NAIROBI: Aviation industry regulator, Kenya Civil Aviation Authority (KCAA) has suffered yet another blow after the Appeal Court declined to temporarily halt a Sh1.4 billion award to an airline operator.
KCAA had moved to the second highest court in the land on grounds that it should be allowed to appeal the award to the African Commuter Services (ACS) for the loss of business.
However, a three judge bench composed of GBM Kariuki, Jamila Mohamed and Festus Azangalala ruled that the court would not halt the course of law as the basis relied on could not move the court to issue any temporary orders. Jusitces Kairiuki, Azangalala and Mohamed found that KCAA was betting on luck to avoid paying the hefty amount.
According to the KCAA, the sum involved is colossal and had to be paid from the public purse. “In our view the applicant is toying with the process or to put it in the words of learned Senior Counsel for the respondent (Ahmednassir Abdullahi), the applicant is playing a lottery.
It wants to have a third bite at the cherry,” the judges ruled. “It hopes that in the event certification is granted an opportunity will be opened to once again escape payment of the decretal amount which we accept is not a small sum. But the amount of the judgment per se cannot, in our view, be a basis for granting certification.”
The case before the Appeal Court was the second try by KCAA to halt the airline from demanding the huge amount awarded to it by the High Courtt after it found that the regulator was to blame for cancelling its operations’ certificate back in 2003. The initial plea before the High Court flopped and Justice Alfred Mabeya ordered that KCCA ought to follow the orders.
Unsatisfied with the order, the regulator moved to the Appeal Court with the aim to move to the highest court in the land for determination on whether the commuter was entitled to pay. The 11-year old dispute that led to the award emanated from the decision by KCCA to cancel ACS Ltd’s air operation certificate.
With this, the company had to close shop and seven airplanes it operated were grounded. The firm went to court on November 12, 2003 seeking to have the authority compelled to pay Sh1.3 billion for the losses that it had incurred due to the action.
The High Court ruled in favour of ACS and awarded it more than Sh1.3 billion. However, the authority moved to the Appeal Court which reduced the amount payable. The appellate court had reviewed the monies to slightly below Sh400 million.
