REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

ADMIRALTY CLAIM NO. 1 OF 2018

SHIPMARC AGENCY & LOGISTICS LIMITED.....................................PLAINTIFF

-VERSUS-

THE OWNERS OF MOTOR VESSEL “TANYA”...................................DEFENDANT

RULING

[1] This ruling is in respect of the claimant’s Application Notice dated 13^th October 2021. The said application was brought pursuant to the provisions of Section 1A, 1B & 3A of the Civil Procedure Act of Kenya; RSC Part 40.8A and Part 61.12 of the Civil Procedure Rules of England & Wales; Order 22 Rules 22(1), (2) and (3); and Rule 25; as well as Order 42 Rule 6 of the Civil Procedure Rules, 2010. The claimant/applicant (hereinafter, “the applicant”) thereby seeks that:

[a]    Spent;

[b]    Spent;

[c]    the Court be pleased to set aside and/or vary the Orders of the Court delivered on 25^th January 2019 as it relates to the award of costs to the defendant/respondent herein to the extent that there should be no order as to costs;

[d]    the Court be pleased to set aside all execution proceedings consequent to the Orders delivered by the Court (Hon. P.J. Otieno, J.) on 25^th January 2019 including decrees, taxation proceedings and warrants of attachment and sale and proclamation of attachment thereto;

[e]    in the alternative, the Court be pleased to stay execution of the Orders delivered on 25^th January 2019 and all subsequent proceedings therefrom pending the hearing and determination of Admiralty Claim No. 3 of 2020 involving both parties herein and the subject matter herein, pending the intended appeal;

[f]     the Court do give directions as to service of the application and/or for service of any interim orders granted herein.

[g]    Costs of the application be provided for.

[2]    The application was premised on the grounds that MV TANYA had been docked at the applicant’s berth in the Mombasa Port for almost three years; and was still at the applicant’s berth at Mombasa Port prior to its arrest in respect of High Court Admiralty Claim No. 3 of 2020. It was further asserted that the vessel has been steadily deteriorating while its owner neglects to pay sums due for the services provided to the vessel, amounting to USD 293,881.62 as at the time of filing this claim; which amount had risen to USD 728,745.01 as of the time Admiralty Claim No. 3 of 2020 was filed.

[3]    It was further contended that, since the ruling dated 29^th January 2019 dismissing this claim, the applicant has continued to maintain and secure the vessel at its own cost; and has also been the subject of legal enquiries from the Kenya Maritime Authority regarding the state and safety of the vessel as it continues to be berthed at the applicant’s property within the jurisdiction of the Kenya Maritime Authority. The applicant further stated that it has been served with a Warrant of Attachment of Movable Property and a Warrant of Sale of Property both dated 4^th October 2021; as well as a Notice of Proclamation of Attachment dated 7^th October 2021.

[4]    The applicant expressed concern that, since the vessel is the respondent’s only known asset in the Kenyan jurisdiction, proceeding with execution against it in respect of the respondent’s Party & Party Bill of Costs while Admiralty Claim No. 3 of 2020 is pending will indescribably prejudice the applicant and render the intended appeal nugatory.

[5]    The grounds aforementioned have been adverted to in the applicant’s affidavit, sworn by Kailesh Chauhan, the Managing Director of the applicant. He attached the ruling dated 25^th January 2019 as well as copies of the Warrant of Attachment of Movable Property, Warrant of Sale of Movable Property, Proclamation of Attachment and correspondence from the Kenya Maritime Authority. Mr. Chauhan appears to be exasperated at the fact that; while the respondent has exhibited no intention to pay the applicant for services rendered to the vessel, it now wants the vessel sold to recover the costs awarded to it. He added that the applicant is ready and willing to deposit reasonable security for costs and/or upon such terms and conditions as the Court shall think fit to impose.

[6]    In response to the application, Mr. Omollo filed a Replying Affidavit sworn by him on 28^th October 2021 behalf of the respondent. He averred that the intended appeal from Admiralty Cause No. 3 of 2020 has no bearing in this matter; and that the Court has no jurisdiction to grant stay in the manner sought by the applicant. It was further deposed by Mr. Omollo that Admiralty Claim No. 3 of 2020 is not pending; the same having been struck out by the Court (Hon. Chepkwony, J.) on 24^th September 2021. He added that there is no justification therefore why, the respondent, as a successful litigant should be denied the fruits of the litigation.

[7]    In addition to the Replying Affidavit, Mr. Omollo filed Notice of Preliminary Objection dated 28^th October 2021; thereby giving notice that he would raise a preliminary objection to the application dated 13^th October 2021 on the following two grounds:

[a]    That this Court has no jurisdiction to order a stay of execution of the decree because the applicant intends to file an appeal in a different case; being Admiralty Claim No. 3 of 2020; and,

[b]    That this Court lacks jurisdiction to set aside or revise the orders given by Hon. P.J. Otieno, J., as to do so would be tantamount to the Court sitting on appeal in respect of the said orders.

[8]    The application was canvassed by way of written submissions, pursuant to the directions given herein on 1 November 2021. It was further directed that the Preliminary Objection be argued together with the application. Accordingly, Mr. Asige, learned counsel for the applicant filed his written submissions dated 15^th November 2021 on 16^th November 2021; while Mr. Omollo relied on his written submissions dated 26^th November 2021.

[9]    On the issue of jurisdiction, Mr. Omollo drew the attention of the Court to paragraph 20 of the Supporting Affidavit, which he quoted verbatim in his written submissions and argued that the Court lacks the jurisdiction to set aside or vary the orders made on 25^th January 2019 by Hon. P.J.O. Otieno, J. as that would be tantamount to this Court sitting on appeal over the decision of a judge of concurrent jurisdiction. Counsel further relied on Section 27 of the Civil Procedure Act and Mbogo v Shah [1968] EA 93 in defending the impugned decision; arguing that the judge properly exercised his judicial discretion in awarding the respondent costs of the suit upon striking it out for want of jurisdiction.

[10]  Regarding the 2^nd limb of the Preliminary Objection, Mr. Omollo pointed out that, since the Notice of Appeal shows that the intended appeal emanates from Admiralty Cause No. 3 of 2020, it would be anomalous for stay to be sought in a totally different suit as the applicant has done herein. He consequently urged that the Preliminary Objection be upheld; and that the application be struck out forthwith.

[11]  In response to the Preliminary Objection, Mr. Asige took the stance that the applicant had completely misapprehended the application and taken s superficial approach to it. According to him Section 22 Rule 25 of the Civil Procedure Rules gives the Court the jurisdiction to say execution pending the hearing and determination of a suit between the parties; and therefore that, there is nothing improper about a stay order being granted in this suit pending the determination of Admiralty Claim No. 3 of 2020 as well as the intended appeal.

[12]  In the second limb of the application, counsel submitted that the application has also been brought pursuant to Rule 83.7(1) RSC Civil Procedure Rules of England and Wales on the ground that new developments have emerged since the 25^th January 2019 when the subject ruling was delivered; particularly the fact that the defendant continues to enjoy the applicant’s berth and its services free of charge; and yet would like to execute for costs against the vessel. Counsel relied on the English case of Hussain & Another v Ahmed and Another [2021] EWHC 2213 (Ch) to support his argument that stay of execution would be a fitting and just relief to the applicant, considering the unique factors herein, and what he referred to as the inexcusable conduct of the respondent.

[13]  From the foregoing, it is manifest that the Preliminary Objection is inextricably intertwined with the contention that there exists another case; being Admiralty Claim No. 3 of 2020; which claim has been struck out. From the approach taken by the applicant, this is not an agreed issue. Indeed, the applicant’s case is hinged on the fact that Admiralty Claim No. 3 of 2020 is pending. It was on this account that Mr. Omollo deemed it necessary to annex a copy of the ruling in Admiralty Claim No. 3 of 2020 to demonstrate his assertions. Moreover, Mr. Omollo made reference to a Notice of Appeal that has been lodged in connection with Admiralty Claim No. 3 of 2020. Such a notice can only be found in that other file and, therefore, for purposes of this claim, its existence or otherwise would require proof. From my scrutiny of the documents filed in respect of the instant application, there is no such notice. I also note that counsel hinged his arguments on paragraph 20 of the application’s Supporting Affidavit to demonstrate that the applicant’s grievance is confined to the award of costs. It is manifest therefore that the Preliminary Objection raises contested facts and unproven allegations that would require investigation by the Court; yet a preliminary point must be confined to pure points of law. In Mukisa Biscuits Manufacturers Ltd v West End Distributors Ltd [1969] EA 696, it was stated that a preliminary objection consists of:

“…a pure point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary objection may dispose of the suit. Examples are an objection to the jurisdiction of   the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit, to refer the dispute to arbitration.”

[14]  Accordingly, where factual details are to be gleaned from affidavits to prove a point, as the Court has been asked to do in this case, such a point cannot qualify for consideration as a preliminary objection. I am therefore in agreement with the expressions of Hon. Ojwang, J. (as he then was) in Oraro vs. Mbaja [2005] 1 KLR 141 that:

"...The principle is abundantly clear. A "preliminary objection" correctly understood, is now well defined as, and declared to be, a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion, which claims to be a   preliminary objection, yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection which the court should allow to proceed...Where a court needs to investigate facts, a matter cannot be      raised as a preliminary point...Anything that purports to be a preliminary objection must not deal with disputed facts, and it must not itself derive its foundation from factual information which stands to be tested by normal rules of evidence..."

[15]  Thus, without further ado, I would dismiss the respondent’s Preliminary Objection and proceed to consider the application dated 13^th October 2021 on its merits.

[16]  In urging the application, Mr. Asige relied on Order 22 Rule 22(1), (2) and (3) of the Kenyan Civil Procedure Rules as well as the RSC Civil Procedure Rules of England, particularly Part 40.8A and 61.12 on stay of execution; and urged the Court to find that the applicant has met the requirements set out in those provisions. Counsel was of the posturing that it would be a gross miscarriage of justice for the Court not to grant the prayers sought by the applicant.

[17]  Mr. Asige further submitted that the applicant has already commenced the Taxation Reference process by writing to the Deputy Registrar seeking to be provided with reasons for taxation, pursuant to Paragraph 11(1) and (2) of the Advocates (Remuneration) Order; and is awaiting a response from the Deputy Registrar. Thus, counsel urged the Court to exercise its discretion in the interests of justice by setting aside the order for costs in the ruling dated 25^th January 2019, together with all subsequent execution proceedings. In the alternative, he proposed that Admiralty Claim No. 3 of 2020 be treated as constituting matters which have occurred since the date of the order; and therefore warranting the issuance of an order of stay of execution.

[18]  Mr. Omollo was of a contrary stance. He submitted that the application is incompetent for having been made under Order 22 Rule 22(1), (2) and (3) of the Civil Procedure Rules, yet the rule applies to situations where a decree of one court has been sent to another court for execution. Moreover, he argued, Rule 22(2) and (3) relates to restitution of property that has been seized, which is not the case here. As for the applicability of Order 22 Rule 25, Mr. Omollo pointed out that there is no suit pending between the applicant and the respondent, granted that Admiralty Claim No. 3 of 2020 was likewise struck out vide a ruling dated 29^th September 2021. He annexed a copy of the ruling to his Supporting Affidavit to augment his arguments.

[19]  Mr. Omollo further submitted that Order 42 Rule 6 of the Civil Procedure Rules is similarly irrelevant as there is no appeal from the ruling and order given herein by Hon. P.J.O Otieno, J. on 25^th January 2019. Thus, Mr. Omollo posited that it is a ridiculous proposition that a party can avoid paying the costs of a suit it has lost by simply filing another case and asking the Court to stay execution for costs. He therefore urged the Court to dismiss the application dated 13^th October 2021.

[20]  I have given careful consideration to the application and the averments set out in the affidavits filed by the parties. I have likewise perused and appreciated the arguments advanced by learned counsel in their written submissions as well as the pleadings and proceedings to date. The record confirms that this claim was brought on 14^th March 2018 by the applicant. It was a claim for an amount of USD 293,881.62 in respect of goods supplied and services rendered to Motor Vessel “TANYA”, including towage, operation and maintenance. As the claim was filed under a Certificate of Urgency, a warrant of arrest was immediately issued in respect of the vessel. Thereafter, the respondent filed an application challenging the jurisdiction of the court. The culmination of that application was the impugned ruling dated 25^th January 2019. The Court (Hon. Otieno, J.) held that:

“Now that the documents filed by both sides displace assertion of Mr. Benda’s ownership, it follows that the jurisdiction was not properly invoked and the ensuing warrant of arrest was erroneously issued and that error must be corrected by setting the warrants aside and the claim being unfounded for that reason ought to be dismissed. I do set aside the warrants of arrest dated 14/3/2018 and order that the claim form be dismissed with costs to the defendant.”

[21]  It is further evident from the averments set out in the parties’ affidavits that, after the dismissal of this claim, the applicant filed Admiralty Claim No. 3 of 2020 and cited Benmar Marine Limited as the person in charge of the vessel who would otherwise be liable in an action in personam. An objection was similarly raised in that suit, both on the ground of res judicata and on whether an arguable case had been made out against the defendant. While dismissing the res judicata argument, the Court (Hon. Chepkwony, J.) took the view that:

“...the Claimant has no case to proceed against the Motor Vessel “Tanya” in rem on the basis of the agreements in the email correspondences between itself and Yoni Bendas and the claim is eligible to struck out.

For those reasons, the following orders do issue:

a) An order does and is hereby issued striking out the Claimant’s Claim as is in the claim form filed on 3^rd September, 2020.

b) An order does and is hereby issued setting aside the warrants of arrest dated 3^rd September, 2020.

c) The Defendant is awarded costs of this matter...”

[22]  The decision was delivered on 24^th September 2021; and about two weeks later, the applicant filed the instant application seeking either the setting aside of the dismissal order made herein or stay of execution pending appeal in Admiralty Claim No. 3 of 2020. In the written submissions filed on behalf of the application, Mr. Asige confined himself to the stay aspect of the application and did not address the Court on the limb for setting aside. I therefore presume that the prayer for setting aside was hinged on the provisions of Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules; because this Court would otherwise have no jurisdiction to entertain such an application.

[23]  Section 80 of the Civil Procedure Act provides that

 “Any person who considers himself aggrieved--

 (a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or

(b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed   the decree or made the order, and the court may make such   order thereon as it thinks fit.”

[24]  Order 45 Rule 1 of the Civil Procedure Rules, on the other hand provides that:

 “(1) any person considering himself aggrieved-

(a)  by a decree or order from which an appeal is allowed but from which no appeal has been preferred, or

(b) by a decree or order from which no appeal is hereby allowed and who from the discovery of new and important matter or evidence which after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.”

[25]  Needless to say therefore that a party seeking review is under obligation to demonstrate that:

[a]    there has been discovery of new and important matter or evidence which after due diligence, was not within the applicant's knowledge or could not be produced at that time;

[b]    there is some mistake or error apparent on the face of the record; or

 [c]    that there was any other sufficient reason; and

[d]    that the application had been brought without unreasonable delay.

[26]  As indicated herein above, Mr. Asige did not, in his submissions specifically furnish the Court with reasons for setting aside the ruling and orders made herein on 25^th January 2019, notwithstanding that a copy thereof was annexed to the applicant’s Supporting Affidavit. It was not alleged that there is an error apparent on the face of the ruling; or that there has since been discovery of a new and important matter to warrant review and setting aside of the ruling and orders flowing therefrom. Indeed, it appears that it was upon a conviction that the decision was sound that the applicant moved on and filed Admiralty Claim No. 3 of 2020. And, as it was not said that there is sufficient cause for review, I find no reason to interfere with the ruling and orders made herein on 25^th January 2019. Consequently, I find no merit in that limb of the application.

[27]  The applicant also prayed for stay of execution for costs pending the hearing and determination of Admiralty Claim No. 3 of 2020. The application was expressed to have been brought under Order 22 Rule 22(1), (2) and (3) and Order 42 Rule 6 of the Kenyan Civil Procedure Rules; both of which are irrelevant to the instant application. Order 22 Rule 22(1) provides for situations in which a decree has been sent to another court for execution. This is not so herein. Order 22 Rule 22(2) and (3) provides for restitution of property and therefore has no relevance to the application at hand. Similarly, Order 42 Rule 6 of the Civil Procedure Rules is inapplicable, seeing as there is no appeal filed or intended from the ruling dated 25^th January 2019.

[28]  In his written submissions, Mr. Asige made reference to Order 22 Rule 25 of the Civil Procedure Rules and urged the Court to find that therein lies the jurisdiction for stay. That provision reads:

“Where a suit is pending in any court against the holder of a decree of such court in the name of the person against whom the decree was passed, the court may, on such terms as to security or otherwise, as it thinks fit, stay execution of the decree until the pending suit has been decided.”

[29]  In the same vein the RSC Civil Procedure Rules of England, imported by dint of Section 4(20) of the Judicature Act, Chapter 8 of the Laws of Kenya stipulates as hereunder in Part 40.8A:

“Without prejudice to rule 83.7(1), a party against whom a judgment has been given or an order made may apply to the court for—

(a)     A stay of execution of the judgment or order; or

(b)    Other relief,

On the ground of matters which have occurred since the date of the judgment or order, and the court may by order grant such relief, and on such terms, as it thinks just.”

[30]  Mr. Asige’s justification for invoking the two provisions aforementioned was that there is a suit pending between the parties; namely, Admiralty Claim No. 3 of 2020. Hence, at page 5 of his submissions, Mr. Asige presented the following arguments:

“...1) matters have occurred since the date of the Ruling of Mr. Justice P.J.O Otieno delivered on 25^th January 2019, namely the institution of the HCC Admiralty Claim No. 3 of 2020 seeking accruing unpaid charges and other costs; 2) The Defendant has not concerned itself to Release the MV Tanya since the aforementioned date and continues to enjoy the berthage and security provided by the Claimant Applicant with impunity at no extra cost or expense to itself; and 3) it is clear from the aforementioned matters that to allow the Defendant to proceed to execute costs while it has enjoyed the benefits of the Claimant’s berthage would not only be an egregious affront to justice but also a gross abuse of the Honourable Court’s process...”

[31]  In support of his stance, Mr. Asige relied on the English case of Hussain & Another v Ahmed & Another (supra) in which the power to stay execution for purposes of CPR 40.8A and 83.7 was discussed. This brings us to the question whether indeed such matters have occurred since the 25^th January 2019 as would warrant stay. In this regard, the applicant relied on the assertion that after the impugned ruling, the applicant filed another suit, namely, Admiralty Claim No. 3 of 2020, which is still pending. It has however been proved by Mr. Omollo, vide his Replying Affidavit filed herein on 28^th October 2021, that the suit had already been struck out by the time the instant application was filed. A copy of the ruling in that matter, dated 24^th September 2021, was annexed to Mr. Omollo’s affidavit; and it confirms that indeed Admiralty Claim No. 3 of 2020 is no longer pending.

[32]  It is not altogether clear whether a Notice of Appeal has been filed in that matter, as no such notice was exhibited herein; but even if it was, such a notice would only serve as a valid ground for stay in Admiralty Claim No. 3 of 2020 and not in this claim.

[33]  Mr. Asige also indicated that the applicant has already commenced the Taxation Reference process by writing to the Deputy Registrar seeking to be provided with reasons for taxation, pursuant to Paragraph 11(1) and (2) of the Advocates (Remuneration) Order; and is awaiting a response from the Deputy Registrar. This was given as an additional reason for stay of execution. I note however that no such correspondence appears on the court record; and is neither on the file nor annexed to the Supporting Affidavit.

[34]  In the result, I find no merit in the application dated 13^th October 2021. Accordingly, the said application is hereby dismissed with costs.

It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 21^ST DAY OF MARCH 2022.

____________

OLGA SEWE

JUDGE