Ask a lawyer:
Civil Aviation Act, Cap 394, Section 5E Summary of Protection from Personal Liability: Protection Provision: Under Section 5E of the Civil Aviation Act, Cap 394, any actions done by members, officers, employees, or agents of the Authority are protected from personal liability as long as these actions are performed in good faith while executing their functions, powers, or duties under the Act. Conditions: This protection applies only if the actions are carried out bona fide. The intention is to safeguard individuals performing their official duties from personal legal repercussions when acting within the scope of their roles. Compensation and Damages: As clarified in Section 5F, this protection from personal liability does not absolve the Authority itself from the liability to pay compensation or damages. If any injury or damage is caused by exercising powers under the Act, the Authority remains liable to compensate affected parties. This framework ensures that individuals working within the Authority can perform their duties without fear of personal lawsuits, while the Authority maintains accountability for its actions.
Sources relied on
Primary legislation (Kenya)
Civil Aviation Act, Cap 394 (as revised), Section 25 – “Protection from personal liability” (this is the current equivalent of the former sections 5E and 5F). (new.kenyalaw.org ↗)
Constitution of Kenya, 2010
Article 160(5) – Judicial immunity for acts done in good faith. (new.kenyalaw.org ↗)
Article 250(9) – Immunity of members of commissions and independent offices for acts done in good faith. (sheriahub.com ↗)
Comparative Kenyan statutes with similar wording (used only to explain “good faith” & immunity principles)
Public Procurement and Asset Disposal Act, section 178(1) (immunity of public officers for acts done in good faith). (new.kenyalaw.org ↗)
Kenya Deposit Insurance Act, section 13(1) (similar “bona fide acts” clause). (kenyalaw.org ↗)
Key case law on “good faith” and statutory immunity
Douglas Kipchumba Rutto v Kenya Anti-Corruption Commission & 8 Others [2013] eKLR – immunity of investigators limited to acts done in good faith; immunity is not absolute and does not bar all suits. (sheriahub.com ↗)
Bellevue Development Company Ltd v Gikonyo & 3 others (Petition 42 of 2018) [2020] KESC 43 (KLR) – Supreme Court discussion of “good faith” and bad faith in the context of judicial immunity, widely cited for general principles on what good faith means. (new.kenyalaw.org ↗)
Ng’ethe & another v Republic (Criminal Appeal 57 of 2021) [2025] KECA 1549 (KLR) – Court of Appeal explaining that statutory immunity for acts done “in good faith” is a qualified defence and that good faith is a factual question. (new.kenyalaw.org ↗)
Environment & Land Case E012 of 2024 – ELC reaffirming that public officers are shielded from personal liability for duties done in good faith, and explaining the concept of bad faith. (kenyalaw.org ↗)
(All statutory and case references are from publicly accessible Kenyan legal databases.)
1. Is your summary of section 5E / 5F (now section 25) legally accurate?
In substance, yes – your summary is accurate, with a few points of clarification and updating.
Under the current consolidation of the Civil Aviation Act (Cap 394), the provision you are summarising appears as Section 25 – “Protection from personal liability”, which states in essence that: (new.kenyalaw.org ↗)
No personal liability if acting in good faith
No action or thing done by a member of the Board, officer, employee, agent, or any person acting under their direction of the Kenya Civil Aviation Authority (KCAA)
Shall render that person personally liable to any action, claim or demand
Provided the act or omission was done in good faith for the purpose of executing the functions, powers or duties of the Authority under the Act.
Authority still liable to compensate
The provision expressly adds that this immunity does not relieve the Authority itself of liability
KCAA remains liable to pay compensation or damages for injury to persons, property or interests caused by exercise of powers under the Act or, for example, by the failure of works.
So your core points are correct:
Protection from personal liability for KCAA’s board members, staff and agents
Conditioned on good faith / bona fide exercise of official powers
Does not shield the Authority itself from having to pay compensation or damages.
The only technical refinement is that, in the current numbering, this is Section 25(1) and (2) of the Civil Aviation Act, Cap 394. Former references to sections 5E and 5F are essentially the pre‑renumbering equivalent. (new.kenyalaw.org ↗)
If you are writing something formal today, it is safer to cite it as:
Section 25 of the Civil Aviation Act, Cap 394 (Protection from personal liability) – formerly sections 5E and 5F in earlier consolidations.
2. What does “good faith” mean in practice?
The entire protection hangs on “good faith”. Kenyan courts, across many statutes, have built a fairly consistent picture of what this means:
Good faith = honest and lawful pursuit of statutory duty
In Douglas Kipchumba Rutto v KACC, the court held that immunity for investigators exists only where acts or omissions are done in good faith; there is no blanket immunity. (sheriahub.com ↗)
Similarly, in Ng’ethe & another v Republic, the Court of Appeal held that immunity under section 178(1) PPADA is not absolute; it protects only acts done in good faith, and good faith is a question of fact to be determined by the trial court. (new.kenyalaw.org ↗)
Bad faith removes the shield
Courts repeatedly say that bad faith includes things like:Fraud or dishonesty
Malice or ulterior motives
Abuse of power
Grossly unreasonable or arbitrary conduct
Acting outside statutory powers or for an improper purpose.
The Supreme Court in Bellevue Development Co. Ltd v Gikonyo & 3 others (dealing with judges, but using general principles) held that bad faith covers malicious, fraudulent, dishonest or perverse conduct, or gross illegality, and that where such bad faith exists, immunity falls away. (new.kenyalaw.org ↗)
The Environment and Land Court has said similar things in ELC E012 of 2024, stressing that bad faith means “a lack of honest or genuine attempt to undertake the task” and that it is a serious allegation with a high burden of proof. (kenyalaw.org ↗)
Negligence vs bad faith
Ordinary negligence or error of judgment will usually not be enough to show bad faith – especially where an officer has genuinely tried to apply the law.
However, gross negligence, reckless disregard of obvious legal requirements, or deliberate violation of rights may be treated as evidence that the officer was not acting in good faith.
Immunity is a defence to liability, not usually a bar to suing
In Douglas Kipchumba Rutto, the court emphasised that provisions of this type normally do not prevent someone filing a suit, but rather they prevent a finding of personal liability where the person is ultimately found to have acted in good faith. (sheriahub.com ↗)
Applied to your Civil Aviation context, this means:
A KCAA officer who, honestly and reasonably, applies safety rules or makes an operational decision—even if later shown to be mistaken—should be protected from personal liability.
A KCAA officer who abuses their position, acts corruptly, maliciously, or deliberately ignores the law cannot hide behind section 25.
3. How does the split between individual immunity and Authority liability actually work?
Your explanation about compensation and damages is correct, but it is useful to spell out the practical effect:
For affected individuals (claimants):
You are generally expected to claim against the Authority (KCAA) for harm arising from the exercise of its statutory powers – e.g. negligent air navigation services, negligent licensing, faulty infrastructure, etc.
The law ensures you are not left without a remedy:
Even though individual officers may be personally shielded, the Authority itself remains liable in damages under section 25(2). (new.kenyalaw.org ↗)
In some cases, you may name particular officers as defendants, but the court can still hold that only the Authority is ultimately liable if it finds the officers acted in good faith.
For KCAA members, officers, employees and agents:
Protection: As long as they are
Acting within the scope of their powers or duties, and
Acting honestly and for proper purposes,
section 25 acts as a shield from personal civil liability.
No protection where they:
Step completely outside their statutory powers (ultra vires), or
Act with fraud, corruption, malice, or other bad faith.
Relationship with criminal liability and discipline:
Section 25 is drafted in terms of immunity from “action, claim or demand”, which is usually read as referring mainly to civil claims for damages. (new.kenyalaw.org ↗)
It does not bar criminal prosecution for offences such as corruption, fraud, or abuse of office, nor does it stop internal disciplinary measures where warranted.
In other words, an officer could be protected against personal civil damages for a good-faith decision, but still face discipline or prosecution if evidence shows criminal conduct.
4. A refined short summary you can safely use
If you want a polished version of your summary (updated to the current numbering), you could write something like:
Section 25 of the Civil Aviation Act, Cap 394 (Protection from personal liability)
No act or omission by any member of the Board, officer, employee, agent of the Kenya Civil Aviation Authority, or any person acting under their direction, shall render such person personally liable to any action, claim or demand where that act or omission was done in good faith for the purpose of carrying out the Authority’s functions, powers or duties under the Act. This statutory immunity is qualified: it applies only to acts done bona fide and within the scope of official duties. Importantly, the provision does not relieve the Authority itself from liability to pay compensation or damages for loss or injury caused by the exercise of its powers or by failure of its works; the Authority remains answerable in law for such harm.
This captures exactly what you said, but ties it expressly to the current section 25 and uses language close to the statute.
5. How you might deploy this in practice
Depending on what you are doing, you could use the provision as follows:
In a legal opinion
To advise KCAA staff that, “Provided you act within your statutory mandate and in good faith, section 25 of the Civil Aviation Act shields you from personal civil liability; any valid claims will lie against the Authority, not you personally.”
In pleadings against KCAA
To argue that: “By virtue of section 25(2) of the Civil Aviation Act, the 1st Defendant Authority remains liable in damages for the injury caused to the Plaintiff, notwithstanding that its officers acted in good faith and are personally immune from liability.”
In a defence or preliminary objection for an officer sued personally
To plead that: “The 2nd Defendant, being an officer of the 1st Defendant, acted at all material times in good faith in the execution of his statutory duties, and is thereby immune from personal liability under section 25(1) of the Civil Aviation Act, Cap 394.”
If you tell me how you intend to use this summary (court pleadings, legal opinion, training manual, internal policy document, etc.), I can help you tailor the wording and add any needed detail (for example, a short paragraph on burden of proving bad faith, or on vicarious liability).
Answered by mwakili.com