JUDGMENT OF ONYANGO OTIENO, J.A
I have had the opportunity to read and I have read in draft, the judgment of Bosire J.A. I do concur with him.
I may add that in my view, even if the amended plaint was treated as not filed and the matter proceeded in the superior court on the pleadings in the original plaint, that would not have made any difference as the pleadings in that original plaint left no doubt that the plaintiff was indeed proceeding on the basis of Civil Aviation Act (Cap 394) and Carriage of Air Act – Act No. 2 of 1993. For what would one make of the pleadings at paragraph 4 of the plaint where it is stated:
“4. On 12.7.2000 at about 6 a.m. at SAROVA MARA LODGE in the Maasai Mara Game Reserve the plaintiff was a lawful passenger in the defendant’s Hot Air Baloon when during take off the defendant, his agent and/or servant so negligently piloted, managed and or controlled the said Hot Air Baloon Registration No. 5Y – BLK that he caused or permitted the same to explode and cought…