Busia crash plane owner wins Sh1bn

Taxpayers will pay more than Sh1 billion to the owner of the plane that killed a Cabinet minister and two pilots in 2003 following a decision by the Court of Appeal on Friday.

The court, however, saved the government more than Sh600 million after an appeal by the Attorney-General and the Kenya Civil Aviation Authority.

In December 2008, Justice Roselyn Nambuye awarded Sh950 million to the African Commuter Services Ltd, the owners of the 24-seater Gulfstream plane that crashed after taking off from Busia airstrip on January 24, 2003.

On Friday, the Court of Appeal revised the damages to Sh363 million plus costs and the interest accrued since 2003.

The costs and interest will push the total bill to more than Sh1 billion, according to lawyer Fred Athuok, who held brief for the airline.

“It has been an 11-year battle that started from the commission of inquiry in Busia, then went through the High Court process and finally the Court of Appeal,” he said.

Then Labour minister Ahmad Mohammed Khalif and the two pilots died in a nearby hospital shortly after the 5 pm accident while three others — Raphael Tuju (Tourism), Linah Kilimo (Office of the President), and Martha Karua (Water) — were later airlifted with serious injuries.

Dr Wanjiru Kihoro, who was also involved in the accident, died after being in a coma for three years and nine months.

Within hours of the crash, then Transport minister John Michuki revoked the airline’s operating licence and efforts to reverse the decision were unsuccessful.

Airline managing director Ismael Mohammed Jibril said he suffered irreparable damages as he was forced to fold the business.

Mr Jibril argued that the action taken against him was drastic, unwarranted and discriminatory because since 1996 when he held the first licence, he had not had any problems with the KCAA.

On Friday, the Court of Appeal agreed that he had lost revenue and awarded him Sh110 million for gross turnover average, Sh93 million for loss of aircraft 9XR-AL and 9XR-A as well as Sh67 million for aircraft 9XR-AB.

For capital losses, the company was paid Sh21 million for instalments paid for aircraft 5Y-EMK and Sh10 million for another 5Y-EMK.

The company was further awarded Sh50 million for consequential losses and Sh10 million for aggravated damages.

The airline owner told the High Court that the action taken against him had never been taken before in Kenya or anywhere else after an air crash.

The airline called Captain Joe Mule Mutungi, one of the pioneer African pilots in Kenya, who told the court that he had never come across a situation where the operator’s certification is cancelled because of an accident in the 30 years he had been in the aviation industry.

To support his argument, the pilot cited the Kenya Airways accident in Cameroon, the 2004 Blue Bird plane crash in Kitui, East Aviation Safari Airways crash in 2003 in Lokichogio, 2001 Aircraft Leasing Services accident  at JKIA and 2000 crash in Ivory Coast involving a KQ plane.

Saturday, Mr Athuok described the judgment as very important to aviation the industry which is capital intensive.