High Court Judge Hedwig Ong’udi has ruled that Fly 540, a domestic low-cost airline, must pay Agnes Mithamo Nyaga, a woman with a disability, Ksh 400,000 in damages for their failure to assist her in boarding one of their aircraft six years ago. The incident occurred at Eldoret International Airport on April 29, 2016, where Fly 540 was found to have discriminated against Dr. Nyaga by not providing the necessary equipment to facilitate her boarding.
Judge Ong’udi emphasized that persons with disabilities are entitled to the essential tools and means required to lead a reasonably comfortable life in society, including access to various places. On the day in question, Dr. Nyaga was returning to Nairobi after attending a three-day conference hosted by the Kenya Pediatricians Association in Eldoret. Unfortunately, Fly 540 did not have specialized equipment such as chairs to aid her in embarking and disembarking from the aircraft.
The judge’s ruling stated, “I find that the respondent did indeed violate the petitioner’s right against discrimination under Article 27 (1) & (4) of the Constitution which in turn violated the petitioner’s right as a person with disability under Article 54(1)(a) of the Constitution since the differentiation was based on her disability.”
Judge Ong’udi made it clear that it was not Dr. Nyaga’s responsibility to ensure her own boarding without assistance; it was the airline’s obligation to provide her with the necessary means from the outset, which they failed to do.
Dr. Nyaga had filed a lawsuit against the airline seeking damages for infringing on her fundamental rights and freedoms and for causing her mental anguish. She testified that during the boarding process, Fly 540’s check-in staff typically asked her if she could board the aircraft unaided. Dr. Nyaga explained that her disability made it difficult for her to climb stairs.
She further described how, upon check-in, she was provided with a wheelchair and wheeled to the aircraft, some of which were equipped with chair lifts or forklifts for easier access. However, during the incident in question, it was the pilot who denied her the use of the forklift.
The court heard that when Dr. Nyaga arrived at Eldoret Airport, she inquired about the availability of a special chair for boarding the aircraft. Allegedly, she was informed that none were available, but she would receive assistance from four male cabin crew members to ascend the aircraft’s steps.
However, as she was being assisted up the staircase into the aircraft, she slipped and had her leg wedged in an opening on the stairway. Although she attempted a second boarding, the Captain intervened, stating that it would delay the flight by up to 40 minutes to get her up the stairs. Consequently, Dr. Nyaga was wheeled back to the airport waiting lounge, where she spent the night and traveled to Nairobi the following day with a ticket provided by Jambojet, a different airline.
She claimed that Fly 540’s airline manager did not communicate with her regarding the incident. It wasn’t until the following morning that she met the airport manager, recounted her experience, and was provided a ticket for a Jambojet flight to Nairobi.
In response, the pilot denied Dr. Nyaga’s claims and stated that when he arrived, he found a commotion on the tarmac as she was resisting assistance and attempting to board independently. Fly 540’s management offered to book her at a hotel for the night or allow her to sit in the VIP lounge, but she allegedly declined these offers.