Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd

Court of Appeal, at Mombasa

November 17, 1989

Nyarangi, Masime & Kwach JJ A

Civil Appeal No 50 of 1989

(Appeal from an order of the High Court at Mombasa, Bosire J, in Admiralty Cause No 29 of 1988 dated 28th February, 1989)

Admiralty Law – admirality jurisdiction of the High Court Kenya – circumstances in which the jurisdiction can be invoked – Judicature Act (Cap 8), section 4 – Supreme Court Act, 1981 sections 20, 21.

Admiralty Law – goods supplied to a third party stored in a vessel –whether vessel owner incurs liability for the price of the goods – Supreme Court Act, 1981 sections 20, 21.

Injunction – ex-parte injunction – duty of applicant to make full and frank disclosure of material facts – consequence of non-disclosure of facts.

Caltex Oil, the respondent to this appeal, issued a writ in rem against the motor vessel Lilian S endorsed with a claim for Kshs 6,110,434/55 alleged to be due and owing from the owners of the motor vessel (the appellants).

The claim allegedly arose on account of a quantity of gas oil, fuel and bunkers supplied by Caltex. The writ was accompanied by a statement of claim and an affidavit to lead a warrant for the arrest of the vessel.

In the Bunker Delivery Report (BDR) a company called Southern Oil Supply Company (SOSCO) was named as the local agents for the owners of the ship and a copy of an invoice was directed to SOSCO and duly acknowledged by them as customers.

There was a contract whereby the respondent agreed to supply and SOSCO agreed to buy 550 metric tones of fuel oil and pursuant to that contract the respondent delivered 5, 478.55 metric tones of fuel oil on board the Lilian S as requested by SOSCO as a base for storing the fuel pending the sale and supply to other vessels. On the basis of these facts the ship was on the ex-parte application of Caltex ordered to be arrested.

The appellants being aggrieved applied for the setting aside of the ex-parte order. They contended that the owners of the motor vessel Lilian S,namely sea Guardian Company S.A of Panama, were not persons liable to the plaintiffs in an action in personam and that the persons who would in the circumstances of this care be liable in an action in personam to the plaintiff was SOSCO who were not the owners of the said motor vessel.

It was therefore submitted that as the gas fuel and bunker were not for use by the vessel, the court had no jurisdiction to entertain the application.

The trial court however declined to set aside the ex-parte order holding that from the facts averred an inference could be drawn that the gas oil and fuel was probably for use on the vessel.

Held:

1. Pursuant to section 4 of the Judicature Act (cap 8) of the admiralty jurisdiction of the High Court is exercised in accordance with the same procedure as in the High Court in England. That procedure is contained in the English Supreme Court Act, 1981 and more specifically in sections 20 and 21.

2. In order to maintain an action under section 20 (2) (m) of the 1981 Act, it is necessary to demonstrate a sufficiently direct connection between the agreement relied on and the operation of the ship.

3. The motor vessel was utilized as a base for storing the fuel oil before it was sold to other vessels. There was therefore no reasonably direct connection between the storage of the fuel oil and the operation and maintenance of the vessel.

4. Section 20 (20 (m) of the 1981 Act was not satisfied and so the claim did not fall under section 21(4). The High Court therefore did not have admiralty jurisdiction.

5. A question jurisdiction may be raised by a party or by a court on its own motion must be decided forthwith on the evidence before the court.

6. It is axiomatic that in ex-parte proceedings there should be full and frank disclosure to the court of facts known to the applicant.

7. Failure to make disclosure may result in the discharge of any order made upon ex-parte application.

Appeal allowed.

Cases

1. River Rima, The [1987] 3 All ER 1, CA; (1988) 2 LG Rep 193, HL

2. I Congreso del Partido [1983] 1 AC 244; [1981] 3 WLR 328, HL; [1978] 1 QB 500; [1981] 2 All ER 1064

3. Gatoil International Inc v Arkwright-Boston Manufacturers Mutual Insurance Co & others [1985] AC 255; [1985] 1 All ER 129; [1985] 2WLR 74, HL

4. Evpo Agnic, The [1988] 1 WLR 1090; [1988] 3 All ER 810

5. Brink’s-MAT Ltd v Elcombe & others [1988] 3 All ER 188; [1988] 1WLR 1350 CA

6. “Abidin Daver”, The [1984] 1 Lloyd’s Rep 339; [1984] AC 398; [1984]2 WLR 196, HL

7. Schwarz & Co (Grain) v St Elefterio [1957] 1 Lloyds Rep 283; [1957]2 All ER 374; [1957] 2 WLR 935

8. Moschanthy, The [1971] 1 Lloyd’s Rep 37

9. Gulf Venture, The [1984] 2 Lloyd’s Rep 455

10. Andria, The [1984] QB 477; [1984] 1 All ER 1126; [1984] 2 WLR 570, CA

11. River Jimini, The (29 June 1984, unreported) Rotterdam District Ct

12. Reg v Kensington Income Tax Commissioners ex parte Princess Edmond de Polignac [1917] 1 KB 486 CA

13. Lloyd’s Bowmaker Ltd v Britannia Arrow Holdings PLC (Lavens Third Party) [1988] 3 All ER 178

Texts

1. Saunders, JB (1969) Words and Phrases Legally Defined London: Butterworths 2nd Edn Vol 3 p 113

2. Institute of Chartered Shipbrokers Staff, Shipbrokers Manual LLP Incorporated Vol I page 90 para 3

Statutes

1. Supreme Court Act 1981 [UK] sections 20, 20(1)(a), 20(2)(a-s), 21(4), 21(4)(b)

2. Rules of the Supreme Court 1988 [UK] order 7 rules 5, 5(4), 5(5), 5(9); para 9; order 75 para 75/1/3; order 12 rule 8

3. Administration of Justice Act 1956 [UK] section 3(4)

4. Judicature Act (cap 8) section 4

Advocates

Mr Inamdar for the Appellant.

Mr Satchu for the Respondent.

Makala Mailu Mumende v Nyali Golf & Country Club

Court of Appeal, at Mombasa  

 November 7, 1989

Gachuhi, Nyarangi & Gicheru JJ A

Civil Appeal No 16 of 1989

(An appeal from the Judgment of the High Court at Mombasa, Bosire J, dated 24th November 1988 in Civil Case No 43 of 1988)

Employment Law – duty of employer – duty to make conditions of work for employee safe – failure of employer to provide safe working conditions - liability of employer for damage suffered by employee.

The defendant at the material time had employed the plaintiff as a guard. On employment the plaintiff had been issued with a rungu, a torch and whistle. He had not been provided with a helmet although his trade union had earlier suggested that the plaintiff and his workers be provided with helmets. In the course of his employment with the defendant and while guarding a bar at the Nyali Golf Club he was attacked by a gang of thugs and seriously injured.

Held:

1. It is an implied term of employment that an employer will make the conditions of employment to his employee absolutely safe and will not expose his employees to any danger to avoid any negligence but will not be responsible of the employee’s own negligence in execution of such employment.

2. The employer was aware of the danger that the employee was subjected to and it failed to do what was required of it and for that reason it was negligent.

3. Just because an employee accepts to do a job which happens to be inherently dangerous is no warrant or excuse for the employer to neglect to carry out his side of the bargain and ensure the existence of minimum reasonable measures of protection.

4. In measuring the degree of care one must balance the risk against the measures necessary to eliminate the risk.

Appeal allowed.

Cases

1. Harris v Brights Asphalt Contractors Ltd [1953] 1 QB 617; [1953] 1 All ER 395; [1953] 1 WLR 341

2. Smith v Baker & Sons [1891] AC 325; [1891-4] All ER Rep 69; LJ QB 683; 65 LT 467

3. Wilsons and Clyde Coal Co Ltd v English [1938] AC 57; 101 SJ 670; [1937] 3 All ER 628

4. Watt v Hertfordshire County Council [1954] 2 All ER 368; [1954] 1 WLR 835; 98 SJ 372; 104 LJ 503

Texts

Hailsham, Lord et al (eds) (1976) Halsbury’s Laws of England London: Butterworths 4th Edn Vol XVI

Statutes

Judicature Act (cap 8) section 3(2)

Kambi & 3 others v Republic

Court of Appeal, at Mombasa

 May 8, 1980

Madan, Law & Potter JJ A

Criminal Appeal No 60 of 1979

(Appeal from a conviction and sentence of the High Court at Mombasa (Simpson J) in Criminal Case No 27 of 1979 dated 4th September 1979)

Criminal Law – principal and secondary offenders – accomplice and accessory after the fact – whether an accessory after the fact is necessarily an accomplice – witness taking no steps to prevent commission of offence and failing to report its commission – witness hiding weapon used to commit crime and partaking of the proceeds of the crime – whether such witness an accomplice.

The appellants were tried by High Court and convicted of murder. They were alleged to have killed two men and to have stolen their money which they later shared among themselves.

About one month after the incident the 4th appellant told the villagers about the incident prompting his arrest by an askari under the local subchief.

The 4th appellant led the askari to a forest where he showed him human remains. The police were consequently informed and re-arrested the 4th appellant who gave information leading to the arrest of the other appellants.

All the appellants made statements in the nature of confessions admitting the commission of the offence.

It was alleged that although one of the prosecution witnesses, Kalume was given the money taken from the victims he was not involved in the killings.

In convicting the appellants the High Court declined to hold Kalume as an accomplice because he had accepted the money under the fear of an oath administered to him by the 4th appellant.

Held:

1. The trial judge omitted to mention that after the murder, Kalume hid a blood-stained panga which had been used to kill the victims and that although he had foreknowledge of the intended crime and knowledge after its commission, he had taken no steps to prevent its commission

or to give information to the authorities that it had been committed.

2. Kalume was clearly an accessory after the fact. The mere fact of being an accomplice after the fact does not necessarily make a person an accomplice but in this case, Kalume had foreknowledge and he had accepted part of the proceeds of the crime.

3. The appellants were properly and rightly convicted.

Appeals dismissed.

Cases

1. R v Nanta s/o Ndimi 11 EACA 83

2. R v Kinyangabwaru s/o Matasa (1942) 9 EACA 90

3. Bassan and Kiambu v R [1961] EA 521

Statutes

No statutes referred.

Advocates

Mr Wa Hare for the Appellant.