Airline to pay woman with disability Sh400,000 for discrimination

A Fly540 plane at the Julius Nyerere International Airport (JNIA), Dar es Salaam. FILE PHOTO | NMG

A local low-cost airline has been ordered to pay a woman living with disability Sh400,000 for failing to assist her board its aircraft six years ago.

High Court judge Hedwig Ong’udi found that Fly 540 discriminated against Agnes Mithamo Nyaga after failing to provide her with special equipment to enable her to board the plane at the Eldoret International Airport on April 29, 2016.

The judge ruled that persons with disabilities are entitled to the necessary tools and means to live reasonably and comfortably in society, including how they can access various places.

Dr. Nyaga was travelling from Nairobi after attending a three-day Kenya Pediatricians Association conference in Eldoret but the airline did not have special chairs to assist her in embarking and disembarking from the aircraft.

“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 living with disability under Article 54(1)(a) of the Constitution since the differentiation was based on her disability,” the judge said.

Justice Ong’udi stated that it was not her responsibility to ensure that she got into the aircraft by all means necessary, but it was the obligation of the airline to provide her with the necessary means from the beginning but failed to do so.

Dr Nyaga had sued the airline seeking damages for contravening her fundamental rights and freedoms and for subjecting her to mental anguish.

She told the court that while boarding the aircraft, the airline check-in staff ordinarily asked her whether she was able to board the aircraft unaided.

Dr Nyaga said she sometimes boards unassisted and acknowledged that her disability makes it difficult for her to climb stairs.

It was her evidence that upon checking in, she was given a wheelchair and wheeled to the aircraft some of which had a chair lift or a forklift to enable her access.

However, during the incident, it was the pilot who denied her the use of the forklift.

Dr Nyaga said she was travelling from Eldoret to Nairobi using Fly 540 airline after attending a three-day seminar.

Upon arriving at the Airport she enquired whether the airline had a special chair to assist with boarding the aircraft and was allegedly informed that there was none but she would be assisted by four male cabin crew members to get up the aircraft’s steps.

At the time of boarding, she was given the first opportunity to board by being wheeled to the aircraft. Her walking aids were taken into the aircraft, as four cabin crew members waited to assist her up the stairs.

Unfortunately, as she was assisted up the staircase into the aircraft she slipped and had a leg wedged in an opening in the stairway.

She made a second attempt to board the plane but was cut short by the Captain who said she would delay the plane because it would take up to 40 minutes to get her up the stairs.

Dr Nyaga said she was wheeled back to the airport waiting lounge, where she spent the night at the airport and travelled to Nairobi the following day after the airline management got her a ticket with Jambojet.

She averred that the respondent’s airline manager did not communicate with her over the incident. She met the airport manager the following morning where she recounted her experience, and he got her a ticket on the Jambojet airline to Nairobi.

The pilot denied the claims and said he came out and found a commotion on the tarmac as she was refusing to be assisted to board and wanted to do it herself.

The court heard that the management offered to book her at a hotel for the night or sit in the VIP lounge but she allegedly declined.

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