duly licensed, competent and qualified flight crew members (including pilots);27
  • b an operator is required to establish and maintain a training programme to acquaint its employees with preventive measures and techniques in relation to, inter alia, passengers, baggage, cargo, mail and equipment; and
  • c crew members, flight crew members and flight operations officers are required to undergo an initial emergency curriculum and drills and competency checks approved by the KCAA before they serve.

The KCAA may also specify on an air operator's licence conditions relating to safety that require compliance.

V INSURANCE

The Operation of Aircraft Regulations also governs the insurance aspect of civil aviation in Kenya.

All types of aircraft must have an insurance policy in respect of third-party risks.28 The insurance policy for commercial air transport aircraft (passenger, cargo, mail, remuneration or hire) must cover: passenger's liability; cargo; baggage; and mail risks. Notification of the minimum sum of insurance in respect of third-party risks shall be given by the KCAA. In accordance with the Insurance Act (Chapter 487, Laws of Kenya), insurance for aircraft registered in Kenya ought to be taken with a locally registered insurer unless prior approval from the Commissioner of Insurance has been obtained. However, a local insurer would be permitted to reinsure the liability with foreign re-insurers, which is common practice.

Compliance with the insurance requirements extends to aircraft on foreign registers as well as national registers. Foreign-registered aircraft flying over Kenyan airspace or making a technical stopover in Kenya (e.g., to refuel) must provide the KCAA with a copy of their insurance policy, which must comply with Kenyan insurance requirements.

VI COMPETITION

The Competition Act 2010 (the Competition Act) governs competition matters in Kenya. The Competition Act deals with restrictive trade practices, mergers, abuse of a dominant position and consumer welfare. The Competition Act establishes: the Competition Authority of Kenya, which is the regulatory body in respect of competition matters; and the Competition Tribunal, whose function is to hear and determine appeals from those aggrieved by decisions made by the Competition Authority.29

The Competition Tribunal was defunct as it lacked the necessary quorum in view of the fact that the appointment of its chairman had not been ratified by the Cabinet Secretary of the Ministry of National Treasury. In the case Republic v. Competition Authority & another ex parte International Air Transport Association (IATA),30 the High Court of Kenya issued an order compelling the Cabinet Secretary to ratify this appointment.

Following the Court Order, the Cabinet Secretary for the National Treasury gazetted the re-appointment of the chairman of the Competition Authority of Kenya, whose three-year term commenced in February 2016.

Cooperation agreements between operators could be construed to be a type of prohibited agreement under the Competition Act. A prohibited agreement includes an agreement between parties in a horizontal relationship and parties in a vertical relationship if their objective or effect is the prevention, distortion or lessening of competition in trade in any goods or services in Kenya, or a part of Kenya.31 Other practices considered to be restrictive under the Competition Act include: either directly or indirectly fixing purchase or selling prices; or dividing the market by allocating customers and suppliers; or applying dissimilar conditions to equivalent transactions with other trading parties.

It is possible to obtain an exemption from the Competition Authority when undertaking an activity that may be construed as a restrictive trade practice. Kenya Airways and KLM/Air France have obtained such an exemption in relation to co-ordinating schedules, setting fares and using measures to save costs through code-sharing agreements, scheduling alignments and, where necessary, adjusting capacity on the route between Nairobi and Amsterdam and beyond.

Kenya is a party to the Common Market for Eastern and Southern Africa (Comesa) and signed the Common Market for Eastern and Southern Africa Treaty (the Comesa Treaty) on 5 November 1993. The Comesa Competition Regulations (the CC Regulations) were promulgated under Article 55 of the Comesa Treaty, are binding in Kenya and have wide-reaching implications. The CC Regulations are binding in Kenya and have wide-reaching implications, most notably:

  • a all mergers (regardless of size) are notifiable to the Comesa Competition Commission (CCC) if the buyer, the target or both of them ‘operate' in two or more Comesa Member States;
  • b a penalty of up to 10 per cent of the merging parties' annual turnover in Comesa may be levied if the parties fail to notify the CCC within 30 days of the ‘decision to merge'; and
  • c the notification attracts a merger fee calculated at 0.1 per cent of the combined annual turnover or combined value of assets in Comesa of the parties to a merger, whichever is higher, provided that the fee shall not exceed $200,000.

VII WRONGFUL DEATH

The High Court has ruled that claims against carriers in respect of the death of passengers are to be brought under the Warsaw Convention and not normal rules of tort, and accordingly are subject to the two-year limitation period.32 There have been wrongful death claims against KQ before in relation to the January 2000 Abidjan crash. Investigation reports carried out by the French Accident Investigation Bureau revealed that a false stall warner was activated, and in response, the pilots took the aeroplane into a nose dive so as to recover from the stall, but because of the lack of visual reference at night the plane crashed into the sea.33 KQ compensated the families of 60 deceased Nigerians; each family received 13,429,000 Kenyan shillings.

KQ Flight 507 crashed on 5 May 2007 immediately after take-off from Douala International Airport.34 The Cameroon Civil Aviation Authority released its final report of the crash on 28 April 2010. The investigation found that the aircraft departed without clearance from air traffic control and that loss of control of the aircraft was the result of spatial disorientation and lack of crew coordination.35 In an out-of-court settlement, KQ compensated the families of the victims with an estimated 1.9 million Kenyan shillings each.

VIII ESTABLISHING LIABILITY AND SETTLEMENT

i Procedure

The CBAA gives effect to the liability provisions in the Warsaw Convention. In addition, Schedule 2 of the CBAA also contains provisions relating to the liability of a carrier in the event of the death of a passenger. This is as follows:

  • a liability shall be enforceable for the benefit of members of the deceased passenger's family who sustain damage by reason of his or her death;
  • b the action to enforce liability is to be brought by the deceased's personal representative or a member of his or her family as prescribed by the Schedule;
  • c only one action shall be brought in Kenya in respect of the death of one passenger;
  • d the amount recovered from the action shall be divided between entitled persons in such proportions as decided by the court before which the action is brought; and
  • e the court has powers to make just and equitable orders at any stage of the proceedings in view of the provisions of the Convention limiting liability of the carrier and any proceedings that have been or are likely to be commenced outside Kenya.

An action can be instituted in the High Court of Kenya against the carrier. The CBAA also provides for actions to be instituted before an arbitrator in the circumstances highlighted in the Convention. It is noteworthy that Section 5 of the CBAA provides that references in Section 3 of the Fatal Accidents Act (Chapter 32, Laws of Kenya) to a wrongful act, neglect or default shall include incidents occasioning liability under Article 17 of the Warsaw Convention. This means that an action for damages can be brought against the carrier by the executor or administrator of the deceased for the benefit of the deceased's wife, husband, parent or child. The Law Reform Act (Chapter 26, Laws of Kenya) will also apply as it confers rights for the benefit of the estate of the deceased in addition to rights conferred on the dependents by virtue of the Fatal Accidents Act and the Carriage by Air Act.

Section 7 of the CBAA expressly applies the limitation period stated in Article 29 of the Warsaw Convention. This provides that no action against a carrier's servant or agent that arises out of damage covered by the Warsaw Convention can be brought after more than two years from the date of arrival at the destination; the date on which the aircraft ought to have arrived; or the date on which the carriage stopped.

ii Carriers' liability towards passengers and third parties

With the exception of the passenger liability regime established by the CBAA there is no separate regime governing the operator's liability to passengers and third parties.

iii Product liability

There is no special aviation regime governing manufacturers' liability and Kenya does not have an industry involved in the manufacture of aircraft.

An owner's liability to an operator will prima facie be governed by the contractual agreement between the parties.

Currently, there is no specific statute that expressly governs owners' liability to passengers.

With respect to third parties, provisions in the CAA make the owner and not the operator of an aircraft liable for material loss or damage caused to any person or property on land or water by: an aircraft; a person in an aircraft or an article; or a person falling from an aircraft while in flight, take-off or landing.

iv Compensation

Pursuant to the Carriage by Air (Currency Equivalent) Order 199336 enacted under the CBAA,37 the equivalent in Kenyan currency of 250,000 gold francs, being the limited liability of the carrier for each passenger under Article 22 of the Warsaw Convention, is 1,306,286 Kenyan shillings or $20,000, whichever is higher.

Currently, there is no scheme of state-funded social security and medical support for those involved in accidents. There are also no local laws regarding post-accident family assistance. However, the Fatal Accidents Act (Chapter 32 Laws of Kenya) provides for actions to be brought for the benefit of the deceased's family whenever the death of a person is caused by a wrongful act, neglect or default is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof.

IX VOLUNTARY REPORTING

The International Civil Aviation Organization (ICAO) Table of Recommendations (Kenya) deals with Impediments to Reporting of Errors and Incidents.38 These recommendations include that although Kenya has provisions for mandatory reporting it does not have the same for voluntary reporting, and it should therefore amend its CAA to include provisions that promote voluntary reporting.39 Kenya needs assistance to develop guidance material on acceptable and unacceptable behaviour to promote a ‘just culture'.40 The CAA contains procedures on mandatory reporting of incidents41 and accidents.42 A pilot-in-command (PIC) shall notify the nearest appropriate authority,43 by the quickest available means, of any accident involving the aircraft that results in serious injury, death of any person or substantial damage to the aircraft.44 The PIC shall submit a report to the KCAA of any accident that occurred while he was responsible for the flight.45 Where an accident or incident occurs in or outside Kenya, the relevant person shall, as soon as practicable after he or she becomes aware of the accident or serious incident, notify the Investigator-in-Charge or the nearest air traffic service by the quickest means of communication available.46 The notification is to be made by the relevant person47 not later than 24 hours after becoming aware of the accident or serious incident through a written notice to the Investigator-in-Charge.48 Flight crew members or the operator of an aircraft involved in an accident or incident shall file a report with the Air Accident Investigation Department in the prescribed format by the Investigator-in-Charge. This should be done within 10 days of the occurrence or within 30 days for an overdue aircraft that is still missing.49 Each flight crew member involved in an accident or incident shall, if physically able and whenever the circumstances of the occurrence allow, submit a written account of events of the accident or incident to the Lead Investigator within 72 hours after the occurrence.50 If the crew member is not able to submit the written account within the stipulated time, the crew shall submit the statement as soon as practicable.51

The Lead Investigator may, by summons under his or her hand: call before him or her and examine any person as he or she deems appropriate; and take statements from all such persons he or she deems fit, and require each of such persons to make and sign a declaration of truth of the statement made by him or her.52

The final report of the investigation shall be submitted to the Cabinet Secretary before dissemination to any state under the regulations.53 The Cabinet Secretary shall release the final report within 12 months from the date of occurrence of the accident or incident, and if this is not possible, he or she may release interim reports periodically, but not later than on each occurrence of the accident or incident. With the approval of the Cabinet Secretary, the Investigator-in-Charge shall make the final report public after 30 days has expired pursuant to presentation to the Cabinet Secretary.54

A person who contravenes any orders or notices made shall be guilty of an offence and upon conviction, shall be liable to a fine or imprisonment or both, and in the case of a continuing contravention, each day of the contravention shall constitute a separate offence.55

X THE YEAR IN REVIEW

With an improving regulatory climate in Kenya generally, and east Africa offering attractive investment opportunities, Nairobi is becoming a regional hub for passenger and cargo traffic into the east African region.

The national flag carrier, KQ, has continued to make headlines over its financial difficulties. Nonetheless, the airline has gone through a number of significant personnel changes and implemented a capital optimisation programme in a bid to putting its past financial woes behind it.

On 26 October 2016, the chairman of the KQ board resigned and Michael Joseph, former Safaricom CEO, took over as the chairman. In May 2017, KQ announced the appointment of a new CEO, Sebastian Mikosz, with effect from 1 June 2017. On 25 May 2017, KQ announced that it reduced its full year net loss by more than half to 10.2 billion Kenyan shillings. This reflects a 60.9 per cent drop in its net loss for the 12 months ending March from last year's 26.2 billion Kenyan shillings.

Kenya Airways also opened a cargo express centre at JKIA aimed at increasing KQ cargo revenue as part of the airline's restructuring strategy. The centre is set to increase efficiency in e-commerce logistics, cargo-handling service, electronic customers' clearance and airport ground-handling services.

The express cargo centre is now exporting Kenyan-grown flowers to Sydney and Melbourne, Australia. KQ partnered with the Australian airline Qantas Airways to transport flowers via Johannesburg into Sydney and Melbourne. This venture is expected to see KQ cargo carry over 30 tonnes of flowers to Australia every month, a measure that KQ hopes will increase its revenue as part of the turnaround strategy.

Recently, JKIA was granted category one status and clearance to fly directly to the United States by the United States Federal Aviation Authority. This is as a result of Kenya complying with global safety and security standards. This development could see a drop in air fares to the United States and the direct flights could also reduce travel time and subsequently may lead to better trade partnerships and better tourism. The direct flights are expected to begin in June 2018.

The Kenya Airports Authority is also in the final phases of the implementing the first phase of the expansion of the Malindi International Airport. The second phase is expected to include expansion of the runway from 1.4km to 2.5 km. The Isiolo International Airport that was one of the vision 2030 flagship projects was finally completed and has been declared ready for official opening.

Several new routes were opened in order to increase the flights departing from JKIA. Kenya's safari airline Safarilink is expected to begin flights to and from Zanzibar from 1 July 2017. The new route is expected to operate four times a week as a means for travellers to easily connect to other safari destinations such as Masai Mara and Laikipia. Qatar Airways also announced that it would launch direct flights between Mombasa and Doha from 2018. This would increase local competition for KQ as well as other domestic airlines such as Fly 540 and Jambo Jet who operate flights between Mombasa and Nairobi. KQ also launched direct flights to Victoria Falls, Zambia, being the second-largest African airline to fly directly to the tourist attraction.

XI OUTLOOK

As part of the Vision 2030 objectives, which seek to make Kenya a middle-income economy by 2030, the Kenyan government has identified infrastructural development as an enabler of Kenya's transformation.

Pursuant to the Finance Bill 2017, the Treasury seeks to remove value added tax (VAT) on the importation of all aircraft spare parts, by amending the provisions of the 2013 VAT Act, which only exempts aircraft operators from paying the 16 per cent levy on approximately 400 types of spare parts. Air operators, including KQ, have been lobbying to have all spare parts declared VAT-exempt as the high tax on spare parts was hampering their turnaround bid. The exemption will, therefore, free up millions of shillings for the airline to put to use in the restructuring of its operations.

Kenya is one of the countries set to benefit from a £400 million global investment fund from British Airways. Some of the funds are expected to be used towards improving the newly built First and Club World lounges and to improve catering services at JKIA.

If enacted into law, the RPAS Regulations 2017 will make Kenya the second African country following Rwanda to regulate the commercial use of drones. There are plans by Astral Aviation, a Kenyan-based logistics firm to open up a drone airport at Kapese airstrip in Lokichar. This move is seen as a means to tap into the opportunities arising from oil exploration activities in the region. This facility would be the first of its kind in Africa and it is expected to be ready by February 2018.

1 Sonal Sejpal is a director, and Saahil Patel and Carol Masila are associates at Anjarwalla & Khanna.

2 For a list of treaties ratified by Kenya see the International Civil Aviation Organization's Treaty Collection: www.icao.int/secretariat/legal/Status%20of%20individual%20States/kenya_en.pdf.

3 Section 48 of the CAA.

4 Section 59 of the CAA.

5 The penalty for contravening this provision will be either a monetary fine not exceeding 200,000 Kenyan shillings or a suspension of privileges, withdrawal or cancellation of licence or any other sanction on the certificate or licence that the Director-General may deem appropriate. Section 61 of the CAA.

6 Section 65 of the CAA.

7 Legal Notice No. 162 of 1993.

8 Section 91 of the CPA.

9 Aviation services means any service performed by means of an aircraft for hire or reward and includes air transport service, aerial work and flight training; Regulation 2 Civil Aviation (Licensing of Air Services) Regulations 2009.

10 Aviation services means any service performed by means of an aircraft for hire or reward and includes air transport service, aerial work and flight training; Regulation 2 Civil Aviation (Licensing of Air Services) Regulations 2009.

11 Aircraft personnel services includes services offered by pilots, ground instructors, flight engineers, air traffic controllers, aircraft maintenance engineers, flight operations officers, flight radio telephony operators and cabin crew members; Regulation 4 Civil Aviation (Personnel Licensing) Regulations 2013.

12 Under Regulation 2 Air Licensing Regulations, ‘internal air service' means an air service operated within Kenya, and includes an air service that may pass through the airspace of another state without providing air service in that other state and ‘international air services' means an air service provided between Kenya and at least one other state and excludes an air service that may pass through the airspace of another state without providing air service in that other state.

13 Regulation 5 Civil Aviation (Licensing of Air Services) Regulations 2009.

14 Regulation 12 Civil Aviation (Licensing of Air Services) Regulations 2009.

15 Regulation 13(1) Civil Aviation (Licensing of Air Services) Regulations 2009.

16 Regulation 19 Civil Aviation (Licensing of Air Services) Regulations 2009.

17 Regulation 21(1) of the Civil Aviation (Licensing of Air Services) Regulations 2009.

18 Regulation 21(3) of the Civil Aviation (Licensing of Air Services) Regulations 2009.

19 Regulation 20(2) Civil Aviation (Licensing of Air Services) Regulations 2009.

20 Pursuant to Regulation 19(4) Civil Aviation (Licensing of Air Services) Regulations 2009, National air carriers are required to submit a business plan for the first two years of operation including information on the applicant's financial links with any other commercial activity that the applicant is directly or indirectly engaged in.

21 Regulation 52 and 53 of the Civil Aviation (Licensing of Air Services) Regulations 2009.

22 Regulation 3(3) Civil Aviation (Aircraft Nationality and Registration Marks) Regulations 2013.

23 Regulation 27 of the Civil Aviation (Operation of Aircraft) Regulations 2013.

24 Regulation 26(1) Civil Aviation (Operation of Aircraft) Regulations 2013.

25 Regulation 26(6) Civil Aviation (Operation of Aircraft) Regulations 2013.

26 Regulation 26(6) Civil Aviation (Operation of Aircraft) Regulations 2013.

27 Regulation 34 of the Civil Aviation (Operation of Aircraft) Regulations 2013.

28 Regulation 15(1) of the Civil Aviation (Operation of Aircraft) Regulations 2013.

29 Section 71(1) of the Competition Act.

30 [2015] eKLR.

31 Section 21(1) of the Competition Act.

32 See Charity Wairimu Wanjau v. Ethiopian Airlines HCCC No. 824 of 2003; Bayer EA Ltd v. Air France & another HCCC No. 326 of 1994 and Gikai Investment Company Limited v. British Airways Cargo HCCC No. 223 of 2003.

33 French Accident Investigation Bureau, Accident Report 5y-n000130 A310 CFIT after take-off, Abidjan, Ivory Coast, 30 Jan 2000 (2002).

34 Stephanie McCrummen, ‘Passenger Jet Disappears Over Cameroon' [2007] Washington Post Foreign Service.

35 The Cameroon Civil Aviation Authority, ‘Technical Investigation into the Accident of the B737-800 Registration 5Y-KYA Operated by Kenya Airways that occurred the 5th May 2007 in Douala' (2010).

36 Legal Notice 189 of 1993.

37 Section 6(4) of the Carriage by Air Act.

38 ICAO Table of Recommendations - Kenya. Available at: www.icao.int/safety/afiplan/Documents/Gap%20Analysis/EAC/Recommendations/Table%20of%20Recommendations%20-%20Kenya.pdf.

39 ICAO Table of Recommendations (Kenya), Focus Area 3.1.

40 ICAO Table of Recommendations(Kenya), Focus Area 3.3.

41 ‘Incident' means an occurrence, other than an accident associated with the operation of an aircraft that affects or could affect the safety of operation. Regulation 2(1) Civil Aviation (Aircraft Accident and Incident Investigation) Regulations 2013.

42 ‘Accident' means an occurrence associated with the operation of the aircraft in which a person is fatally or seriously injured as a result of being in the aircraft, or direct contact with any part of the aircraft, or the aircraft sustains damage or structural failure. Regulation 2(1) Civil Aviation (Aircraft Accident and Incident Investigation) Regulations 2013.

43 ‘Authority' in this instance means the KCAA. Regulation 2(1) Civil Aviation (Aircraft Accident and Incident Investigation) Regulations 2013.

44 Regulation 81(1) Civil Aviation (Operation of Aircraft) Regulations 2013.

45 Regulation 81(2) Civil Aviation (Operation of Aircraft) Regulations 2013.

46 Regulation 8(1) Civil Aviation (Aircraft Accident and Incident Investigation) Regulations 2013.

47 ‘Relevant person' means the pilot-in-command, operator or the owner of the aircraft at the time of accident or serious incident; or where the accident or serious incident occurs on or adjacent to an aerodrome in Kenya, the owner or operator of the aerodrome. Regulation 8(8) Civil Aviation (Aircraft Accident and Incident Investigation) Regulations 2013.

48 Regulation 8(2) Civil Aviation (Aircraft Accident and Incident Investigation) Regulations 2013.

49 Regulation 8(4) Civil Aviation (Aircraft Accident and Incident Investigation) Regulations 2013.

50 Regulation 8(5) Civil Aviation (Aircraft Accident and Incident Investigation) Regulations 2013.

51 Regulation 8(6) Civil Aviation (Aircraft Accident and Incident Investigation) Regulations 2013.

52 Regulation 14(3) Civil Aviation (Aircraft Accident and Incident Investigation) Regulations 2013.

53 Regulation 17(6) Civil Aviation (Aircraft Accident and Incident Investigation) Regulations 2013.

54 Regulation 18 Civil Aviation (Aircraft Accident and Incident Investigation) Regulations 2013.

55 Regulation 32 Civil Aviation (Aircraft Accident and Incident Investigation) Regulations 2013.