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

Then Transport Minister John Michuki. [File, Standard]

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.

Investigations into what led to the crash indicated that the runway was short and had a poorly maintained surface.. [File, Standard]

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.