The civil aviation sector in Kenya is regulated primarily by the Civil Aviation Act No. 21 of 2013 (CAA) as amended by the Civil Aviation (Amendment) Act 2016 (the Amendment Act) and the regulations promulgated thereunder. The management and operation of aerodromes is regulated by the Kenya Airports Authority Act (the KAA Act) and the regulations promulgated thereunder. The KAA Act establishes the Kenya Airports Authority (KAA), which is mandated with the construction, management and operation of aerodromes.
For over four years after the enactment of the CAA, the aviation sector in Kenya continued to use most of the regulations promulgated under the repealed Civil Aviation Act (Chapter 394, Laws of Kenya) (the Repealed Act)2 as only a few new regulations were issued under the CAA during that period. However, in 2018 and 2019 the Cabinet Secretary for Transport, Infrastructure, Housing and Urban Development (the Cabinet Secretary) issued and continues to issue new regulations to give effect to various provisions of the CAA.
The new regulations already in operation include those dealing with: the operation of aircraft for commercial air transport, air operator certification and administration, aircraft nationality and registration marks, certification, licensing and registration of aerodromes, licensing of air services, personnel licensing, air traffic services, aeronautical information services, aeronautical charts, instruments and equipment, approved maintenance organisations, approved training organisations, rules of air, safety management, surveillance and collision avoidance systems, communication procedures, meteorological services for air navigation, air accident and incident investigations, and airworthiness. The new regulations in the pipeline relate to unmanned aircraft systems, aerodrome design and operations, and consumer protection, among others. The Amendment Act legally recognised for the first time in Kenya the operation of unmanned aircraft systems including remotely piloted aircraft and, subsequently, the Kenya Civil Aviation Authority (KCAA) promulgated the Civil Aviation (Remote Piloted Aircraft Systems) Regulations, 2017 to regulate the ownership and operation of remotely operated aircraft. However, on 26 June 2018, the National Assembly Committee on Delegated Legislation on the Civil Aviation (Remote Piloted Aircraft Systems) Regulations, 2017 recommended that these Regulations be annulled in their entirety on, among other grounds, that the penalty for offences in the Regulations exceeded the penalty provided in the parent legislation (the CAA)3 and that the Regulations did not address issues of privacy and data protection. The National Assembly agreed with the recommendation and annulled the Regulations. Following the annulment, the KCAA started the process of promulgating new regulations that are in compliance with the recommendations of the aforesaid National Assembly Committee and has recently produced the draft Civil Aviation (Unmanned Aircraft Systems) Regulations, 2019 (the Draft Unmanned Aircraft Systems Regulations) and has shared them with the public and stakeholders for comment.
The CAA establishes the KCAA and 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, operators and aerodromes, 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 also regulates the mechanisms for mandatory and voluntary incident reporting systems through its Aircraft Accident Investigation Departments.4
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 does not have specific laws dealing with slot management, but it has entered into a number of bilateral air services agreements that regulate slots, traffic and transit rights. Slot management in Kenya is coordinated by the Ground Flight Safety Section of the KAA.
Pursuant to Article 2(6) of the Constitution of Kenya (the Constitution), treaties or conventions ratified (whether before or after the promulgation of the Constitution in 2010) by Kenya automatically form part of Kenyan law. In the aviation sector, Kenya has ratified 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), 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), as well as the Convention for the Unification of International Carriage by Air, opened for signature at Montreal on 28 May 1999 (the Montreal Convention). Kenya domesticated the Cape Town Convention and the Cape Town Protocol by enacting the International Interests in Aircraft Equipment Act (No. 27 of 2013), 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. Kenya has also domesticated the Warsaw Convention by enacting the Carriage by Air Act No. 2 of 1993 (CBAA). The Montreal Convention is operational in Kenya by virtue of Article 2(6) of the Constitution and the definition of 'Convention' in the CBAA. The CBAA, the Warsaw Convention and the Montreal Convention form the law on aviation liability in Kenya.
Labour and employment issues are governed by the employment regime in Kenya, which applies to all employees generally. The current labour law regime in Kenya therefore applies to employers and employees in the aviation sector. The Labour Relations Act 2007 restricts employees providing essential services from participating in strikes or lock-outs. 'Essential services' is defined in the Act to mean 'a service the interruption of which would probably endanger the life of a person or health of the population or any part of the population'. The employer of an essential employee has the right to delay the employee's ability to participate in a strike or lockout. There was a recent proposal to amend the essential services under the Fourth Schedule of the Labour Relations Act to include air traffic control services and civil aviation communication services, but this was not passed by Parliament.
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.5
II LEGAL FRAMEWORK FOR LIABILITY
The key legislation governing liability in the aviation sector are the CAA and the CBAA.
Under the CAA, aircraft owners and operators are liable for breach of the following obligations:
- an operator is liable to a fine for failure to implement an effective drug and alcohol testing system approved by the KCAA;6
- 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;7 and
- 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.8 Individual directors and other officers of a body corporate may also be liable for offences under the CAA or regulations made under it.9
The various regulations promulgated under the CAA also contain provisions that render persons liable for breaches of the obligations provided in the regulations.
i International carriage
The Montreal Convention is applicable in Kenya with respect to rights and liabilities of carriers, carriers' servants and agents, passengers, consignors, consignees and other persons in relation to carriage by air irrespective of the nationality of the aircraft.
The Montreal Convention establishes a liability regime for the death or injury of passengers, loss of or damage to cargo and damage occasioned by delay that occurs during carriage by air. The CBAA substitutes any liability of a carrier under any law in Kenya or at common law with respect to the death of a passenger with the liability imposed by Article 17 of the Warsaw Convention. As indicated above, the definition of the word 'Convention' in the CBAA includes any other Convention which may amend or replace the Warsaw Convention. Details on aviation liability under the provisions of the CBAA and the Montreal Convention are provided in Section VIII.
ii Internal and other non-convention carriage
The Warsaw Convention is applicable in Kenya for internal and non-convention carriage. The CBAA provides for non-convention carriage by allowing the Cabinet Secretary to make an order in the Kenya Gazette directing that the provisions of the CBAA relating to carriage by air should apply to other forms of carriage by air to which the Warsaw Convention does not apply.10 Pursuant to the above, the Cabinet Secretary gazetted the Carriage by Air (Application of Convention) Order in 199311 directing 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. There is no order that has been gazetted with respect to the application of the Montreal Convention for internal or non-convention carriage.
iii General aviation regulation
This aspect of civil aviation is governed by the Civil Aviation (Operation of Aircraft for Commercial Air Transport) Regulations 2018 (the Operation of Aircraft Regulations) promulgated under the CAA. The Operation of Aircraft Regulations revoked the Civil Aviation (Operation of Aircraft) Regulations 2013. The Operation of Aircraft Regulations regulate the general aviation requirements including aircraft maintenance requirements, flight crew requirements, passenger and passenger handling requirements, flight plans and air traffic control clearance and aircraft operating and performance limitations. There are three levels of liability imposed for breaches of the provisions of the Operation of Aircraft Regulations as set out in Part XIV of the Operation of Aircraft Regulations. The levels of liability are as follows:
- any provision specified as an 'A' provision in the Fourth Schedule to the Regulations 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;
- any provision specified as a 'B' provision in the Fourth Schedule to the Regulations 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
- 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.
The operation of aeroplanes is regulated by the Civil Aviation (Operation of Aircraft-General Aviation-Aeroplanes) Regulations, 2018 and the operation of helicopters is regulated by the Civil Aviation (Operation of Aircraft-Helicopter) Regulations, 2018.
iv Passenger rights
In addition to the provisions of the CAA, the CBAA and the Operation of Aircraft Regulations and other regulations on passenger and passenger handling, passenger rights are also covered under the consumer protection regime in Kenya, which consists principally 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. Article 46 of the Constitution provides that consumers are, inter alia, entitled to the right to goods and services of a reasonable quality and 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.12 Kenya is currently in the process of drafting the Civil Aviation (Consumer Protection) Regulations to provide for consumer rights and obligations including the rights of persons with disabilities or special needs, consumer complaint handling and procedures, notification of delays, cancellations, no-show baggage concerns and compensation for passengers. Passengers with complaints may approach the Consumer Protection Section of the KCAA, which is responsible for the enforcement of consumer rights and which 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 and in accordance with the noise levels recommended by the Cabinet Secretary for Transport and the National Environmental Management Authority. The Environmental Management and Co-ordination Act also empowers the National Environmental Management Authority to investigate actual or suspected air pollution by aircraft and make regulations for the control and prevention of pollution of the Kenyan coastal zone by, among others, aircraft.
III LICENSING OF OPERATIONS
i Licensed activities
The licensing of air services is regulated by the Civil Aviation (Licensing of Air Services) Regulations, 2018 (the Licensing of Air Services Regulations). These regulations license national and international13 services performed by means of an aircraft for hire or reward and also regulate franchises in the aviation industry. The categories of services licensed under the Regulations are listed in the First Schedule of the Regulations and include scheduled air services such as transport of passengers or cargo or mail and emergency medical services, aerial work services such as advertising operations, agricultural spraying, seeding and dusting, fire spotting, control and fighting, and recreational flying including micro lights and balloons.
An application for a licence for any of the categories of air services is made to the KCAA in the prescribed form. A licence will be given to an applicant if the applicant satisfies all the requirements of the Air Services Regulations.
An applicant for a licence is also required to demonstrate that he or she is able to comply with the CAA and other applicable laws and has the financial and technical capability to undertake the proposed air services. A licence may be valid for two to five years and may be issued subject to conditions.
ii Ownership rules
In Kenya, aircraft can be owned by the government of Kenya, a Kenyan citizen or persons legally resident in Kenya or any other person approved by the KCAA on condition that the aircraft owned by such person is not used for commercial air transport, flying training or aerial work. In the case of a body corporate, the same must be established under Kenyan law or the laws of such other country that the KCAA may approve.14
Any person seeking to use or operate an aircraft for the provision of any category of air services within Kenya must be licensed under the Licensing of Air Services Regulations. A person will qualify for a licence if that person is a citizen of Kenya or in the case of a body corporate or a partnership, at least 51 per cent of the voting rights are held by the Kenyan state or by a citizen of Kenya, or both.15 A person will be exempt from the above requirements if the kind of services the person wishes to provide will be of a special nature (services of a special nature includes services in the interest of social welfare, charity, for purposes of salvage on humanitarian grounds or of assistance in saving life or in the public interest). In addition, an exempt person who is carrying out services of a special nature must use a Kenyan registered aircraft (unless the KCAA allows the use of a foreign registered aircraft, which it may do if the aircraft meets the operational and technical standards in force in Kenya and the applicant meets the legal requirements relating to aviation safety and security, public health, environmental protection and business operations).16 An aircraft is eligible for registration in Kenya if it is either owned or leased by a citizen of Kenya, an individual citizen of a foreign country who is lawfully admitted for residency in Kenya, a corporation lawfully organised and doing business under the laws of Kenya or a government entity of Kenya and is not registered under the laws of any foreign country.17
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 operation of the air service.18 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.19
iii Foreign carriers
The KCAA may give an operating authorisation to an airline whose principal place of business is outside Kenya to operate scheduled services in Kenya. Such authorisation will be granted in the event that there is in force between Kenya and the state in which the airline has its principal place of business, an air service agreement or arrangement under which scheduled air services may be operated. The airline must also have been designated in accordance with the provisions of the agreement or arrangement and the KCAA is satisfied that the airline conforms to and complies with the terms and conditions of the agreement or arrangement.20
The KCAA may also issue a licence to a foreign air carrier to operate non-scheduled international air services if the carrier is appropriately certificated by a competent authority in the home state for the services. A foreign air carrier issued with the licence to operate non-scheduled air services must only take the traffic that it originally brought in. It must also, among other requirements of the Licensing of Air Services Regulations,21 furnish the authority with any statistics within 30 days of the date of request.22 Non-scheduled foreign aircraft in transit must also get authorisation from the KCAA to fly across Kenya or land in Kenya for non-traffic purposes.
In assessing competence, technical and financial fitness of foreign carriers, the KCAA may accept the production of licences, certificates and documents issued by competent authorities in their home state.23
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.24
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.25
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 in accordance with the Civil Aviation (Airworthiness) Regulations 2018 and an aircraft will not be permitted to operate in Kenya if it has not been certified as airworthy.26 In a limited number of scenarios airworthiness exemptions may be available.
Pursuant to the Civil Aviation (Safety Management) Regulations 2018 (the Safety Management Regulations) which regulate aviation safety in Kenya, the KCAA is required to establish a state safety programme (SSP), which is an integrated set of regulations and activities aimed at improving safety in the aviation sector. The Regulations require the SSP to be commensurate with the size and complexity of Kenya's civil aviation system.27 The SSP will be founded on the state safety oversight system implemented in accordance with the provisions of the CAA, the regulations made under the CAA from time to time, and state systems and functions, among other things. The Regulations require that the SSP 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, training organisations, approved maintenance organisations, air traffic services providers and organisations responsible for the type, design or manufacturer of aircraft are required to implement a safety management system (SMS) acceptable to the KCAA. The SMS should also be commensurate to the size and complexity of the operations of the above-mentioned bodies and be prepared in accordance with the framework prescribed in the Safety Management Regulations.28 The prescribed framework contains the following minimum elements for SMS implementation:
- safety policy and objectives;
- management commitment;
- safety accountability and responsibility;
- appointment of key safety personnel;
- coordination of emergency response planning;
- SMS documentation;
- safety risk management;
- hazard identification;
- safety risk assessment and mitigation;
- safety assurance;
- safety performance and monitoring;
- the management of change; and
- continuous improvement of the SMS.29
Additionally, the Operation of Aircraft Regulations contain requirements ensuring air safety during flight operations including:
- a requirement for an operator to establish and maintain a ground training programme that ensures that all flight crew members are adequately trained to perform their assigned duties including training and coordination in all types of emergency and abnormal situations;30
- a requirement that an aircraft shall not fly unless it carries crew members of a number and description required by the KCAA;31
- a requirement for the operator to establish and maintain training programmes for its crew members on security,32 safe transport of dangerous goods,33 use of all emergency and life-saving equipment required to be carried, and drills in case of an emergency evacuation34 and as required by the Technical Instructions for the Safe Transport of Dangerous Goods by Air issued by the Council of International Civil Aviation (the Technical Instructions);35
- a requirement prohibiting any person from carrying dangerous goods in an aircraft unless with written permission from the KCAA and in accordance with the Technical Instructions;36 and
- a requirement for the KCAA to ensure that operators not approved to transport dangerous goods have established a dangerous goods training programme that meets the requirements of the Technical Instructions, and have established dangerous goods policies and procedures in their operation manual.
In Kenya, a pilot in command of an aircraft is required to observe the rules of the air provided under the Civil Aviation (Rules of the Air) Regulations, 2018 including, observing the visual flight rules and the instrument flight rules. The Rules of the Air Regulations also prohibit any person whose function is critical to the safety of aviation in Kenya from undertaking his functions while under the influence of any psychoactive substance.37
An operator is required to observe other regulations that facilitate aviation safety including the Civil Aviation (Surveillance and Collision Avoidance System), Regulations, 2018 and the Civil Aviation (Communication Systems) Regulations. The KCAA may also specify on an air operator's licence conditions relating to safety that require compliance.
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.38 The insurance policy for commercial air transport aircraft (passenger, cargo, mail, remuneration or hire) must cover: passengers' 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.39 However, a local insurer would be permitted to reinsure the liability with foreign reinsurers, 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) have to provide the KCAA with a copy of their insurance policy, which must comply with Kenyan insurance requirements.
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. It also 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.40
Cooperation agreements between operators may 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.41 Other practices considered to be restrictive under the Competition Act include directly or indirectly fixing purchase or selling prices; 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 coordinating 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), which were promulgated under Article 55 of the Comesa Treaty, are binding in Kenya and have wide-reaching implications. The most notable implications of the CC Regulations are the following:
- that 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;
- 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
- 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 does not exceed US$200,000.
VII WRONGFUL DEATH
Kenyan courts have held that the applicable law on wrongful death claims against carriers on international carriage is the CBAA and the Montreal Convention and not normal rules of tort, and accordingly they are subject to the two-year limitation period.42 Kenyan courts have not made clear pronouncements on whether the Montreal Convention is applicable in Kenya with respect to internal carriage. This has left it to the aviation law practitioners in Kenya to debate on the applicability of the Montreal Convention on internal carriage with one section arguing that it requires the Cabinet Secretary for Transport to make an order for the Convention to apply and the other section arguing that the Convention is applicable by virtue of the Carriage by Air (Application of Convention) Order, 1993 made under the CBAA in respect of the application of the Warsaw Convention to internal carriage. There have been wrongful death claims against Kenya Airways (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.43 KQ compensated the families of 60 deceased Nigerians; each family received 13.4 million Kenyan shillings.
KQ Flight 507 crashed on 5 May 2007 immediately after take-off from Douala International Airport.44 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.45 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
The CBAA gives effect to the liability provisions in the Warsaw Convention. The definition of the Warsaw Convention in the CBAA includes 'any other convention which may amend or replace the said convention and is ratified or acceded to by the Government'. The Montreal Convention was ratified by Kenya on 7 January 2002 and despite the Kenyan Parliament not domesticating the Convention to date, the same is applicable in Kenya by virtue of Article 2(6) of the Constitution. Accordingly, the law on liability and settlement in Kenya is the CBAA and the Montreal 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:
- liability shall be enforceable for the benefit of members of the deceased passenger's family who sustains damage by reason of his or her death;
- 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;
- only one action shall be brought in Kenya in respect of the death of one passenger;
- 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
- 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 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 35 of the Montreal Convention. This provides that no action against a carrier's servant or agent that arises out of damage covered by the 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 and the Montreal Convention 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.
Under the CBAA, operators are liable to compensate for damage sustained in the event of death or wounding of an air passenger, destruction or loss or damage of baggage and damage occasioned by delay of carriage of air passengers, baggage or cargo.
Kenyan courts have strictly applied the Montreal Convention and in particular the limit provided in Article 21 of the Montreal Convention on compensation in case of injury or death of a passenger. Under Article 21 of the Montreal Convention the damages payable to a passenger are a minimum of 100,000 special drawing rights (SDR) per passenger. The compensation limit shall not exceed 100,000 SDR if the carrier proves that the damage was not due to the carrier's negligence but due to the negligence of a third party. The sum mentioned in terms of SDR refers to the SDR as defined by the International Monetary Fund. The compensation limit is renewed every five years and is currently at 113,100 SDR (approximately US$150,000 and 15,289,402 Kenyan shillings).
Currently, there is no state-funded social security and medical support scheme for those involved in accidents. Also there are 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.
Following the annulment of the Civil Aviation (Remote Piloted Aircraft Systems) Regulations, 2017, KCAA started the process of promulgating new regulations to regulate not only the remote piloted aircraft but all unmanned aircraft systems. KCAA has produced the draft Civil Aviation (Unmanned Aircraft Systems) Regulations, 2019 (the Draft UAS Regulations), which has been shared with the public and stakeholders for public participation. The Draft UAS Regulations categorise Unmanned Aircraft Systems (UAS) into low risk, medium risk and high risk depending on the amount of risk the UAS poses to the public and property, and regulates all aspects of UAS including ownership, manufacturing, registration and licensing of UAS personnel. The Draft UAS Regulations also contain provisions on security and privacy of person and property, which were some of the reasons why the first regulations were annulled.
Under the Draft UAS Regulations, a person will be eligible to own a UAS if that person is a Kenyan citizen or a resident in Kenya of at least 18 years of age, a company registered in Kenya or the national government or county government. An owner or operator of a UAS must register the UAS with the KCAA and in determining whether to register the UAS, the KCAA must consider national security and relevant and regional obligations and commitments of Kenya under treaties and agreements, terrorism and organised criminal activities, preservation of regional peace, security and stability among other considerations.
The Draft UAS Regulations require any person who operates a UAS to apply for and be issued with a Remote Aircraft Operator Certificate.
X VOLUNTARY AND MANDATORY REPORTING
The Civil Aviation (Aircraft Accident and Incident Investigation) Regulations 2018 (the Aircraft Accident and Incident Regulations) require the Aircraft Accident Investigation Department (the AAI Department) of the KCAA to establish a mandatory incident reporting system and a voluntary incident reporting system. Any person having knowledge of any safety related event other than an accident46 or incident47 may make a voluntary report to the AAI Department and provide any information that the person believes is relevant. The Aircraft Accident and Incident Regulations encourage voluntary reporting to the AAI Department by providing that the details of the person making a voluntary report should not be revealed and guaranteeing that the voluntary report shall not be used against the person who made the report.48
Additionally, the Safety Management Regulations require the KCAA to establish a voluntary safety reporting system to collect safety data and safety information not captured in the compulsory reporting system.49 An operator or other aviation service provider is also required to establish a voluntary safety reporting system to facilitate collection of information on actual or potential safety deficiencies that may not be captured by the compulsory safety reporting system. The safety reporting system should not be punitive and shall afford protection to the source of the information.
Both the Aircraft Accident and Incident Investigation and the Operation of Aircraft Regulations contain procedures on mandatory reporting of incidents and accidents. A pilot-in-command (PIC) is required to notify the nearest appropriate authority,50 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.51 The PIC should also submit a report to the KCAA of any accident that occurred while he or she was responsible for the flight.52 Where an accident or incident occurs in or outside Kenya, the relevant person53 shall, as soon as practicable after he or she becomes aware of the accident or serious incident, notify the chief investigator54 or the nearest air traffic service by the quickest means of communication available.55 The notification is to be made by the relevant person no later than 24 hours after becoming aware of the accident or serious incident through a written notice to the chief investigator.56 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 format prescribed by the chief investigator. This should be done within 10 days of the occurrence or within 30 days for an overdue aircraft that is still missing.57 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 investigator-in-charge58 within 72 hours after the occurrence.59 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.60
The investigator-in-charge may, by summons under his or her hand, call before him or her and examine any person as he or she deems appropriate; and require such person to answer any question or furnish any information, or produce any books, papers and articles that he or she may consider relevant, and retain any such books, papers, documents and articles until the completion of the investigation.61
There is no substantive law in Kenya for the protection of whistle-blowers and there has been a persistent cry from certain sections of the public and the justice sector for such a law to be enacted. Some existing legislation does contain provisions that protect informants and witnesses. For example, Section 21 of the Bribery Act protects a whistle-blower, informant or a witness in a complaint case of bribery from intimidation or harassment. The Act criminalises disclosure of details of whistle-blowers or any form of harassment. In the aviation industry and, in particular, in mandatory and voluntary reporting, Regulation 13(2) of the Aircraft Accident and Incident Regulations requires a voluntary safety reporting system established by service providers to be non-punitive and to afford protection to sources of information.
XI THE YEAR IN REVIEW
With an improving regulatory climate in Kenya generally, and East Africa offering attractive investment opportunities, Nairobi continues to be a regional hub for passenger and cargo traffic into the East African region and elsewhere on the continent.
The national flag carrier, KQ, is ranked among the best airlines in Africa and the second best in East Africa after Ethiopian Airlines.64 KQ commenced daily direct flights to New York, United States for the first time with the maiden flight taking off from Jomo Kenyatta International Airport, Nairobi (JKIA) on 28 October 2018. There are also plans to fly KQ directly to Washington and Atlanta upon establishment of a suitable codeshare agreement with US Airlines. KQ has also increased frequencies on some of its routes within Africa and resumed its Rome and Geneva services on 12 June 2019 after stopping in 1991.65 KQ scored highly on safety in a recent audit conducted by the International Civil Aviation Organization. The airline scored 78 per cent, which was an improvement from the previous score of 66 per cent in 2008.
As part of the plans to enhance the East Africa hub role of JKIA and in support of the JKIA turnaround strategy, the government through a Cabinet Memorandum (CAB 18/28) proposed a 30-year concession agreement between KQ and the Kenya Airports Authority (KAA) under which KQ was to operate, manage and develop the JKIA through a special purpose vehicle at a concession fee. The government indicated that the proposed concession was to implement its policy which seeks to consolidate key aviation assets to realise significant operational efficiencies and synergies, restoration of the aviation sector's regional and international competitiveness, protection of JKIA's regional hub status, improved diversification and utilisation of JKIA's resources and support for KQ's turnaround. Subsequently, the concession transaction was commenced by a privately initiated investment proposal (PIIP) by KQ to the KAA but the same has been halted because of misplaced political influence and resistance from certain politicians and stakeholders including the National Assembly's Public Investment Committee (PIC). In recommending postponement of the concession transaction, PIC observed that among other reasons for postponement, the transaction was being rushed despite concerns of the transaction's financial viability and concerns on loss of jobs at the KAA and that the KAA was a profit-making state corporation while KQ has been posting losses in its most recent financial statements. Recent news indicates that KQ plans to abandon the concession and try other profit-making ventures.
The cargo express centre established at JKIA in 2017 has increased 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.
The KAA finalised the first phase of the expansion of the Malindi International Airport in 2017 but the project has not been finalised. Businesses in the coastal town, especially hotel businesses, have complained that the delay in finishing the airport is hurting their business. Tourists who want to travel to Malindi have to fly to Nairobi then to Moi International Airport in Mombasa before travelling by road to Malindi. The second phase of the airport is expected to include expansion of the runway from 1.4km to 2.5km. The Isiolo International Airport that was one of the Vision 2030 (the economic blueprint for the country and at the heart of government policy) flagship projects was also completed and is now in use. The construction of a vital access road known as Port Reitz – Moi International Airport Access Road in Mombasa has improved access to and from Moi International Airport in Mombasa. The construction of a runway at Kisumu International Airport is still ongoing. The project includes the construction of a parallel taxiway, cargo apron and public car park.
Additionally, the penetration of low-cost airlines in the Kenyan market has increased following the construction of new airports and airstrips. The Western Kenya route has increased flight frequency from new airlines stepping up competition for existing airlines such as KQ, Jambojet, Fly540 and Britex Airlines. Freedom Airline Express started its maiden flights to Kisumu International Airport in mid 2018 and Safarilink Aviation Limited started operations to the airport at the end of 2018.
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.
Kenya will join Rwanda as the second African country to regulate the commercial use of drones once the Cabinet Secretary and the KCAA formulate the new UAS regulations (see Section IX). There are plans by Astral Aviation, a Kenyan-based logistics firm to set up a drone academy in Kenya to train drone pilots and Unmanned Aerial Vehicle operators and has already applied for a licence from KCAA. If approved, Kenya will be the second country in Africa (after South Africa) to have such a training facility. Astral Aviation had also proposed to open up a drone airport at Kapese airstrip in Lokichar in a move seen as a means to tap into the opportunities arising from oil exploration activities in the region. This facility will be the first of its kind in Africa and it was expected to be ready by February 2018. At the time of writing, no revised date has been given.
In addition, KQ has aborted its initial plan to buy Boeing 737 Max aircraft following the recent Ethiopian Airline crash and instead it will buy the larger 757 Dreamliner or acquire planes from Boeing's rival Airbus SE. The acquisition of the aircraft will enable the national flag carrier to achieve its expansion strategy.
1 Sonal Sejpal is a director and Fred Mogotu is an associate at Anjarwalla & Khanna LLP.
2 The Civil Aviation Act (Chapter 394, Laws of Kenya) was repealed in 2013.
3 Section 24(5) of the Statutory Instrument Act No. 23 of 2013, Laws of Kenya allows a penalty not exceeding 20,000 Kenyan shillings or such term of imprisonment not exceeding six months, or both, which the regulation-making authority may think fit for breach of a statutory instrument.
4 Regulation 20 of the Civil Aviation (Aircraft Accident and Incident Investigation) Regulations, 2018.
5 For this reason, it is 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, 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. 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.
6 Section 48 of the CAA.
7 Section 59 of the CAA.
8 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.
9 Section 65 of the CAA.
10 Section 11 of the CBAA.
11 Legal Notice No. 162 of 1993.
12 Section 91 of the CPA.
13 'International services' 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.
14 Regulation 4(2) of the Civil Aviation (Aircraft Nationality and Registration Marks) Regulations, 2018.
15 Regulation 5(1) of the Civil Aviation (Licensing of Aircraft Services) Regulations, 2018.
16 Regulation 5(1) of the Civil Aviation (Licensing of Aircraft Services) Regulations, 2018.
17 Regulation 4 (1) of the Civil Aviation (Aircraft Nationality and Registration Marks) Regulations, 2018.
18 Regulation 21(d) of the Civil Aviation (Licensing of Air Services) Regulations, 2018
19 Regulation 21(3) of the Civil Aviation (Licensing of Air Services) Regulations, 2018.
20 Regulation 13(1) and (2) of the Civil Aviation (Licensing of Air Services) Regulations, 2018.
21 The other requirements are provided in regulation 13 of the Civil Aviation (Licensing of Air Services) Regulations, 2018.
22 Regulation 18 of the Civil Aviation (Licensing of Air Services) Regulations, 2018.
23 Regulation 19(3) of the Civil Aviation (Licensing of Air Services) Regulations, 2018.
24 Part V of the Civil Aviation (Licensing of Air Services) Regulations, 2018.
25 Regulation 3(3) Civil Aviation (Aircraft Nationality and Registration Marks) Regulations, 2018.
26 Regulation 27 Civil Aviation (Operation of Aircraft for Commercial Air Transport) Regulations, 2018.
27 Regulation 4 Civil Aviation (Safety Management) Regulations, 2018.
28 Regulation 9 Civil Aviation (Safety Management) Regulations, 2018.
29 The Second Schedule of the Civil Aviation (Safety Management) Regulations, 2018.
30 Regulation 34 of the Civil Aviation (Operation of Aircraft for Commercial Air Transport) Regulations, 2018.
31 Regulation 3 of the Civil Aviation (Operation of Aircraft for Commercial Air Transport) Regulations, 2018.
32 Regulation 207 of the Civil Aviation (Operation of Aircraft for Commercial Air Transport) Regulations, 2018.
33 Regulation 87 of the Civil Aviation (Operation of Aircraft for Commercial Air Transport) Regulations, 2018.
34 Regulation 170 of the Civil Aviation (Operation of Aircraft for Commercial Air Transport) Regulations, 2018.
35 Regulation 206 of the Civil Aviation (Operation of Aircraft for Commercial Air Transport) Regulations, 2018.
36 Regulation 86 of the Civil Aviation (Operation of Aircraft for Commercial Air Transport) Regulations, 2018.
37 Regulation 8 of the Civil Aviation (Rules of the Air) Regulations, 2018.
38 Regulation 15(1) of the Civil Aviation (Operation of Aircraft for Commercial Air Transport) Regulations, 2018.
39 Section 20 of the Insurance Act (Chapter 487, Laws of Kenya).
40 Section 71(1) of the Competition Act.
41 Section 21(1) of the Competition Act.
42 See E.M.S v. Emirates Airlines  eKLR.
43 French Accident Investigation Bureau, Accident Report 5y-n000130 A310 CFIT after take-off, Abidjan, Ivory Coast, 30 January 2000 (2002).
44 Stephanie McCrummen, 'Passenger Jet Disappears Over Cameroon'  Washington Post Foreign Service.
45 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).
46 'Accident' means an occurrence associated with the operation of the aircraft that, in case of a manned aircraft, takes place between the time any person boards the aircraft with the intention of flight until such time as all such persons have disembarked, or in the case of an unmanned aircraft takes place between the time the aircraft is ready to move with purpose of flight until such time as it comes at the end of the flight and the primary propulsion system is shut down, 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, including parts that have become detached from the aircraft, or direct exposure to jet blast (except when the injuries are from a natural cause, self-inflicted or inflicted by other persons, or when the injuries are to stowaways hiding outside the areas normally available for the passengers and the crew); or the aircraft sustains damage or structural failure that adversely affect the structural strength, performance or flight characteristics of the aircraft; and that would require major repair or replacement of the affected component (except for engine failure or damage, when the damage is limited to a single engine (including its cowlings or accessories), to propellers, wing tips, antennas, probes, vanes, tires, brakes, wheels, failings, panels, landing gear doors, windscreen, the aircraft skin (such as small dents or puncture holes), or for minor damages to main rotor blades, tail rotor blades, landing gear, and those resulting from hail or bird strike (including holes in the radome) or the aircraft is missing or completely inaccessible). Regulation 2 Civil Aviation (Aircraft Accident and Incident Investigation) Regulations, 2018.
47 'Incident' means an occurrence, other than an accident associated with the operation of an aircraft which affects or could affect the safety of operation. Regulation 2 Civil Aviation (Aircraft Accident and Incident Investigation) Regulations, 2013.
48 Regulation 20 of the Civil Aviation (Aircraft Accident and Incident Investigation) Regulations, 2018.
49 Regulation 13 of the Civil Aviation (Safety Management) Regulations, 2018.
50 'Authority' in this instance means the KCAA. Regulation 2 Civil Aviation (Aircraft Accident and Incident Investigation) Regulations, 2018.
51 Regulation 81(1) Civil Aviation (Operation of Aircraft for Commercial Air Transport) Regulations, 2018.
52 Regulation 81(2) Civil Aviation (Operation of Aircraft for Commercial Air Transport) Regulations, 2018.
53 A relevant person means the pilot-in-command, operator or the owner of the aircraft at the time of the 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. Section 2 of the Civil Aviation Act No. 21 of 2013.
54 A chief investigator is a person appointed by the Cabinet Secretary to be responsible for aircraft accident and incident investigations.
55 Regulation 8(1) Civil Aviation (Aircraft Accident and Incident Investigation) Regulations, 2018.
56 Regulation 8(2) Civil Aviation (Aircraft Accident and Incident Investigation) Regulations, 2018.
57 Regulation 8(5) Civil Aviation (Aircraft Accident and Incident Investigation) Regulations, 2018.
58 An Investigator-In-Charge is a person charged, on the basis of his or her qualifications and experience, with the responsibility for the organisation, conduct and control of an investigation. Regulation 2 of the Civil Aviation (Aircraft Accident and Incident Investigation) Regulations, 2018.
59 Regulation 8(7) Civil Aviation (Aircraft Accident and Incident Investigation) Regulations, 2018.
60 Regulation 8(8) Civil Aviation (Aircraft Accident and Incident Investigation) Regulations, 2018.
61 Regulation 14(3) Civil Aviation (Aircraft Accident and Incident Investigation) Regulations, 2018.
62 Regulation 18 Civil Aviation (Aircraft Accident and Incident Investigation) Regulations, 2018.
63 Regulation 19 Civil Aviation (Aircraft Accident and Incident Investigation) Regulations, 2018.
64 Flymags ranks KQ as the fifth best airline in Africa and the third best in East Africa after Ethiopian Airlines and RwandAir and the African Exponent in 2018 ranked KQ the fifth best airline in Africa and the second best in East Africa after Ethiopian Airlines.