Question 4

Nominated Senator Beatrice Kwamboka has lost a court case against national carrier Kenya
Airways (KQ). Kwamboka had sued the airline claiming that she was humiliated following a
downgrade of her flight seat from business to economy. High Court judge Hedwig Ong’undi
ruled that the national carrier had acted reasonably by informing the senator and other
passengers that the plane they were to fly in from Nairobi to Mombasa had developed a technical
hitch. According to the judge, KQ also gave Kwamboka the option of either taking up an
economy class seat with a refund of excess airfare or waiting for another flight that would offer
her a seat in the business class. “The respondent (KQ) tried its best to mitigate the challenges it
faced when it was forced to use an aircraft whose carriage capacity was smaller than what had
been initially booked,” ruled Justice Ong’undi of the Constitutional and Human Rights
Division. At the same time, the judge found that the senator could not prove in her case that she
got an inferior service by sitting in the economy class. “The petitioner has in no way proved that
the quality as stipulated in Article 46 of the Constitution was not reasonable or satisfactory,”
Ong’undi said. She also ordered her to pay the airline the cost of the case.

In the suit filed early this year, Kwamboka complained that her business class seat was sold and
KQ did not offer an apology to her. According to her, the decision to have her fly in the economy
section on December 28, 2020, was unfair as she had paid her ticket in advance. Moreover, she
claimed KQ did not reimburse the excess airfare she had paid and argued that the downgrade
was against her consumer rights. In opposing the case, KQ argued that after its plane developed
a technical hitch, it decided to accommodate the affected passengers in another plane, or
downgrade their class with a refund of the excess airfare. It said that the original flight had 12
business class and 84 economy seats, while the replacement had nine business and 88 economy
seats. KQ said its controller called Kwamboka to inform her of the changes. When he could not
reach her, the judge heard, he sent a text message. The company said the senator was offered a
comfortable seat in the economy class and issued a downgrade form for a refund. At the same
time, the senator was asked if she could wait for a 5pm flight, in which she would fly in business
class. The court heard she rejected the two options. (Extract from The Standard, 24th December
2021 edition)

In Kenya, we have observed a phenomenon where litigation is often filed on what

would largely be considered frivolous grounds, with little to no likelihood of a chance
of success. However, the advocates involved rarely suffer any consequences as a result.

You are a Legal Researcher attached to the Supreme Court. The Chief Justice has tasked
you with researching on the circumstances under which a court may order an advocate
to personally foot the costs of litigation. You come across the landmark Australian case

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of Flowers & Hart v White Industries Pty Ltd (1999) 87 FCR 134, in which the Australian
Federal Court ordered the solicitors pay the successful party’s costs of the proceedings
on an indemnity basis. The court found that the solicitors had advised their client to
institute proceedings which were found to be an abuse of the court process.

With the aid of both statute and decided cases, discuss the consequences of this decision
for lawyers who conduct commercial litigation, considering a lawyer’s (sometimes)
conflicting duties to both the court and the client. (20 Marks)