Modernise Carriage by Air Act to eliminate uncertainties

Kenya’s Carriage by Air Act No. 2 of 1993 is modelled on the 1929 Warsaw Convention, a framework created nearly a century ago to support the then nascent international air transport industry.

The Convention was conceived for two main goals: To standardise handling of claims arising from international air transportation, and to limit air carriers’ potential liability in the event of accidents, which is evidently its overriding objective.

The Act directly incorporates this outdated regime into Kenya’s domestic legal regime. This misalignment is clear, as several Kenyan carriers operate internationally and fall under the broader, more adaptive and passenger-focused liability system of the 1999 Montreal Convention.

The situation is compounded by Kenyan courts’ inconsistent views on whether the Montreal Convention applies domestically through Article 2(5) of the Constitution.

The absence of judicial consensus creates uncertainty for passengers, carriers and legal professionals underscoring the need for a clearer legal framework.

The Act outlines the liability of carriers in cases of death, injury, baggage or cargo damage, and delays. The Act incorporates Article 22 of the Warsaw Convention, which sets limits on liability and compensation for specified situations.

The Act empowers the Cabinet Secretary for Finance to publish the Kenya Shilling equivalent of the gold-franc based compensation limits through gazette notices.

Despite this provision, the last adjustment was made in 1993 through Legal Notice No. 189, setting the equivalent of 250,000 gold francs at Sh1,306,286 or $20,000. Thirty years on, this amount has not changed, despite the sharp rise in inflation and cost of living. The lack of periodic inflationary reviews has resulted in domestic air accident victims receiving inadequate compensation.

The Act’s compensation model does not account for inflationary adjustment. As a result, passengers remain exposed to compensation regimes driven by antiquated models rather than consumer protection.

The Montreal Convention implores the International Civil Aviation Organisation to review liability limits for inflation every five years with the latest revision taking effect on December 28, 2024. Other jurisdictions have modernised accordingly. In South Africa, the Carriage by Air Act of 1946 was amended in 2006 to provide for compensation reviews aligned to the Montreal Convention.

This ensures victims receive fair compensation reflective of current economic conditions.

Kenya’s reliance on a domestic liability regime that offers no room for inflationary adjustments on compensation limits has rendered the Act ineffective in protecting consumers.

To align with global standards and restore fairness, Kenya must urgently reform its domestic liability regime by adopting an automatic inflation indexing mechanism, or issuing regular Gazette Notices tied to revised Special Drawing Rights (SDR) values. Only then can the Act fulfil its protective purpose in a contemporary aviation environment.

Kashindi is an aviation expert who acts for key aviation regulators, airlines and companies. Kyalo is a Partner at the firm of Jama Munene Kyalo (JKM) Advocates LLP