Midlands Gem Limited & Stephen Gitonga Mbaabu v Airspace Forwarders Limited & British Airways Worldcargo Limited [2016] KEHC 5910 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL   APPEAL NO.  922  OF 2003

MIDLANDS GEM LIMITED……………………………………….1ST APPELLANT

STEPHEN  GITONGA MBAABU…………….............................2ND APPELLANT

VERSUS

AIRSPACE FORWARDERS LIMITED.………………...……..1ST RESPONDENT

BRITISH AIRWAYS  WORLDCARGO LIMITED…....………2ND RESPONDENT

JUDGMENT

This appeal arises from the judgment and decree of the lower court vides Milimani CMCC EJ 131 of 1999 delivered on 25th November 2003 by Honourable T.W.C. Wamae, Senior Resident magistrate.

The appellants herein were the plaintiffs in the lower court whereas the respondents were   the defendants.  By  an amended  plaint dated  14th May  1999, the appellants Midland  Gems Ltd and Stephen Gitonga Mbaabu sued the respondents Airspace  Forwarders Limited  and British  Airways  World Cargo Limited for recovery of kshs  417,200, costs of the suit ,interest and any further  or better  relief  the court may deem fit to grant.  It  was alleged that on or about the 13th day of December 1997 the plaintiff/appellants  or their agent  delivered  3 packages of 225 kilograms of baggage consisting of assorted  carvings (consignment) to the  1st respondent  to be  air freighted from Nairobi to Los Angeles  to one Jane Wangari Kariuki on or before  17th December  1997  as the consignee  of the  said goods  was to depart  from Los Angeles  thereafter.

That the respondent agreed  to air freight  the said consignment and   undertook  through their agents  to ensure  delivery of the said  consignment  to Los Angeles  on or  before the  said 17th December  1997  at a consideration of USD 3. 20 per kilogram.  However, it  was alleged that due  to the negligence  on the part of  both the  respondents, their servants  and  or agents  jointly and severally  the goods  were not  delivered  within  the specified  time on or before  17th  December  1997  and that  upon such  failure  to deliver  the said goods/consignment  by the said  date  of 17th December  1997 as aforesaid,  the appellants  called  on the 1st respondent to air freight  back the said goods to the appellants in Nairobi as the consignee  was no longer available  in Los Angeles  to clear and  take delivery of the said goods.  It was further averred that the 1st respondent orally undertook to the appellants and or their agents to bring back the consignment   to Nairobi but they defaulted hence the suit.

The appellants specifically stated the particulars of the respondent’s negligence as:-

Failing to deliver the said goods   within the required time and or at all.

Allowing the said goods to be lost and or stolen.

Failing to provide adequate security for the said goods or at all.

Failing to re-ship the said goods to the plaintiff and /or at all.

The appellants therefore claimed for the value of the said consignment all totaling kshs 417,200.

Both respondents entered appearance and filed separate defenses denying the plaintiffs/appellants’ claim. The 1st respondent only admitted  the receiving  and delivery of the consignment  to the 2nd  respondent as per  the Airway Bill No. 125-79996803 but denied  the allegation by the  plaintiffs/appellants as to the consignment’s  departure  time and that neither did it  ensure  delivery of the consignment on or before17th December  1997. It also denied particulars of negligence attributed to it, and or that it was liable for the value of the consignment as quantified by the appellants.

The  1st respondent however admitted in paragraph 8 of the amended defence dated  21st June 1999 that  it received the appellant/plaintiffs instructions  to airfreight  back the consignment  to the  plaintiff   which it promptly  notified  the 2nd respondent  of  the appellant’s request within  reasonable time and contended  that if there  was  any delay then it  was caused by or contributed to by the 2nd  respondent. The 2nd respondent also relied on its trading conditions exempting it from liability. That it being a common carrier, it could not be held liable for loss, delay or damage to the goods to be forwarded.  The 1st respondent  also pleaded that the  conditions of contract  between it and the  appellants was subject  to the  Warsaw Convention of  12th October 1929 as amended  by the Hague  Protocol of 1955 and the limitations therein and prayed   for dismissal of the  appellant’s suit with costs.

The 2nd respondent  filed defence  dated 21st April  1999 denying  the appellant’s claim against  it and  more particularly, it denied  being  the agent of the 1st respondent receiving any consignment  for delivery to Los Angeles on 17th December 1997; being  negligent in failing to deliver the alleged goods; being  asked to return  the goods  to Nairobi or any other  undertaking. It also pleaded that there was no privity of contract between it and the appellants, capable of being breached.  It denied  any loss, delay or damage and relied  on Article  26 of the  Warsaw Convention applied to Kenya  by the Carriage  by Air Act, 1993  and contended  that in any event, any liability that it  bore if  any would be limited to USD 20 per kilo of the consignment but nonetheless prayed for  dismissal of the appellant’s  suit with  costs.

The case was heard inter parties and in her judgment   delivered on 25th November 2003 Honourable T.W.C. Wamae (Mrs) Senior Resident Magistrate dismissed the appellant’s suit with costs to the respondents.  It is that dismissal order that   is subject of this appeal. The appellants have set out in their Memorandum of Appeal dated 15th December 2003 filed on the same day six(6) grounds of appeal challenging the decision of the  trial magistrate  namely:-

That the Learned trial magistrate  erred  in law  and fact  in holding  that the 1st appellant  had no locus  standi  to sue in this matter.

The Learned  Magistrate  erred  in law  and fact in   failing  to establish  that the  2nd appellant  existed  in the name of Stephen Gitonga Mbaabu.

The Learned Magistrate  erred  in law  and fact in holding that  the  2nd appellant  had locus standi to  sue  in this matter.

The Learned  Magistrate erred  in law  and fact  in failing to  hold that the question of the  right to sue had been determined  by an  earlier  application  in favour of the  appellants.

The Learned  magistrate erred in law and  fact in writing  an eligible (sic) and unreadable proceedings and judgment  incapable of being typed  hence occasioning a miscarriage of  justice to the appellants.

The Learned Magistrate erred in law  and fact in writing  her judgment  without having  regard  to the court  exhibits  which were reported  missing  during the trial hence  occasioning  a mistrial and miscarriage  of justice.

The appellants prayed that the judgment be quashed and set aside and a new trial be ordered a fresh.

The appeal herein was admitted  to hearing on 31st July 2009 by Honourable Okwengu J (as she then was) who  also gave directions under  Section 79C of  the Civil Procedure  Act  on 20th November 2009. The parties’advocates agreed on 24th November 2010 before Honourable Maraga J to dispose of the appeal by way of written submissions.  On 24th February 2011 the  parties  advocates  made  skeletal  submissions  before Honourable  Joyce Khaminwa J ( as she then was ) while  relying  entirely on their written submissions and the  learned  Judge  reserved  her judgment for 14th June 2011, which  judgment was never delivered and  this court  is now called  upon  to consider  the appeal  on its  merits  and make its pronouncement  which I hereby do.

The appellant’s submissions dated 23rd November 2010 were filed on the same day. The 2nd respondent filed theirs on 9th December 2010.  They are dated 9th December 2010 together with authorities annexed thereto. The 1st respondent did not make any written submissions for purposes of this appeal. The  court will therefore  only  rely on their  oral submissions, the  record  and the submissions  made orally in court  on  24th February 2011 before Honourable  Joyce Khaminwa  (RIP) and  in writing  as filed by the  appellants  and the 2nd  respondent.

In the appellant’s submission dated 23rd November 2010, it is contended that there are fire issues for consideration.  The first issue raised is whether the appellants had a locus standi to sue for loss of goods.

According  to the appellants, it is them who delivered   the 225 kilograms  of consignment for shipment  to their client  in Los Angeles  upon the understanding  that their clients  could only receive  the goods on or before 17th December 1997. Further, that the goods  never  arrived in  Los Angeles  as agreed  and that  even then, the consignee had left  the United States of America after  17th December  1997  hence it was  the appellants who suffered  loss as a result of the non delivery  of the consignment  hence they were the  proper  parties  to sue.

The appellants  also urged the court to note  that they had  not sued  on the basis of  the Airway Bill Ex 12 but for  negligence  for the defendants/respondents’ failure to deliver the consignment  to its intended  destination  as at December  17th 1997.  According  to the  appellants, the consignees  could not  sue for  non delivery of the consignment  since they were not  parties to the agreement  between the defendants/respondents   on  the shipment  of the consignment to Los  Angeles.

The appellants faulted the trial magistrate for finding that it was the consignee who should have sued instead of the plaintiffs/appellants who dealt directly with the defendants.

On the  second  issue of whether  or not there was a contract  between the plaintiffs/appellants and the defendants/respondents  to air freight  the consignment  to Los Angeles  by a specific date, the  appellants  submitted that the evidence  on record  revealed that there  was  an understanding  between the parties  that the consignment  ought to  have  been delivered  to the consignee by  the 17th December 1997 after it  was  delivered to the 1st defendant/respondent  on 13th December  1997 for onward  delivery to the USA  to reach  the customer  by 17th December 1997.

Further, that DW1 admitted receiving the goods on 13th December 1997 from PW2 and that the consignee had indicated that she would not be in Los Angeles after 17th December 1997.  That the same witness  DW1 testified that  they delivered  goods  to the 2nd respondent for  air freighting  to Los Angeles  and notified them of  the necessity to have the goods   delivered by 17th December 1997  to ensure that  the goods  reached the USA by  that date.

The appellant  further submitted that  according to the 2nd respondent’s  witness evidence at page  98 of the  record of  appeal,  the  Airway Bill  was issued on 13th February 1997 and that  he confirmed  that naturally  the goods  should have  reached  the  intended  destination  within 48 hours from 13th December  1997. That he admitted the delay  which was not  caused by  the 2nd  respondent  as it was caused by operational constrains which made  them  put the consignment  in a different  flight  other than the one confirmed. The appellant  urged this court to find that  there was a common  understanding between the parties  that the  goods were to be delivered  to the intended  destination on or before  the 17th December 1997.

On the third  issue of  whether  the goods reached the destination on the agreed dates  and if not  who was  to blame, the appellants  submitted that  the evidence  on record was  clear that  the goods  did not  reach the intended  destination  in time albeit  there  was  no conclusive  evidence  on the exact  date that  the goods  reached the  intended  destination but nonetheless  they  did not  reach on17th December 1997 as agreed  but on 18th December 1997 or 1st  January  1998 and that  the 2nd respondent having admitted  the delay in delivery of the  consignment, they were to blame.

On the fourth issue of whether the appellants suffered loss for  non delivery of goods to the  intended  destination, it  was submitted that  it was not in dispute that the  goods  never reached  the consignee within  the stipulated time hence  the consignee who had left Los Angeles  could not  pick  them and therefore the appellants asked the respondents  to air freight  it back  but the defendants  did not,  on account  that the charges  had not  been  paid, which  excuse  is not  plausible  considering  that the  appellants  did not  even pay freight  changes to Los Angeles since the consignee would be  the one paying the charges  on collecting the goods according to DW2. It was  therefore  submitted that in view  of the testimony of a common practice that  freight  charges are normally paid by the consignee collecting  goods, and  since  the goods  never arrived  at the intended  destination within the  stipulated  time, the 2nd respondents  should have  air freighted  the goods  back and  charged  the appellants. That it  was failure by the 2nd respondents to return the goods  that the goods  were seized   by the US Customs  Department and destroyed   while in custody  of the 2nd respondent  which destruction caused the appellant loss  and they should therefore  be compensated.

The fifth issue is whether the appellants are entitled to compensation. The appellants submitted that Article 26 of the Warsaw Convention which applied  to Kenya by virtue of  the  Carriage  by Air Act  1993 limited  the liability of the carrier   in whose hands    goods are lost, and or  destroyed  to USC 20 per kilogram of the consignment  unless a higher value is declared by  the shipper and a supplemental  charge  is paid.  The appellants  submitted  that they  never claimed  for a higher  value hence the trial magistrate  should  have awarded  them kshs 315,000. The appellants  urged  this court  to set aside  the judgment dated 25th November  2013  and substitute  it with an order  entering judgment for the appellants for kshs  315,000/- plus interest  at court  rates, costs and refund  of costs  paid  to the respondents with interest  at court  rates.The appellants did not rely on any case law in their submissions.

In the 1st  respondent’s submissions made by Mr Odhiambo advocate before Honourable Joyce Khaminwa  on  24th February 2011, it was  submitted that  the appellants  were not  privy to the contract  of consignment.  That they did not consign the goods to the destination hence they had no locus standi and therefore there is no cause of action against the 1st respondent.  That  since the  contract  was governed by  the signed  Airway Bill as  between the parties, the appellant  could not  stretch into a contract   entered into for services which is different.  Mr Odhiambo urged the court to find that the Warsaw Convention was applicable and particularly the fact that the time limit within which the cause of action was to accrue had passed.  He urged the court to uphold the trial court’s decision and dismiss the appeal.

In the 2nd respondent’s submissions termed  skeletal yet  very detailed  submissions filed on 9th December 2010,the 2nd respondents through the firm of Hamilton, Harrison and Mathews submitted that albeit  there  were 6  grounds of appeal, two issues  were disclosed. The first issue covered grounds 1-4 of the Memorandum of Appeal and related to the error of law and facts   regarding the Locus standi of the appellants.

The second issue covered grounds 5-6 of the Memorandum of Appeal and relates to the error of law and fact in the process of writing of the judgment.

On the first issue   as framed, the 2nd respondents  maintained that the suit   was predicated on the Airway Bill and that  the appellants  had no locus  standi to sue since  they were  neither the senders/consignors  nor the  consignees according to that  Airway Bill which formed  the  contract as governed  by the carriage  by Air  Act hence, the appellants not being privy to the contract  could not  sue or  seek to benefit  from it and therefore  their claim  did not  lie.

It was also submitted that  the  contract as per the Airway Bill  was between the 2nd respondents  and the consignee Mungai Jane Kariuki and not  the present appellants who were not parties to the Airway Bill and therefore  no rights or obligations accrued to them. Further, that even if the claim was predicated on negligence, the appellants had failed to prove that the 2nd respondents owed them a duty of care and or that that duty of care duty was breached.

According to the 2nd respondent, it only dealt   with the 1st respondent and not the appellants. They relied on Agricultural Finance Corporation V Lengetia Ltd (1985) KLR 765 where the  court held that   a third party has no locus standi to sue  on a contract and on the basis  of the decision  in Kenindia  Assurance  Company Ltd  V Otiende [1991] KLR 38 it was submitted  that where a party purports to enforce a contract  by way of  a suit, as the appellants  herein did, the  court is divested of jurisdiction to deal with the matter. The 2nd respondents  therefore fully supported the trial magistrate’s finding that there was no contract between the appellants and the 2nd  respondent  which could  entitle the appellants  to recover damages as sought.  The 2nd respondents also submitted that the appellants had no cause of action because:-

Condition12. 1.3 of the Airway Bill stipulated  that in case of delay in delivery of baggage, the consignee would make a written  complaint  to the 2nd respondent  within  21 days  from the date  the goods are  placed at  her disposal, which condition was similar  to Article  26(2)  of the Warsaw Convention  as applied by the  Carriage  by Air Act, 1993. Reliance   was placed on Edher Ahmed  V The General, East  African Railways  and Harbours   Administration where  the court held  in relation to Section  92 of the defunct East African Railways  and Harbours Act, which  is similar to  Article 26(2)  of the Carriage  by Air Act that   where a party had failed  to comply  with the mandatory complaint  procedures, the party  would  not be entitled  to compensation even  if he had a  cause of  action.

Further, that under Article 14 of the Warsaw Convention, only the consignor or consignee could/can sue for compensation for any loss.  In this case, it was submitted that neither the sender nor the consignee were enjoined to the suit and that the consignor was named in the Airway Bill as 1st respondent.  It was  submitted  that since none of  the appellants  for the description  of the consignor or consignee, their cause of action was  patently  misconceived  and therefore  they are not  entitled to any compensation even if  the 1st respondents were their  agents  because they remained third parties.

On the issue  that the  appellant’s  action  was time barred, the 2nd respondent  submitted, referring to the affidavit  sworn on               10th October  2000 by  the consignee wherein  she alleges that she asked the 2nd respondent to take the  baggage back to Nairobi.  It was   contended that the consignee did not supply any evidence of such communication. That she neither went to collect the baggage  nor communicated with the 2nd  respondent  on what  to do with  the said baggage. As a result thereof, and the failure to pay custom clearance charges, the Government of the USA destroyed the baggage. Further, it was submitted that  even if  freight  charges would have  been paid, the 2nd  respondent would not  have been able to carry back the luggage as it had been confiscated  and destroyed  by the USA Government . It was further contended that   the consignee was obliged  to lodge  a complaint  to the 2nd respondent  within 21 days from the date  when the baggage  was placed  at her disposal as clearly indicated  as a condition in the Airway Bill and a statutory requirement under Article 26 of the Warsaw Convention as applied by the carriage by Air Act, 1993  which provides that:

……….

In the case of damage, the person entitled   to delivery must complain to the carrier forthwith after the discovery of the damage and at the latest, within 7 days from the date of receipt in the case of cargo.  In the case  of delay the complaint  must be made  at the  latest  within 21 days  from the date  on which the  baggage or cargo have been  placed at his disposal.

Every complaint  must be made  in writing  upon the document of carriage  or by separate notice  in writing   dispatched  within the  times aforestated

Failing complaint   within the times aforesaid, no action shall lie against the carrier, save in the case of fraud on his part.

In the instant  case, it  was submitted  by the  2nd respondent that neither  the consignee nor the  consignor lodged  any complaint  to the 2nd respondents  within  21 days as required  by law  and as  set out in the Airway Bill hence, the case of  Edher Ahmed V The GM,EAR & H Administration (supra) applied.

The next issue raised by the  2nd respondent for determination by  this court is  whether  there  was  an agreement between the parties  to air  freight  the consignment  to Los Angeles by a specific  date. The  2nd respondent  submitted that albeit  the appellant claimed  that there  was a contract  to deliver the consignment to Los Angeles  by 17th  December  1997 as the consignee was scheduled  to leave  the city, clause 8. 1 of the Airway Bill was clear  that the 2nd respondent  undertook to complete  the carriage  with reasonable  dispatch.

Further, that it   was well known to  the parties  to the contract that  the  carrier could not  possibly guarantee a specific delivery timeline, due to the unpredictable  nature of travel  including  inclement  weather, re-routed  and  delayed  flights. In addition, that in any event, the 2nd respondent had no interaction with the appellants and could therefore not have given that undertaking.

The 2nd respondent also recalled that  PW1’s evidence  was clear  that  there  was no contract  between the appellants  and the  2nd respondent but  that there   was a verbal contract, and that the  witness admitted that there  was  an  Airway bill which stipulated  the conditions  of carriage, and that he also admitted that there was  no written  condition  that the baggage  would be  delivered to the  consignee before 17th December 1997.

The 2nd respondents further submitted that the appellants  were not  entitled to  introduce  new terms  to the written  contract  through alleged  verbal undertakings. They  relied on Kinyanjui and Another V Thande & Another [1995-98] EA 159 where the  Court  of Appeal held that  an agreement which is by law required to be in writing cannot be amended or varied  by oral representations. The same  position was  taken in Matiri & sons V Nithi Timber Co-operative Society Ltd [1987] LLR 1512 and Deposit  protection  Fund Board  V Sunbeam Supermarket Ltd  & 2 Others [2004] I KLR  37  here  the court held  that Section  98  of the Evidence Act  is clear that  parole evidence  shall not  be admitted to vary the  terms of a document  which  is required to be in writing.

The 2nd  respondent further submitted that Article 10 of  the Warsaw Convention places  the obligation of ensuring  accuracy of the Airway bill on the consignor ( the 1st  respondent) and in that regard the Article  provides that:-

The consignor is responsible for the correctness of the particulars and statements relating to the cargo which he inserts in the Airway bill.

The consignor shall indemnify  the carrier  against  all damage  suffered  by him, or any other  person  to whom the carrier  is liable, by reason of the irregularity incorrectness or incompleteness of the particulars  and statements  furnished  by the consignee.

According  to the 2nd respondent, it was  the duty of the consignor  to ensure that  the information on when the  baggage  was  to arrive  at its destination  with the  consignee was included  as a condition  on the Airway bill and that such  failure  to include time of  delivery in the airway bill would  be attributed  to the  1st respondent  who is under  statutory duty to  indemnify the 2nd respondent  in the event  that the appeal herein is allowed, adding  that Article  15 of the  convention  was clear  that the  conditions of carriage  by air as set  out in Article  12,13,14 can only be  varied by express provisions  in the Airway  bill,  which provision, it  was contended,  settled the debate  on whether  the terms  of  the Airway  bill and  the conditions of  carriage  could be  varied or added  to by verbal agreement.

Further, that  therefore since there  was  no agreed  date when  the goods  would reach their destination, the issue of whether  they reached  on the agreed  date does not  arise since  the 1st respondent  had no control over  or of  the flights   of the 2nd respondent hence it could not  give any  undertaking on behalf of the 2nd  respondent.

On nonpayment of freight charges, the 2nd respondent argued that the appellants could not be heard to seek for return of the goods as they had not paid the freight charges.

On the ground  that the trial  magistrate wrote  ineligible  notes incapable of  being typed hence  causing  miscarriage of justice, the 2nd respondent submitted that no submissions were made  in that regard  hence the  ground  should be  assumed  to have been  abandoned.  Furthermore, that the appellants had not shown which parts of the proceedings were missing or ineligible.

On the allegations that the trial  court  failed  to refer to exhibits reported  to have been missing, it was submitted that the  claim  was misplaced  as all  exhibits  produced in the lower  court had been produced  in the  record of appeal and the  supplementary record of appeal.

The 2nd respondent therefore submitted that  it was not liable  for the delay/loss of  the goods and that even if the  court was to find them liable, the liability would only be  limited to the extent set in the Warsaw Convention  as applied by the carriage  by Air Act. They relied on the case of Western Digital Corporation & Others  V British Airways PLC [2000] 2 LLR 142 page 35 where  it was held that the Warsaw Convention  was a complete code in relation to matters falling under it, and the issue  of liability of the carrier  was one  such matters. Further, that the court held that in carriage by air, any action  for damages, however founded, whether  in contract  or in tort, can only be brought  subject to the conditions and limits of liability set out  in the Warsaw Convention.The 2nd respondents therefore submitted that this appeal was without merit and urged the court to dismiss it with costs.

Analysis and determination

I have carefully considered the appeal herein as prosecuted by the appellant in proposition and the serious and vehement opposition   thereto, by way of detailed written submissions by all the parties’advocates. I have also considered the authorities relied on by the parties’ advocates where applicable.

As is required  by Section 78 of  the Civil Procedure  Act, this being a first appeal, this court  is under a duty to reconsider, re-evaluate and reexamine the evidence  and the law and exercise as nearly as possible  the powers and  duties  of the trial  court  and come  to its own independent  conclusion, bearing in mind it neither saw nor  heard the witnesses as  they testified  in the subordinate  court and therefore  give an  allowance to that. This principle was interpreted by the Court of Appeal in the case of SielleV Associated Motor Boat Company Ltd [1968] EA 123. In addition  this court  as an appellate court will only  interfere with the trial court’s findings  if they  are predicated  on wrong  principles of fact  and or law as fortified by the court of Appeal in the case of Mkube V Nyamuro [1983] KLR 403 where the Court of Appeal stated  that;

“ A Court  of Appeal will not normally interfere with the finding of fact  by a trial court unless it is based  on no evidence, or on a misapprehension  of the evidence or the judge is shown to have demonstrably to have acted  on wrong  principles in reaching his conclusions.”

The Court of  Appeal  in the above Mkube case further held  that the  appellate  court, nonetheless is not  bound by  the trial court’s  finding of fact if it appears that  either  it failed  to take into account particular  circumstances  or probabilities  or if the impression of a witness is  inconsistent with the evidence  generally.  (See also MbogoV Shah & Another (1968) EA 93.

Applying  the above established  principles  of law to this appeal, I proceed  to re-evaluate  the evidence as  adduced in the  subordinate  court before settling  on the main issues for  determination.

PW1 Stephen Gitonga Mbaabu the 2nd appellant herein testified that he was the 1st appellant’s Managing Director.  He was also an advocate of the High Court of Kenya. That  sometime  in 1997  his company  the 1st Appellant received  an order from Miss Njeri Kariuki and another trading  as the Village   from California, USA  who wanted an assortment of arts  and craft  which the 1st appellant company  was trading  and dealing in.  The goods were to be purchased and delivered to the individuals placing the order on or before 17th December 1997.  That the order was subject to that condition as the goods were required then for exhibition to be held in California on 18th December 1997 and he promised to see that the goods were delivered on time.  PW1 then called his agent Artmarc Curios through Mercy Kihara  and requested  her to organize  for the purchase  of the items and to ensure that they were delivered  to the clearing and forwarding agents   who were  the 1st defendants (1st respondents herein).  He also instructed Artmarc Curios to ensure they only ship the goods on condition they would be delivered in time as required.  The goods were valued at kshs 417,200 and he paid for them as the agents said they had no money to pay for the order and it was confirmed that the goods were delivered to the 1st defendant  (1st respondent herein).  The 2nd appellant  then contacted a Mr Gitonga  of the 2nd respondent  Airline  who assured  the 2nd appellant  that the goods  would be  delivered  to their destination on or before the date mentioned.  PW1 then received a phone call from the consignee that the goods were never delivered to their destination on time, and that she went to the airport 100 miles away and was told the goods   had not arrived. Further, that the consignor explained why the goods did not arrive on time. He  produced  P exhibit 1 a letter  dated 5th January 1998 addressed to the1st respondent  urging them to  instruct  the 2nd respondent  to return the goods to the  plaintiffs as the consignee had  said she  would not  accept  the  goods due to the delay.  PW1 also wrote another letter requesting that the goods be returned to Nairobi since   the consignee did not want the goods.  He received a letter dated 16th February 1998 addressed to the 2nd respondent by the1st respondent copied to the appellants. The 1st respondent then  asked the 2nd appellant for an itemized claim to pass to the 2nd respondent for payment after it  became clear that the goods were  neither returned  nor delivered  to the consignee, while apologizing  for the mistake. The 2nd respondent however made it clear that it could not offer compensation on delayed goods.

PW1  maintained that the 1st respondent was to obtain a commitment  from the airline that  goods were to leave  immediately and to reach the  destination on time and that a Mr Gitonga  of the 2nd respondent  airline confirmed that  the goods would be delivered  on or before 18th December 1997.  PW1 further  stated that  the contract  with the 1st respondent was verbal on telephone and  that goods  were  to arrive before 17th December 1997 as verbally communicated  to the 1st respondent.  He admitted  that there was no value declared in respect of the goods and that he was to pay freight charges not at the destination.  He also confirmed that he knew carriage of goods is subject to certain terms and conditions and that Jane Kariuki and George Mungai were the consignees. In re-examination PW1 stated that the consignees were never interested in the goods which were never delivered.

The plaintiffs/appellants also called PW1 Mercy Mukwa Mugo Kibara who testified that she traded as Artmerk. She is the one who sold the goods/curios to the plaintiffs/appellants for delivery to the USA to reach their customer by 17th December 1997 and she charged shs 471,200 which they paid. Airspace packaged them. There was a verbal contractual condition that the goods were to reach the destination by 18th December 1997. She was issued with an Airway Bill and she notified PW1 that she had delivered the goods and that they would arrive safely. She received an invoice from Airspace forwarders and she sent it to Mr Mbaabu (PW1).  Later she received information that the goods were never delivered. She confirmed in cross examination that no delivery date was included in the Airway bill because of the trust as they had previously dealt with Airspace.

The  1st defendant/respondent  called  one witness DW1 James  Chege  Maina, its employee- Operations Manager who confirmed that they dealt with the plaintiffs through Mr Mbaabu  on 13th December 1997.  They received goods for delivery to United States which they packed in 3 packages and prepared an Airway Bill for taxation and customs entry. The value for the  declared  goods was  shs 26,070 as per the export entry and they delivered  the goods to the appellant herein informing  them that they had  to be in Los Angeles by 17th December1997 and the airline promised  to ensure delivery by that date.That the goods reached the destination on 18th December 1997. Another piece arrived on 21st December 1997. The consignee had indicated she would not be in Los Angeles after 17th December 1997 and later they were informed that the goods were destroyed by customs in the United States of America.

That they  wrote to the appellants on 16th February 1998 telling them the shipments did not  leave London on time and  the airline responded to say they were sorry but could not pay compensation for the delay and DW1 informed their clients.In cross examination DW1 stated that they indicated they were liable to pay and that they advised their client to avail an itemized claim. He confirmed that the conditions of carriage were in the Airway bill. He also confirmed that the delivery date was never made a condition and neither did the appellant give the undertaking in writing. He confirmed  that  no claim was  made within 21 days  by him as  the shipper  and that there  was  a large difference  of price  in the invoice  and the  declaration  i.e. 417,200 and  26,070. He admitted that the claim was time barred according to the clause in the Warsaw Convention. He confirmed that the Customs Department of airports destroys goods due to storage and security.

The 2nd respondent herein who was the 2nd defendant called one witness DW1Michael Muriithi Nyamu its Customer Service Executive.  He testified that the Airway bill only bound the defendants. That the plaintiff was a stranger to the Airway bill and that the conditions are clearly indicated on the reverse. That they contracted the consignees who never picked the goods in Los Angeles.  Notice  of seizure  was  sent to the consignee 15 days  later but  there was  no response  from them hence  the United States  Customs seized and destroyed  the goods. He denied that they received any claim within 21 days as required under clause 12 of the Warsaw Convention.  That although  the 1st defendant/respondent claimed but goods could not be reshipped from Los Angeles  to Nairobi since they were not paid freight charges by the consignee.He stated that they had no contract with the plaintiffs/appellants and that it was never shown on the Airway bill the date when the goods were to reach the destination. In cross examination, the 2nd respondent’s witness  stated  that goods  were delivered  on 1st January 1998 in Los Angeles and that due to technical  reasons  such as delayed aircraft  the airline may be unable  to meet date lines.  Further, that if the consignee is not happy with the delivery, they can complain to them within120 days. That he was not aware of the complaint by the consignees. In re-examination the witness stated  that the airway  bill was made on 13th December 1997 and that  there was  no instruction as to when the  goods could have  reached their  destination  although naturally they could  have reached within 48 hours. He admitted that there was delay on their part which they apologized. He started that the United States Customs confiscated the goods of which they had no control.

DW2 Fred Mwangi Gitonga, the 2nd respondent’s commercial Manager for East Africa testified that it is the Airway bill that forms the contract between parties.  He denied that the airline gave any assurance that the goods could be received by 17th December 1997 although they confirmed that space for transportation of the cargo had been secured for shipping of the goods. However, that due to operations constrains the goods were put in another flight other than the one confirmed. That they did not guarantee that goods would be received on a certain date. He stated that charges/freight charges would be paid by consignees who have never complained that goods were never received.

In cross  examination DW2 stated that  they could not assure customers of  the  date of arrival of goods and  in this case, that although they were  informed that goods be received at  a particular date, they were unable  to deliver  due to operational constrains and that  the agents  were aware  that goods  would not  be delivered  as agreed .  That though time was of essence to the contract, the reverse side of the Airway bill deals with conditions of the contracts. In re-examination he stated that aircrafts could be delayed and goods may not be connected to a flight it was expected.

In her  judgment, the trial magistrate  found that  the 1st defendant was an agent of the plaintiffs for purposes of forwarding  the consignment to the  2nd defendant  and that  the evidence  showed that the 1st  defendant did what  was required of it  hence  no blame  could  be assigned  to it.

The trial  magistrate  also found  that there was no written  agreement  between the defendants or between the plaintiff/appellant  and 2nd defendant  that  the consignment  would be  delivered by 17th December 1997. She also found that the charges for freight were not paid and that no negligence was proved. Further, that the  Airway bill  P exhibit  12 which  formed  the basis of the contract  was a contract  between the consignees and the defendants/respondents and that the fact that 1st respondent were the   appellant’s  agents  did not  make appellants parties  to that  agreement  hence the  appellants  could not  enforce  a  contract  to which they were  not parties .

The trial court also found that  there was no complaint  for non delivery of goods  within 21 days that failure by the consignees to make and complaints  to the  2nd defendant  as provided for under Article  26 of the Carriage  by Air Act, the action did not  lie.  Further  that in any event, assuming the  plaintiffs/appellants were entitled to delivery of goods their first  written  complaint  to the 2nd defendant/respondent on 10th March 1998  was about 3 months  from the date of the of the Airway  bill hence  their action  would still be time barred.  She also  found that even if the appellants were the  right plaintiffs  their claim  was limited  to USD 20 per kilograms  of goods in accordance  with clause 4 of the  Airway Bill conditions; and that as the consignment weighed 225 kilograms , taking  the value of the dollar  to be shs 78  the amount due  would be shs 351,000 not shs 417,600 as claimed.  Nonetheless, on the basis that the plaintiffs/appellants had no locus standi in the matter, she dismissed their suit   with costs to the respondents herein.

From the above revaluation and reexamination of the evidence both oral and documentary, submissions and authorities relied on by the parties respective advocates, the issues for determination in this appeal are:-

Whether  the appellants  were the  rightful parties to claim for the delay/ loss of the consigned  goods, and  therefore whether  there was  privity  of contract  between the appellants  and the carrier  of the goods .

Whether the carrier   was in breach of any terms and conditions of carriage by failing to deliver the goods on or before 17th December 1997.

Whether the appellant was entitled to compensation for the delay and eventual loss of the consignment and if so, what was the limit of compensation?

Whether the claim for delay, loss or damage was statute barred.

What orders should this court make?

Who should bear costs?

On the 1st issue  of whether or not the appellants had  locus standi in this matter and  therefore whether  there was privity of contract  between them and  the 2nd respondent carrier capable of enforcement.

The appellants strongly submitted that they are the ones who delivered the goods weighing 225 kilograms for shipment through the 1st respondent packers. On the other hand, the 2nd respondent seriously resisted  that submission and contention and maintained  that there  was no privity of contract between them and the appellants  hence the appellants  had no locus standi to sue them and that only the consignor or consignees  could sue  on that contract.  They relied on several authorities in support thereof whereas the appellants submitted generally.

The  answer  to that  question  lies in the  provisions of Carriage  by Air  Act No. 2 of  1993 which imports  the Warsaw Convention as amended by the Hague Protocol  of  1995  and which is  part of the  Laws of Kenya  by dint of Article  2(6) of the Constitution of Kenya 2010 which enact  that any treaty  or convention ratified by Kenya  shall  form part of the Law of Kenya under the Constitution.

Article 14 of the Warsaw Convention as amended  by 1995 Hague Protocol is clear that both the  consignor and consignee of goods  can sue, in recognition of the fact that a consignor  may simply  be an agent  of the consignee and therefore  the latter cannot  lose  their right  of entitlement  where the  former  has no claim or interest in  the consigned  goods. The Article states:

“ The consignor  and the consignee  can respectively enforce  all the rights  given them by Article 12 and 13  each in his own name, whether  he is  acting in his own name, whether he is acting  in his own interest or in the interest of  another, provided that  he carries  out the  obligations imposed  by the contract.”

Stroud’s Judicial Dictionary, 4th Edition has a quotation from the case of MasonV Lick Barrow 1 B1. H. 359 in which Lough Borough C.J. Stated:

“A bill of lading is the written evidence of a contract for the carriage   and delivery of goods, sent by sea for certain freight.  The contract, in legal language, is a contract of bailment. In the usual form of   the contract, the undertaking is to deliver to the order, or assigns, of the shipper.  The endorsement of the bill of lading is simply a direction of the delivery if the goods.”

The above quotation citing a bill of lading can be likened to an Airway Bill which is a legally binding contract between a consignor and   the carrier and for which the consignee has a right to sue the carrier for enforcement.

The Airway bill dated 13th December 1997 was clear as to who the consignor and consignees were.  P exhibit 12 is the Airway bill No. 125-7999 6803.  The consignees /shippers are Airspace Forwarders Ltd P.O. Box 19101 Nairobi Kenya A/C Mbaabu.  The consignees are George Mungai/Jane Kariuki, 2657 Normandale Apartments 2K California, and USA.

In Western  Digital Corporation and  Others  V British Airways PLC [1999] LLR Vol 2 Q.B(Com. ct) David  Steel J held  inter alia:-

“……….(4)  so far as  damages  to cargo  was concerned , any action for  damages must  by virtue  of Article  24(1)  be subject  to the conditions of the Convention  including by reference from Article 24(2) the identity of the person having  the right to bring  proceedings. These persons were prescribed by Article30(3) namely the consignor or the consignee who was entitled to delivery. The latter being the person required to make timeous complaint pursuant to Article 26.

(6) The owner of consignment who was not the consignor or the consignee named in the Airway bill (or a person to whom the consignor was ordered the delivery to be affected) was not able to make a claim against the carrier under Article 18.

(7) Article  30(3) referred  to the consignee who is entitled to delivery; thus the right of action accrued to the person  to whom delivery was ordered  to be effected under Article 12 that being the same person entitled to delivery under Article 26 and thus required to give notice of complaint

(8) The mere fact that the plaintiff was an undisclosed principal of the consignee did not accord title to sue.The important criteria was that  the carrier must know the identity of the person or organization with which it was dealing  not least  for the purposes of effecting delivery; the Convention focused on the consignor being the person making out the Air way bill and signing it as consignor, and on the consignee being  the person named in the Airway  bill, only if the consignor nominated a new person to whom delivery  was to be  made was someone other than the consignee named in the  Airway bill entitled  to bring to delivery and thereby to bring suit.

(9) As a matter of analysis,authority and practicality the Convention did  confine  cargo loss  and damage claims to proceedings  instituted  by the consignor  or the  consignee entitled  to delivery.”(Emphasis added).

The Learned Judge further at page 385 stated that:

“ Nor  am I able to accede to the  plaintiff’s submissions that the Convention, while expressly dealing with  rights of action by consignors and consignees is nonetheless leaving  open  all rights  of suit  by others, with, say, a proprietary interest, but who are not consignors  or consignees.”(Emphasis added).

From the above persuasive  and very relevant authority, it is clear that no  court of law  can rewrite  a contract for  parties and imply parties that were never privy to the contract by carriage.The1st respondent was the consignor and therefore only it or the  consignees  could bring action  for any delay, loss or damage  to the consigned  goods.

In Raoul Colinvaux’s Carver’s Carriage by Sea, VOL 2 (London: Stevens 1971) Page 46-47 paragraph 56, 57,it is persuasively stated as follows:

“ When goods are  delivered to a carrier  without any specific contract  being made, the right to sue for breach of duty on the carrier’s part  appears  to be in the person to whom  the goods at the time  of  the bailment, or who is to bear  the risk  of the transit.  If the actual sender if acting on the owner’s instructions, the latter is regarded  as the contracting  party, and he  becomes  entitled  to  sue for  the goods, and is  liable to pay the freight, and  otherwise  to  perform the implied contract.  But when a special contract  it made with the  carrier, its terms must be looked at, and If it  appears that  the shipper was himself the contracting party, he is the person able to sue, and liable  upon the  contract, although  he may have been acting for the benefit  of another, and may have  no interest  in the goods.”

In the instant case, the goods were delivered/consigned by the 1st respondent to the 2nd respondent. The 1st respondent is listed in the Airway Bill as the consignor/shipper. The Airway Bill is the legally binding contract between the two defendants. The Consignee is by law entitled to sue on that contract. The appellants  herein, though interested in the goods, were not parties to that  contract  which is governed  by a specific  legal regime, the Carriage  by Air Act of 1993 importing the Warsaw Convention as amended by the Hague Protocol, 1995.  That contract, being a voluntary legal burden  created by parties for themselves, the court’s role is only, upon being  moved  by a party to see to the play of the  governing rules and  in this case, the governing rules are the Warsaw Convention and the Carriage by Air Act.

From the foregoing, therefore, it follows  that the rightful parties to claim on that Airway Bill which is a binding contract is the consignor  1st respondent and or the consignees  and no other . To find otherwise would be to re-write the aw relating to contract a between the parties thereto by introducing strangers.  What theappellants have heavily submitted on is general common knowledge which, regrettably, is not supported by law and therefore inapplicable in the circumstances of this case. As by law established, it matters not that the appellantshad proprietary interest in the consigned goods.They had an opportunity to instruct the 1st respondent  who prepared  the Airway  Bill  to indicate  who the consignor was, and  the consignor  is clearly indicated  as the  1st respondent. That being the case, and in the absence of anyamendment  to the Airway Bill, the appellants  herein remain  strangers  to that  contract  of carriage with the 2nd respondent. I hasten to add that it clearly appears that the 2nd appellant who is an advocate  of the High Court of Kenya and Director of the 1st appellant  did not read the Carriage  by Air Act and or the Warsaw Convention regarding such contracts  before instituting such suit.

The law is clear that necessary parties before the court are the ones that confer jurisdiction to the courts to determine a dispute and when proper parties are not before the court, the court lacks jurisdiction to hear and determine a dispute.  See Football Kenya Federation V Kenya Premier LeagueLtd HCC 69/2015 e KLR.  Proper parties before a court of law are those to whom rights and obligations accrue as may be decided by the court. The above rule of law, though breeding hardships and inconveniences remain unmitigated.  It has been so uniformly pronounced that despite its logical imperfection and actual inconvenience.  This court is not about to disturb it with a view to upsetting the status quo as it has not been moved to do so, with sufficient material, in light of its universal application by the courts globally.  In other  words, there  must be a  suable  party before a court, as it is that  suable  party who is essential  to the jurisdiction  whether  by compulsory or by voluntary submission ( See Baskins V United MineWorkers [1921] 150 ARK,398,406,234 S.W. 464,461 quoted in 33 Yale  Law Journal 383[1924].

It is  for the above reasons  that I agree with the trial magistrate that the appellants herein had no locus standi in the suit and that  there  was no privity of contract  between them and the 2nd respondents.

On the second  issue of whether  the carrier  was in breach of any terms  and conditions of carriage  by failing  to deliver  the goods  on or before  17th December 1997, the appellant  vigorously  and  with some support from the 1st  respondent  submitted that there was an  oral contract between the parties  that goods   were to be delivered  by 17th December 1997  since the consignee  was to leave/depart from Los Angeles by that date. However, there was no endorsement on the Airway Bill that the goods had to reach Los Angeles by 17th December 1997. Article 11 of the Warsaw Convention provides that:

“1. the Airway Bill or the receipt of the cargo is prima facie evidence of the conclusion of the contract, of the acceptance of the cargo and of the conditions of carriage mentioned therein”.

Under Article 8 of the Warsaw Convention:“The airway bill and the receipt for the cargo shall contain:

An indication of the places of departure and destination.

If the places of departure  and destination  are within the territory of a single high contracting  party, one or more  agreed  stopping  places  being within  the territory  of another state, an indication of at least one  such stopping  place, and

An indication of the weight of the consignment.”

The above clauses do provide for time of delivery but give an allowance for the goods being carried by other means  and by another  carrier and via intermediate  stopping places  which the carrier  deems appropriate.

The above position is also fortified   by Article 5 of the Warsaw Convention which states that:

“ The impossibility  of using at points  of transit  and destination, the  other means which could  preserve  the record of  the carriage referred  to  in paragraph 2 of the Article  does  not entitle  a carrier  to refuse  to accept  the cargo for carriage.”

In this case, there was no evidence that the Airway Bill was varied by another contract and if there be any such variation indicating the time of delivery then it had to be in writing.  This is so, for, as correctly submitted by the 2nd  respondent’s counsels, an oral contract cannot vary  the terms of  a contract which  is required  by  law to be  in writing.( See Kinyanjui & Another V Thande  &  Another (supra); Matiri  & sons  V Nithi  Timber Co-operative Society Ltd (supra) and Deposit  Protection Fund Board V Sunbeam Supermarket Ltd & 2 Others (supra) which espouse the above stated principle.

Accordingly, I  find that there  was  no breach  of contract  by the non- delivery of the consignment  on or  before the  17th December  1997 as there  was no  such contract  that time  was of essence.  The purported oral assurances given by the 1st and 2nd respondents were unenforceable in the circumstances of this case. They were in my view, mere marketing strategies which did not form part of the contract and neither could they vary a written contract of carriage by air.

On the issue  of whether  the claim  for delay/loss or damage was statute barred, the 2ndrespondent  submitted that the appellant’s  suit was statute bared, assuming  it was the right  plaintiff and so  did the  trial court find. Under clause 12:1:3 and 12:1:4 of the contract   of carriage on the reverse of P exhibit No. 12 it stipulates that:

“A person entitled to delivery must make a complaint  to the carrier in writing in case of;-

Delay- within 21 days of the date the goods   are placed at his disposal and of non delivery of the goods within one hundred and twenty (120) days from the date of issue of the airway bill.”

According  to the 2nd respondent, no complaint  was made by the  person entitled  to delivery and in  writing within21 days  from the date  the goods  were expected  to be  delivered.  Thus, neither  the consignee nor  the consignor  complied with the above  clauses in the Airway bill, which is  also a statutory  provision under Article  26 of the  Warsaw Convection as  imported  into the carriage  by Air Act, 1993.  The Article provides that:

“1. ……..

In the case of damage, the  person  entitled  to delivery must complaint to the carrier forthwith after the  discovery of the  damage, and, at the latest, within 7 days  from the date of receipt  in case of  baggage  and fourteen days  from  the date  of receipt  in the case of  cargo.  In the case of delay the complaint must be made at the latest within twenty one days from the date on which the baggage or cargo have been placed at his disposal.

Every complaint must be made in writing upon the document of carriage or by separate notice in writing dispatched within the time aforesaid.

Failing  complaint  within the  time  aforesaid, no action  shall lie against  the carrier , save in the case of  fraud  on his part.”

The consequences of non compliance with the above clause are clear- that no action lays.  This position was stated in the case of Edher Ahmed V.  The General Manager of EAR & H Administration (supra) where it was held that:

Section 92(1) of the East African Railways  and Harbours  Act regulates the procedure  to be followed  in order  to be entitled to compensation and prescribes the steps to be  taken for  seeking compensation  for non-delivery of goods; failure  to comply  with the  prescribed  steps  and within the time  limit deprives the person concerned of his right  to compensation, but not, his right  of cause  of action;

The plaint disclosed a cause of action but the plaintiff was not entitled to compensation since he had failed to comply with the provisions of Section 92 (1) of the Act.”

Section 92 of the East African Railways  and Harbours  Act is similar to clause 12  of the  Airway Bill terms  and conditions  of  carriage  and Article 26  of the  Warsaw Convention .  The said section 92 provided thus:

“ 92(1) No person shall be entitled  to compensation for non-delivery of the whole of a consignment  of  goods, or of any separate  package  forming  part of the  consignment, accepted  by the administration of carriage or warehousing unless a claim in writing giving such particulars as may reasonably be necessary is given to the commissioner  within six months  of the date  upon  which such goods  were accepted  by the administration.”

In that caseof Edher Ahmed V.  The  General Manager of EAR & H Administration, the court found that  although the goods carried were  ruined and lost  by reason of the  negligence of  the defendant’s servant, the plaintiff’s  suit  was dismissed  because the defendant  was protected  by the contract  in writing which  the plaintiff’s entered into with them and therefore that, there  being no  breach of that contract  in the sense that  the  plaintiffs did not observe it  themselves and make their claim in the proper  time, within the contract  time, judgment must  be for the defendants.

In the instance case, assuming that  the appellants are the right claimants  against the  respondents, the 1st letter  written to the 1st respondent (consignor)  not carrier  as stipulated  in the  Convention and the conditions  of  carriage contained in the Airway Bill, is one  dated 5th January 1998 referring to the numerous  telephone  conversations that had not  elicited  any responses  from the 1st respondent  consignor, 19 days  after the date the baggage was to be delivered. That letter indicates that it was copied to the British  Airways  World Cargo Limited , the 2nd respondent and asking the 1st  respondent to instruct  the 2nd respondent to return the goods  to the appellants as the consignee had  rejected them due to the delay. The next letter which was written by the  consignor/1st respondent to the carrier  is dated 16th February 1998 about one  month from the date when the goods ought  to  have been delivered as claimed.  The 1st respondent  was communicating  that  the shipper had requested the shipment  back due to the delay  and stating “despite our several request  to return the shipment back to Nairobi.” However, as at that date, there is no evidence that the consignor or consignee had in writing complained of thedelay to the carrier in writing as stipulated in the Convention. Furthermore, as I have stated earlier, the Consignor or Consignees are not the claimants in the instant case.

Then the appellants on 9th March 1998 wrote to the 1st respondent  for failure to deliver goods to Los Angeles  on or before17th December  1997 as a result of which the  consignee had suffered  irreparable loss and damage and asking for  reshipment back to Nairobi.

The above letter of 9th March 1998 was not written or copied to the carrier.  It was accusing the consignor (shipper) who ought to be lodging a claim and neither was it responsible for carriage and therefore a claim that it returns the goods was frivolous.  In my view, such communication was  misdirected  communication  since a consignor could  not be responsible for the non delivery where it  consigned to the carrier. Only the carrier could be asked to account for the goods or for the delay thereof, assuming that the appellants are the right claimants.

The above said letter was followed by  the letter  dated 10th March  1998  written to  the 2nd respondent  carrier  wherein  the claimant  was Midland Gems  Ltd through its advocates S.G. Mbaabu  & Company Advocates threatening  legal action  for breach  of contract  of carriage  and demanding  immediate  reshipment of the consignment.  All the other  correspondence  were by  the 1st  respondent  and outside the  stipulated  complaints  period .

On the issue  of whether the appellants were entitled  to compensation for the delay and eventual loss  of the consignment  and if so, how  much was the limit of compensation, first and foremost, the entitlement  to compensation was subject to  the proper  party suing  for  damages  for delay/loss. I have already found the appellants were by law strangers to the contract of carriage. They are incapable of suing to enforce that contract as they were never privy to it.  But  assuming that they  were proper parties with locus standi in the matter,  their entitlement  would further be subject to  their complaining in writing within  the statutory/contractual stipulated period as per Article 26 of the Convention and Clause 12  of the Airway Bill ( conditions of carriage).  Having found that their claim was statute barred, it follows that they could not be compensated for the delay/loss or damage.  But assuming that they  complained  within the statutory/contractual period and  claimed within  the statutory period,  then they  would in this case, be entitled to compensation  for the loss only if they proved that  the consignment   was not delivered  within a reasonable  period or  unless there was fraud.  In this case, it is clear that   there was no contract for delivery of the goods on or before 17th December 1997.  There was therefore  absolutely no basis  upon  which the claimant  would  seek to enforce  a contract  that was nonexistent, regarding  time of  delivery. There  is  evidence  on record that  some goods  arrived on 18th December 1997 while others arrived on 21st December 1997  but there was no consignee to receive  them .  In my view, even if the goods were expected to be received  by 17th December 1997  delivery on 18th  and  21st  of the same month  was not unreasonable  in  the circumstances  and therefore in  the absence of any specific  contract  on time of  delivery, I hold that the 2nd respondent  would not  be liable for the delay. On loss, there is evidence by the 2nd respondent that the consignees were contacted for collection of the goods as soon as they arrived in Los Angeles.The consignees were nowhere.They did not collect the goods and as a result  the United States Customs Department confiscated and destroyed them.

Assuming the appellants were entitled to compensation for the delay and or loss of the goods, their claim would be limited to USD 20 per kilogram of 225 kilograms and no more. This is premised on the condition of the contract  of carriage limiting liability, the shipper having failed  to declare a  higher  or actual  value of the carriage on the Airway Bill and or paying   a supplemental charge, which  would have  increased  such limitation of  liability.

The above position is fortified by the provisions of Section 6 of the carriage by air Act, 1993 which provides that:

Limitation of liability.

The limitations on liability in Article 22 of the Convention shall apply whatever the nature of the proceedings by which liability may be enforced and, in particular.

Those limitation shall apply where  proceedings  are brought by a tortfeasor  to obtain  contribution from another  tort feasor; and ……under Article 18  of the Carriage by Air Act, the carrier is  liable for  damage  sustained  in the event  of the destruction  or loss of  or of damage to, any registered  baggage or cargo, if the occurrence  which caused  the damage  so sustained  took place during the  carriage by air.”

In addition, Article 22(2) of the Convention provides  that the carriage registered  baggage and of cargo, the liability of the carrier is  limited to  250 Francs  per kilogram  unless the passenger or consignor  has made, at the  time  when the  package  was handed  over  to the carrier, a special declaration  of interest  in delivery at destination  and has  paid a supplemental sum if  the case so requires.  In that case, the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that sum is greater than the consignor’s actual interest in delivery at destination.

In the case  of loss, damage or delay of part of registered  package, cargo  or of any object  contained  therein, the weight to be taken into consideration  in determining the amount to which the carrier’s liability is limited shall  be only  the total weight of the  package.

Pursuant to Article 24 of the convention   any action for damages can only be brought subject to the conditions and limits set out in the convention.

In addition, Article 24 (1)  of the Act and  24(2) of the  Convention are clear that  such limits  of liability constitute  maximum limits  and may not be exceeded  whatever  the circumstances  which gave rise to  the liability.

The contract  of carriage  as per  the relevant airway bill is  very clearly printed at the extreme right side of the first page that  “ the  shipper’s attention is drawn to the notice  concerning  carrier’s limitation of liability.  shipper  may increase  such limitation  of liability by declaring a  higher value  of carriage  and paying a supplemental  charge if required.”

The notice concerning carrier’s limitation of liability is at the back (reverse) side of the Airway bill. It limits the carriers’ liability to USD 20 per kilogram for any claim for loss of the goods. It is for that reason that I  wholly  agree with  the  2nd respondent’s counsel’s submissions that the appellant  would in any event be entitled to USD 20 per kilogram thus USD 20 x 225  kilograms the convertible  sum at the time as provided for in Article  22(5)  of Convention Act.  However, as the appellants were fatally none suited, they get nothing.

The appellants also complained that the proceedings were not eligible and that the exhibits were missing. However, this court has read all the proceedings as certified by the court below. They are legible and coherent.  This court has  also seen  and perused all the  exhibits produced in the lower court in their original format  and as  contained  in the Supplementary record of Appeal dated 16th October, 2009 which also contained the submissions by the defendant. The challenge by the appellants is therefore misplaced and accordingly dismissed.

In the end, I find that the trial magistrate’s judgment was sound in law and fact. I uphold it and proceed to dismiss the appellant’s appeal herein with costs to the 2nd respondent only since the 1st respondent did not make or file any submissions in this appeal.

Dated, signed and delivered at Nairobi this 23rd day of February 2016.

R.E. ABURILI

JUDGE