Fly540 wins cargo deal appeal

An airline has won an appeal case on a Sh28 million cargo handling deal with another airline company.

Five Forty Aviation, which operates Fly540, won the case it lodged before the Court of Appeal thus denying Tradewinds Aviation Services Limited $275, 264.77, the equivalent of Sh28,076,928, for the two-year contract.

Tradewinds initially moved to the High Court where it claimed that the two parties entered into an agreement dated November 7, 2006.

It claimed it was contracted to provide Five Forty with ground handling services which included passenger, ramp and cargo handling services for a period of two years.

The deal did not last to its last date as Five Forty terminated Tradewinds’ services on account of unsatisfactory work.

Five Forty in its defence argued that charges levied by the contractor were exorbitant, erroneous and were not as per the agreement.

It also placed a counter claim alleging that Tradewinds had caused damage to its aircraft and that it was entitled to recover the cost of repairs to that aircraft and loss of revenue as a result of the aircraft being grounded for repairs.

The High Court dismissed the claim by Five Forty and gave Tradewinds it pleas on summary prompting an appeal, during which justices Alnashir Visram, Hannah Okwengu and Sankala ole Kantai, were told that the latter had not proved its case and thus was not entitled the award.

The three judges ruled that:“Learned counsel for the appellant (Five Forty) submitted before us that the respondent (Tradewinds) could not be allowed a summary process when it had not produced documents in support of the claim. We agree.

"As we have just shown, the respondent was telling the learned judge that it could not produce charge notes because they were bulky. Those documents were not agreed by the appellant.”

In the case, the High Court was faulted for holding that a charge note was raised by the Tradewinds for every service rendered when such charge note was not produced in evidence.

The lower court was also faulted for ignoring material presented by Five Forty and for holding the airline company liable for the miscarriage of the deal.

“The court concurs with the applicant that though the respondent has claimed special damages the amounts claimed have not been specified.

"It is trite law that special damages must specifically be pleaded before they are proved specifically.