Busia plane crash: How a 50-word fax message cost taxpayers Sh2.6b

On the evening of January 24, 2003, news started filtering in that a plane had crashed at Busia airstrip after failing to gain height on takeoff.

The government, through the then Transport minister John Michuki confirmed that the plane, a 24-seater Gulfstream was carrying senior government officials who were part of a delegation that was celebrating former Vice President Moody Awori's homecoming after the 2002 General Election win.

The senior government officials in the 5Y-EMJ executive jet were then Labour minister Ahmad Mohammed Khalif, then Water Minister Martha Karua, Raphael Tuju of Tourism and Lina Jebii Kilimo who was then an Assistant Minister for Home Affairs in the Vice President's office.

Unfortunately, Ahmad alongside the two pilots Sammy Mungai and Abdikadir Kuto died while Dr Wanjiru Kihoro, wife of former Nyeri MP Wanyiri Kihoro was seriously injured and went into a coma until she died three years and nine months after the plane crash.

At the time of the accident, then President Mwai Kibaki was in hospital following what was said to be blood pressure and blood clot.

He sustained a broken arm, neck and a dislocated ankle after a road accident at Machakos, a few days to the 2002 elections.

The vehicle Kibaki was travelling in hit a matatu before landing in a manhole at the Makutano Junction along Nairobi-Machakos Highway.

Arrangements were made to have Karua, Tuju and Lina airlifted to Nairobi for treatment.

Investigations into what happened indicated that the runway was short and had a poorly maintained surface.

The runaway was approximated to be 900 metres long, made of murram while the width was estimated to be around 18 metres and rarely maintained.

Snagged power cables

A mechanical error was also claimed to have caused the plane not to gain enough speed for take off.

The claim that mechanical faults could have led to the plane crash prompted Michuki to declare that the government had cancelled the licence issued to the ill-fated plane's owner, African Commuter Services Limited.

The plane snagged power cables at the end of the runway and crashed on a house near the airstrip.

Michuki's announcement within hours would later on become an expensive mistake by the government.

The minister's communication followed Kenya Civil Aviation Authority's (KCAA) drastic action against the airline. The authority sent a 50-word fax cancelling the license.

This letter cost taxpayers Sh2.6 billion after Supreme Court dismissed an appeal by the Attorney General (AG) and KCAA.

The court ordered KCAA to pay Sh1.4 billion while failure to pay in time cost taxpayers an extra Sh1.2 billion in interest.

Ismael Mohamed Jibril owned the aviation firm. The company ventured into the airline business back in 1996.

KCAA issued African Commuter with a license after thorough scrutiny on whether it could operate for-hire passenger and freight air charters, and passenger and freight coach services.

In 2003 when the accident happened, the firm had seven aircraft; two streams, two Jet 410, one I AN 28, a 1 HS 748 and a 1 Sky Van.

Following Michuki's decision, a vicious court battle between African Commuter Services Limited, its director Jibril and the government ensued.

The firm and Jibril sued the AG and KCAA and sought Sh1.3 billion as compensation for grounding its fleet.

The minister also formed a commission of inquiry to probe what happened in Busia. The team was led by Lee Muthoga.

Although the commission submitted its report to Michuki, the findings were not made public.

It was not the first time that plane 5Y-EMJ was carrying senior government officials. The same was the campaign plane for Kibaki when he made trips to North Eastern parts of Kenya.

The plane had also been leased to the United Nations International Children's Emergency Fund (UNICEF) to fly between Kenya and South Sudan.

It was estimated that trips to South Sudan would fetch at least USD 4.2 million per week

Jibril stated that at about 5.30pm he got a telephone call informing him that the plane had crashed. He then leased another plane and flew to Kisumu to facilitate evacuation and ferry the injured to the hospital.

He explained that whenever the plane was not available to fly, he would hire Flamingo Airline, a Kenya Airways subsidiary to do the work.

It emerged that the plane was bought through hire purchase. The cost was USD 666,000 and by the time it crashed, African Commuter had paid 61.3 per cent of the amount.

While in his hotel room, Jibril saw on television Michuki announce the cancellation of the license.

From the court record, it appeared that the accident had triggered a flurry of actions from government officials, and in the process of reacting to the incident, some got it all wrong.

Denying liability

At the African Commuter Services Nairobi, a fax machine signalled that there was a message sent. Upon printing, it was a handwritten note but had been addressed to the wrong company- Commuter Air Services.

The message had been sent by the KCAA, indicating that it had suspended the operator's license pending investigations. It however did not give any reasons not did not indicate the particulars of the suspended certificate.

Although the message was addressed to Commuter Air Services, Jibril narrated that his company appealed the decision but the plea for reinstatement fell on deaf ears.

According to Jibril, African Commuter Services and Commuter Air Services were totally two different entities.

Jibril then filed another plea to KCAA to allow its pilots to continue flying. However, this was also turned down.

KCAA's director had initially not specified what law he relied on to suspend the airline's license. However, in his letter rejecting African Commuter Services application to allow its pilots continue flying indicated that he was relying on Kenya Air Navigation Regulations as the basis for the suspension.

After hitting a dead end, the company opted to sue.

Meanwhile, on January 12, 2004, the authority and the AG issued a joint statement denying liability for any loss the firm had suffered.

Before the High Court, KCAA claimed that it acted after finding that the airline was not following aviation regulations.

The authority claimed that African Commuter Services ought to have ensured that its planes had enough personnel and equipment to guarantee passenger safety. Former KCAA Director General Chris Kuto testified. He said that the accident happened following poor professional planning.

Interestingly in their statement KCAA and the AG stated that neither Michuki nor Kuto suspended or cancelled any license.

Both African Commuter Service and KCAA called three witnesses.

After hearing the rival arguments, Justice Roselyn Nambuye wrote a 313-page judgment awarding Africa Commuter Sh950 million.

She awarded Sh177 million for the loss of business by the remaining aircraft, Sh608 million for three years losses and Sh318 million compensation for total losses.

In her verdict dated December 18, 2008, the judge was categorical that government was in mere denial after realising that it had unfairly locked out the airline from operations.

She ordered the AG to officially communicate the accident inquiry report to African Commuter Service within 30 days.

Justice Nambuye also awarded the firm Sh10 million as special damages.

This would then trigger multiple battled before the Court of Appeal, the Supreme Court and again the High Court. The battle would then drag in banks as African Commuter Service sought to attach KCAA's accounts.