A Canadian plane leasing firm has failed to block the auction of its two aircraft at Wilson Airport over a debt of Sh163 million owed by low-cost airline Fly 540.
High Court judge Josephine Mong’are cleared the way for Nairobi Connection Services Auctioneers to access to view the aircraft – 5Y-BXC bombardier CRJ and 5Y RJS DHC-8-300 – at Wilson Airport, to make proper judgment on what they are selling.
Canadian firm Avmax Aircraft Leasing Inc had opposed the attachment, arguing that it was the registered owner of the six aircraft identified by the auctioneer, but it was not a party to the dispute between Fly 540 and Finejet Ltd.
Fly 540 was embroiled in a dispute with Finejet over a debt arising from the supply of jet fuel and obtained a court order to attach the aircraft for sale in order to recover the debt.
“The officer commanding Lang’ata Police Station or an officer in the rank of inspector do hereby accompany the auctioneer for purposes of maintaining law and order,” said the judge.
The auctioneer sought the court’s intervention saying the Kenya Airports Authority (KAA) had denied them entry into Wilson Airport.
While dismissing the application, Justice Mong’are said Avmax had relied on letters from Kenya Civil Aviation Authority to claim ownership but had not produced any document, including certificates of registration of the aircraft, as proof of ownership.
“The court reiterates its previous position that unless actual documents of ownership are presented, it will be presumed that the aircraft belong to Five Forty and are available for attachment in satisfaction of the judgment debt,” said the judge.
The judge added that in an earlier ruling issued on October 3, 2023, the court rejected a similar application by Avmax.
“I, therefore, decline to lift the Warrants and stay the execution based on Avmax’s contention that it is the owner of the aircraft as it has not exhibited actual proof of ownership and the court had previously ruled on the same and is now functus officio [task performed] on the matter,” added that the judge.
Justice Mong’are also dismissed an application by KAA to block the sale of the aircraft, saying the authority had failed to provide evidence that Fly 540 owed it millions of shillings in landing and parking fees.
KAA claimed that Fly 540 owed it about Sh37 million and that it therefore had an interest in the aircraft.
“Schedules alone cannot be sufficient for KAA to claim a legal and equitable interest over the aircraft which I have found, belong to Five Forty. Thus, I am in agreement with Finejet’s averment that it is Five Forty, and not KAA that has a legal and equitable interest over the Aircrafts,” Justice Mong’are said.
The judge said since both Avmax’s and KAA’s applications had failed, the natural consequence was for the auctioneer to be granted access by KAA to view the aircraft.
Avmax, through its local agent David Kuria, moved to court stating that it was apprehensive that the attached aircraft would be sold if the court did not intervene.
John Kimani, a director of Finejet Limited, a fuel supplier, opposed the application arguing that it was an attempt to appeal against two rulings issued by the High Court last year, allowing the attachment and sale of the aircraft.
