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JudgmentAlpha Aviation Flying School VS Ahmed Mohamed Abdallah11 min read

Alpha Aviation Flying School VS Ahmed Mohamed Abdallah

High Court at Milimani High Court · · Andayi W.F.

(Being an Appeal from the entire judgment and decree of the Resident Magistrate/Adjudicator Hon. C. A. Okumu made on the 28th June 2022 SCCC No. E1855 of 2022)

  1. This is an appeal from the judgment of the Small Claims Court (SCC) which allowed the respondent’s claim against the appellant in the sum of KShs 571,500/= being fees paid by the respondent to the appellant when the respondent enrolled for a pilot training course at the appellant’s school. The respondent claimed that the respondent lacked the requisite registration to offer the course and thus the training was not offered as required.
  2. The facts leading up to this appeal are set out in the respective pleadings of the parties in the trial court.
  3. That the respondent enrolled for a pilot training course at the appellant’s institution and paid the fees, the subject of the claim for refund in the trial court, is not in dispute.
  4. According to the respondent through his statement of claim dated 28/3/2022, since he joined the appellant’s school he only attended “ground school” classes from 10/1/2020 to 26/3/2020 but never received any flying classes. Part of his training would require him to undertake flying lessons in order to attain the qualifications of a pilot. It was his plea that the appellant failed to fulfill his part of the bargain and the respondent suffered major inconvenience and thus the claim for refund of the money paid as fees.
  5. The appellant in its response to the claim dated 10/5/2022 pleaded that it is ready and willing to offer flying classes to the respondent. However, the respondent has failed to complete the Integrated Ground Course and sit for his Internal Computerized examinations as required by the course he was undertaking before being offered flying classes. He is therefore not eligible to fly. It therefore urged the court to dismiss the claim.
  6. At the hearing each party called one witness. The respondent gave evidence and adopted his witness statement dated 17/8/2022. The appellant gave evidence through Abdulkadir Hassan RW, 2. He adopted his witness statement dated 9/5/2022. 
  7. The learned adjudicator considered the evidence and submissions filed by learned counsels for the parties and concluded that the respondent was entitled to rescind the contract on grounds that the appellant misrepresented to the respondent that they would be able to offer pilot training at their institution which the respondent relied upon to pay the KShs 571,000/=. 
  8. It is that judgment that has precipitated this appeal based on the grounds set out in the memorandum of appeal dated 25/7/2022.
  9. The appellant raised several issues in the grounds of appeal contending that they are errors of law made by the learned trial Adjudicator in arriving at her decision. The appeal was disposed of by way of written submissions filed by learned counsels for both parties.
  10. I have considered the grounds of appeal raised in the memorandum of appeal, the record of appeal and the submissions by learned counsels for the parties.
  11. The eight grounds of appeal set out in the memorandum can be summarized into three as follows:
    1. the learned trial Adjudicator’s judgment was inconsistent with the law, pleadings and issues framed for determination and thereby reached an erroneous conclusion in law.
    2. the learned trial Adjudicator took into account extraneous matters and failed to take into account relevant matters in violation of Articles 25 and 50 of the Constitution on the right to be heard, the principles of natural justice and stare decisis and thereby reached an erroneous conclusion in law.
    3. the learned trial Adjudicator failed to appreciate the law of contract and apply it to the case before her when determining the issue of whether the respondent was bound by the terms in the letter of offer dated 17/1/2020 by finding that the appellant misrepresented itself to the respondent and it had breached the contract between them.
  12. An appeal to this court from the SCC is on points of law only as provided for under section 38 of the SCC Act.
  13. The Court of Appeal in the case of M’Riungu v. Republic [1983] KLR 455, has given guidance on how to proceed in an appeal on points of law thus:

“where a right of appeal is confined to question of law, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of fact and law and it should not interfere with the decision of the trial court or the first appellate court unless it is apparent that on evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding that the decision is bad in law”.

  1.   The appellate court may however interfere with the findings of the trial court where it is demonstrated that there was no evidence at all upon which such findings were based or that the evidence relied upon was of such a nature that no reasonable tribunal, properly addressing its mind on it, could have made such findings as has been held in numerous decisions. (see for instance Bashir Haji Abdullahi v Adan Mohammed Nooru & 3 others [2014] eKLR.
  2. The first ground of appeal is that the decision of the learned trial Adjudicator is inconsistent with the law and issues framed for determination.
  3. The parties did not frame common issues for determination by the trial court. Each of them framed issues in their respective submissions. The issues framed by the appellant were:
    1. Whether the respondent (appellant herein) was accredited to offer pilot training.
    2. Whether Valentine Air Service, a third party institution, was privy to the contract between the Respondent (appellant herein) and the Claimant.
    3. Whether a pilot training organization can subcontract the training services of another pilot training organization.
    4. Whether a certificate of insurance validates a sub-contractual relationship between the Respondent (appellant herein) and Valentine Air Service.
  4. The issues framed by the appellant (respondent in the trial court) were:
    1. Whether the Claimant (respondent herein) attended the required class attendance as per the institution requirement.
    2. Whether or not the Claimant (should be the Respondent in the trial court who is the appellant herein) is a recognized institution by the Kenya Civil Aviation Authority.
    3. Whether or not the Claimant (respondent herein) is entitled to the orders sought in the statement of claim dated 26/3/2022.
    4. Who should bear the costs of the suit?
  5. The learned trial Adjudicator in her judgment found the issues for determination to be:
    1. Whether the Respondent (appellant herein) was accredited to offer flying lessons to the Claimant (respondent herein), and
    2. Whether the Claimant is bound by the terms of outline by the offer letter dated 17/1/2020.
  6. The parties having presented divergent issues to the learned trial Adjudicator and considering the pleadings and evidence of the parties and the submissions tendered by learned counsels I am satisfied that the learned trial Adjudicator was right in framing the issues as she did. The same can be rephrased as whether there was breach of contract by the appellant that would entitle the respondent to rescind the contract between the parties and ask for a refund of his money paid as fees.
  7. Consequently, the main issue for determination in this appeal is whether or not the learned trial Adjudicator erred in her finding that rescission of the contract by the respondent was valid and the consequences ensuing therefrom.
  8. In determining the issue, the court has to fall back on the law governing training of pilots and determine whether either of the parties was in breach thereof.
  9. The contract between the appellant and the respondent is not disputed at all. It was the respondent’s case that whereas he performed his part of the bargain by making payment for the course as required by the appellant, the appellant never met its part of the bargain and it was not capable of fulfilling the same as it was not registered to offer a pilot training course.
  10. The appellant’s position was that the respondent failed to attain a 90% attendance of grounds lessons per month to make him eligible for flying lessons as per the school’s regulations. However, the school was and is still willing to indulge him even through a crash programme to complete the ground lessons and attain the qualification to attend flying lessons.
  11. The evidence on record is that the appellant is not registered to offer pilot training in Kenya. The respondent said that he received intelligence information that in fact the appellant was not certified to offer the pilot training course and when he checked the regulator’s website for the schools accredited to offer pilot training, the appellant’s name did not appear. This caused him to worry about how genuine the course he was undertaking with the appellant was.
  12. Learned counsel for the appellant submitted that the issue raised by the respondent about its lack of registration to offer pilot training was baseless as it had an Air Service License (ASL) issued by Kenya Civil Aviation Authority (KCAA) which allowed it to operate in the field of aviation. This fact was not challenged by the respondent. But does possession of an ASL authorize the appellant to offer a pilot training course?
  13. The appellant conceded in its evidence in court through its witness RW 1 that it was not in possession of an Approved Training Organization (ATO) certificate. It then said that it had sub-contracted the training to Valentine Air Services, a third party to offer the training on its behalf.
  14. The law regulating pilot training in Kenya is the Civil Aviation Act (Cap. 394) Laws of Kenya which provides for the control, regulation and orderly development of civil aviation
    in Kenya. There are various regulations under the Act known as the Kenya Civil Aviation Regulations (KCAR) governing civil aviation operations under the Act. One such regulation is the Civil Aviation (Approved Training Organizations) Regulations 2018 (LTO), and another is the Civil Aviation (Licensing of Air Services) Regulations, 2018 (LAS).
  15. The appellant’s evidence was that it has a certificate under the LAS to offer training of pilots. The LAS Regulations provide for licensing of internal and international air services, general provisions relating to licenses, franchising of air services, appeals from decisions of KCAA, and offences and penalties in case of breach of the regulations. Section 24(b) of the LAS Regulations provides that a licensee under the regulation shall not provide or cause to be provided flying instructions except under a valid Approved Training Organization (ATO) certificate, issued by the Authority in this case, the Kenya Civil Aviation Authority (KCAA).
  16. The ATO Regulations on the other hand provide for the requirements for certification and location, and training for flight crew, licenses and ratings, training for licenses and ratings for licensed maintenance engineers, air traffic controllers and flight operation officers. With respect to training of pilots the Regulations provide in part as relates to this case under Regulation 17 as follows:

“17. The Authority may approve, as provided in the training specifications, the following courses of instruction to an applicant for, or a holder of an approved training organisation certificate, provided the applicant meets the requirements of the Civil Aviation (Personnel Licensing) Regulations, and these Regulations –

(a) private pilot licence course;

(b) commercial pilot licence course;

(c) …

  1. The ATO Regulations require that an organization offering training of pilots has to obtain an ATO Certificate. S.3(1)(b) provides that “A person, other than (b) an operator with an approved training programme in its operations manual under Civil Aviation (Operation of Aircraft) Regulations, shall not hold out as or operate an approved training organization without, or in violation of, an approved training organization certificate and training specifications issued under these Regulations.”
  2. With respect to sub-contracting of training activities, Regulation 13(3) of the ATO provides that, “An approved training organization may sub-contract certain activities to any other organizations subject to the approval of the Authority.”
  3. An approved training organization is defined under section 2 of the ATO Regulations thus, “approved training organization” means an organization approved by the Authority to perform approved training as specified in these Regulations and operating under the supervision of the Authority.”
  4. From the foregoing provisions of the law, it is apparent that for an organization to offer of training of pilots, it must be holding an approved training organization certificate. The appellant having conceded in evidence that it was not a holder of such a certificate, it follows that the it could not offer the pilot training course to the respondent as per the contract. It matters not that the respondent attended the requisite number of ground classes with the appellant because in the end he would not qualify under the KCAA to be a pilot.
  5. The appellant also argued that it had contracted the flying lessons to Valentine Air Service and therefore the respondent would receive the lessons from there once he satisfied the ground lessons attendance requirements. Regulation 13(3) of the ATO Regulations provides that an “approved training organization” (emphasis mine) may sub-contract some of its activities to any other organization. This regulation still requires that the contracting organization has to be an approved training organization.
  6. The effect of the appellant’s lack of an Approved Training Certificate as provided for under the Act meant that the appellant could not offer as a course what it purported that it could in its letter of offer for pilot training to the respondent. It was a misrepresentation by the appellant to the respondent that it could offer the course in pilot training, whether ground lessons or flying lessons. The respondent was therefore in order to consider the contract as vitiated by virtue of the misrepresentation by the appellant and proceed to rescind the same as he was not bound to get any value for the training. Having rescinded the contract, the respondent is entitled to restitution by way of refund of the money paid to the appellant.
  7. I find that the learned trial Adjudicator did not err in law in finding that there was misrepresentation by the appellant to the respondent on its ability to offer the course and that the appellant was liable to refund the money paid to the respondent.
  8. Consequently, I find the appeal has no merit and the same is dismissed and the order of the learned trial Adjudicator affirmed.
  9. The appellant will also get the costs of this appeal.
  10. Delivered, dated and signed at Milimani on the Virtual Platform, Teams this 30th day of July 2024.

In the presence of:

Mr. Ndege for the Appellant.

Torotwa for the Respondent.

Eutropia Court Assistant.

Mr. Ndege: We request for a copy of the judgment.

Torotwa:  We consented to a stay of execution.  The applicant

deposited security for costs being the decretal sum.  We pray that the sum be remitted to the respondent.

Mr. Ndege: No objection.

Court: The decretal sum deposited in court to be paid over to the respondent through his advocates on record.

Orders accordingly.


    Alpha Aviation Flying School VS Ahmed Mohamed Abdallah Alpha Aviation Flying School VS Ahmed Mohamed Abdallah