Passenger Wins Big Against Five Forty Aviation Ltd For Violating Her Rights 

The High Court in Nairobi (Constitutional and Human Rights Division) has ruled that the failure of an airline to provide sufficient facilities and equipment to assist persons living with disabilities to ascend or disembark from their aircraft is discriminatory, unfair, humiliating, and inhuman. 

Judge H.I. Ong’udi made the ruling following a verbal exchange between a pilot with Five Forty Aviation and a passenger, Dr Agnes Nyanga. She moved to court claiming inhuman treatment from the airline’s members of staff. She is a medical doctor and specialized paediatrician at Nyeri County and Referral Hospital. She claimed that on April 26, 2016, she was scheduled to travel from Eldoret to Nairobi using the Five Forty Aviation flight after attending a three-day seminar.

However, upon arrival at the airport, she inquired whether the airline had a special chair to assist with the boarding of the aircraft only to be informed that there was none and that she would be assisted by four male cabin crew members to get up the aircraft’s steps. At the time of boarding, she, being a priority passenger, was given the first opportunity to board by being wheeled into the aircraft. Her walking aids were taken into the aircraft as four cabin crew members waited to assist her up the stairs. Unfortunately, during the process of being carried up, she slipped as the stairs were wet from the rain, and her leg got stuck in the staircase. She requested the men take her back to the first step to enable her to regain her balance.

In an affidavit, she stated that as she was trying to board, the pilot came out of the aircraft and, in a humiliating manner, remarked that it would take 40 minutes to get her up the stairs. He therefore directed that she be carried down and wait for all the passengers to board the aircraft. She was denied access to her walking aids by the pilot. She revealed that it was at that point that she and the pilot had an altercation over the incident, and he told her that he had a right to decide who would get aboard the aircraft, and in fact, she would not get on board. Feeling humiliated, the petitioner was wheeled back to the airport waiting lounge and she ended up spending the night at the airport. She, however, admitted that she refused to board the aircraft later on because she had been mistreated, humiliated, and discriminated against.

The rude pilot identified himself as Moses Jack Opiyo Odeny also testified and stated that he is a pilot with over 20 years of experience, and on the fateful day, he was flying the evening Nairobi-Eldoret route, which was running late. After the aircraft was ready for boarding, he gave clearance for the passengers to start boarding, with priority passengers, such as disabled persons, being the first to board. He said that since it was raining, he requested that the Nyangah be wheeled back to the waiting lounge so that the other passengers could board, and she boarded last.

He further claimed that when the Five Forty Aviation manager offered to book the petitioner at a hotel for the night, she declined. She also declined the Kenya Airports Authority Manager’s offer to sit in the VIP lounge. The respondent’s manager purchased a ticket for her via Jambojet the next day. In a ruling dated September 22, 2023, by Judge H.I. Ong’udi, the judge noted “Guided by the above decisions, an award of general damages herein shall be adequate to vindicate the petitioner and compensate her for the violation of her constitutional rights”.

The judge further noted, “I have considered what transpired between the petitioner and the respondent’s employees. I, therefore, issue the following orders: “A declaration that the failure of the respondent to provide sufficient facilities and equipment to assist persons with disabilities to ascend the aircraft’s steps and the treatment accorded to her was discriminatory, unfair, humiliating, and inhuman. The petitioner is awarded general damages in the sum of Ksh.400, 000/= (four hundred thousand shillings) for violation of her rights under Articles 27(1) & (4), 28 & 54 of the Constitution”.