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|Case Number:||Civil Case 56 of 2013|
|Parties:||Maritime Freight Co. Limited v Aya Investments Uganda Limited|
|Date Delivered:||20 Mar 2014|
|Court:||High Court at Mombasa|
|Judge(s):||Mary Muhanji Kasango|
|Citation:||Maritime Freight Co. Limited v Aya Investments Uganda Limited  eKLR|
|Parties Profile:||Corporation v Corporation|
|Case Outcome:||Plaintiff’s application dismissed.|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
HIGH COURT OF KENYA
CIVIL CASE NO. 56 OF 2013
MARITIME FREIGHT CO. LIMITED............................................PLAINTIFF
AYA INVESTMENTS UGANDA LIMITED................................DEFENDANT
REASONS FOR THE RULING
DELIVERED ON 20TH DECEMBER, 2013
The Plaintiff's Case
The Defendant's Case
DISCUSSION OF THE ISSUES
“The Defendant intends to remove its goods from the port for onward transmission to Uganda but can it be said that its intention is to obstruct or delay any decree that may be passed against it?
As pointed out earlier from the word go, parties understood that the contractual obligation thrust on the Plaintiff was to clear the goods for transportation to Uganda. This was even before any misunderstandings arose between them and the charges payable.
The lawful clearing of goods by a recognized agent or authority is a legitimate business or process and it cannot be said to be tantamount to obstructing or delaying a decree and consequently not the mischief contemplated under Order 39 Rule 5 of the Civil Procedure Act.” (emphasis added)
task of clearing the Defendant's containers and has in fact admitted to clearing most of the containers save for the subject three. The Plaintiff was at all material times aware that the goods would be removed to their ultimate destination which in this case was Uganda.
“5. (1) Where at any stage of a suit the court is satisfied, by affidavit or
otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him—
(a) is about to dispose of the whole or any part of his property; or
(b) is about to remove the whole or any part of his property from the local
limits of the jurisdiction of the court, the court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.”
delay...”. Where the Plaintiff was aware that the goods would be transported to Kampala Uganda upon clearance, and the Defendant has taken steps to ensure the goods are transported to their designated destination, then in my opinion, the Plaintiff cannot say that the Defendant had intent to obstruct or delay the ultimate decree.
“5 (2) The plaintiff shall, unless the court otherwise directs, specify the property required to be attached and the estimated value thereof.”
seeking to attach. However, it has not given any value of those containers. This issue was raised by the Defendant's counsel and in response, Mr. Khagram, learned counsel for the Plaintiff referred court to paragraphs 6 and 8 of the Application. With due respect to the Plaintiff's learned counsel, paragraphs 6 and 8 of the Application, if anything, only relate to the quantum of the Plaintiff's claim against the Defendant. They do not give the value of the three containers the subject of the Application. Mr. Khagram also referred the court to page 51-61 of the Plaintiff's bundle of documents in support of the Application to prove that the value of the containers has been given. I have carefully scrutinised those pages and I must say that I cannot see clearly the value of the containers. The closest is page 51 which gives a figure of Dirhams 20,084.00. That figure is not only in some strange foreign currency but also seems to refer to two containers as indicated therein as “BEING 2 CTR NO. INKU 6218347/FCIU 4562156 EXPORT TO UGANDA 14-2-5-13285504”. There is no indication that the Invoice relates to the subject containers.
Muya, J. in the case of Freight Forwarders Kenya Limited quoted before at page 8:
“Secondly, order 39 rule 5(2) requires that the plaintiff unless the court otherwise direct, specify the property required to be attached and estimated value thereof. A perusal of the application shows that this has not been complied with”
satisfied the requirements of Order 39 Rule 5 of the Civil Procedure Rules. For the reasons given above I reiterate the orders made by the Court on 20th December 2013 which were that the Plaintiff’s application dated 14th May 2013 be dismissed and the costs thereof are awarded to the Defendant. The interim orders of attachment be discharged.
DATED and DELIVERED at MOMBASA this 20TH day of MARCH, 2014.