The Admiralty Marshal of the High Court of Kenya Re-Advertises the Sale of the Fishing Vessel FV RA ‘Horakhty’

The Admiralty of the High Court of Kenya at Mombasa re-advertised the sale of the Fishing Vessel FV ‘RA Horakhty’. Interested buyers can place their bids on the address shown in the advertisement and can obtain the conditions of sale from the law firm of Okello Kinyanjui and Company LLP at the address and email shown on the advertisement. Interested buyers are strongly advised to obtain the conditions of sale before preparing and placing their bids.

The advertisement can be viewed in the Standard Newspaper and can also be found on the following link, i.e., http://www.okadvocates.com/blog/wp-content/uploads/2022/05/20220513_STDN_COAST_MR_COAST_STD39.pdf

ADMIRALTY COURT SALE BY ORDER OF THE ADMIRALTY MARSHAL OF THE HIGH COURT OF KENYA, MOMBASA – FISHING VESSEL FV ‘RA HORAKHTY’

NOTICE is hereby given that the fishing vessel FV ‘RA Horakhty’ under certificate of registry number 101243 and IMO number 8805298, Gross Tonnage – 622, length 49.91 metres which is lying at Liwatoni in Mombasa and will be sold by auction in the condition ‘AS IS WHERE IS’ at the time of sale.

THE FISHING VESSEL FV ‘RA HORAKHTY’ IS LYING IN MOMBASA, KENYA

__________________

All offers on the Mombasa Admiralty Marshal’s Conditions of Sale by latest noon 19th April, 2022

____________________

The above particulars are given in good faith but no responsibility can be accepted for their accuracy. Purchasers must make their own enquiries.

                                                                     ___________________________

For permits to view, Conditions of Sale, etc please apply to:

Okello Kinyanjui & Company Advocates,

White House Plaza, 1st Floor Suite No.1,

Tangana Road, off Sauti ya Kenya Road,

(Near Kilindini/Ganjoni Post Office),

P.O. Box 94084,

MOMBASA – 80107 Email: info@okadvocates.com

The advert can be found here http://www.okadvocates.com/blog/wp-content/uploads/2022/04/106.1.1-20220413_STDN_COAST_MR_COAST_STD39.pdf

Supreme Court delivers its ruling on the Building Bridges Initiative case

The Supreme Court has just delivered its ruling on the Building Bridges Initiative (BBI) case. The important issues delineated by the court were whether the basic structure doctrine was applicable in Kenya, whether the President initiated the BBI popular initiative, whether the proposal for the creation of the 70 constituencies was constitutional, whether the president can be sued in his personal capacity while in office, whether there was sufficient public participation, whether the Independent Electoral and Boundary Commission (IEBC) had a requisite quorum to verify signatures and whether the referendum question was ripe for determination.

The Supreme Court decided as follows:

  1. The basic structure doctrine is not applicable in Kenya.
  2. The President initiated the BBI popular initiative.
  3. The proposal for the creation of the 70 constituencies was unconstitutional.
  4. The President cannot be sued in his/her personal capacity while in office.
  5. There was no sufficient public participation.
  6. IEBC had the requisite quorum.
  7. The issue on referendum questions is not ripe for determination.

Our comments on the three issues that are of importance in our view are as follows:

The ruling was quite sound. The basic structure doctrine is not supported anywhere in the Constitution of Kenya and the Supreme Court has reiterated that doctrines cannot override the Constitution of Kenya.

It is clear that the President initiated the BBI popular initiative. We think that the intention of the drafters was that the popular initiative for Constitutional amendment should be initiated by non-Governmental citizens.

The practice of couching suits as suits against the President has been stopped in its tracks. Article 143 (2) of the Constitution states quite clearly that “civil proceedings shall not be instituted in any court against the President or the person performing the functions of that office during their tenure of office in respect of anything done or not done in the exercise of their powers under this Constitution.” Any attempt to defeat this position is judicial craft and activism and the Supreme Court has correctly nipped this in the bud. Recent trends in which suits against the President appear to have been allowed are dangerous trends that would allow the judiciary to indirectly exercise executive functions. In the words of the US Supreme Court in Mississippi vs. Johnson 71 U.S. 475, “An attempt on the part of the judicial department of the government to enforce the performance of such duties by the President might be justly characterized, in the language of Chief Justice Marshal, as ‘an absurd and excessive extravagance’.”

The decision is available here http://www.okadvocates.com/blog/wp-content/uploads/2022/04/The-Hon-Attorney-General-and-ors.-vs.-David-Ndii-and-ors.pdf

Sixteen abandoned seafarers get reprieve in Kenya

Sixteen seafarers (the claimants) from South Korea, Indonesia and Vietnam were engaged upon a Kenyan registered fishing the FV RA Horakhty (the vessel) on various contracts. However, by October, 2021 they had not received their wages from as far back as March 2021, forcing them to institute an admiralty claim against the owners of the vessel for USD247,255 for wages upto October, 2021, the captain’s disbursements and the repatriation costs. The crew also filed a claim for their wages from the date of filing the claim to the date of selling the vessel and the costs of the claim. On all the above claims the crew also added interest. For whatever reason, the owners of the vessel filed a defence against the claim firstly, denying that they owed the crew the amounts claimed, secondly alleging that the Captain of the vessel, the owner of the vessel and the Kenya Maritime Authority had made a resolution to vary the crew salaries because of difficulties the owner was having in paying the amounts and thirdly raising some legal issues as to whether the crew could claim repatriation costs and whether the captain could claim disbursements. The crew responded by filing a reply to defence stating that there was no variation of the salaries and in any event the law, particularly the Constitution of Kenya, the Merchant Shipping Act, 2009 and the Maritime Labour Convention, 2006 (MLC) did not allow for such a variation, secondly emphasizing that since Kenya was a party to the MLC which by virtue of the article 2 (6) of the Constitution of Kenya was part of the law of Kenya, repatriation costs were payable under the MLC, section 105 (1) (a) of the Merchant Shipping Act, 2009 and article 19 (3) (b) and 41 of the Constitution of the Republic of Kenya and thirdly that the legal issues raised by the defendant were non-issues. The crew also filed an application to strike out the defendant’s defence.

Upon the application to strike out the defence coming up for mention on 29th December, 2021 the defendant agreed to pay the claimants, within 14 days, an agreed sum of over USD.311,000 failure to which the claimants would proceed with their application to strike out the defence. The 14 days lapsed on the 12th of January, 2022 and the application to strike out the defence was set for hearing on the 7th of February, 2022. At the hearing of the said application the defendant and the claimants entered into a consent that judgment be entered in favour of the claimants against the defendant as requested in the claimant’s claim form and that if the defendant failed to pay the amount due and owing to the crew the crew would be at liberty to sell the vessel. Because of the time that has elapsed, the claimants claim is well over USD.400,000. The advocates representing the successful claimants are Okello Kinyanjui and Company LLP.

Comments

Since it was a consent judgment there will be no discussion of any legal issues resolved by the court.

However it is important to note that Kenya, being a party to the MLC, has by article 2 (6) of the Constitution, made the MLC a part of Kenyan law. The MLC is an instrument created to, among other things, protect the fundamental right of seafarers. Being an instrument to protect the rights of seafarers, the provisions of the MLC are, by virtue of article 19 (3) (b) of the Constitution, recognized as rights because they are not inconsistent with any provision of the Constitution particularly article 41 of the Constitution. Thus, Kenyan courts have a duty to protect seafarers’ rights which in the context of this case were the following:

1. Regular payment of wages to seafarers in full in accordance with their employment agreements (Regulation 2.2 (1) and Standard A2.2 of the MLC as read with article 19 (3) (b) of the Constitution)

2. Captain’s disbursements (Section 105 (1) of the Merchant Shipping Act, 2009 as read with article 19 (3) (b) of the Constitution)

3. Repatriation costs (Regulation 2.5 and Standard A2.5 of the MLC as read with article 19 (3) (b) of the Constitution)

Further, the MLC is a developing document and has undergone various amendments from the time of its adoption in 2006 and its coming into force on the 20th of August, 2013. Very crucial in these amendment are the 2014 amendments, which came into force on 18th January, 2017. The amendments require, inter-alia, that an expeditious and effective financial security system be put in place to ensure that shipowners provide compensation to seafarers and their families in the event of abandonment, death or long-term disability due to an occupational injury, illness or hazard. Up to the time the claimants had filed their claim, Kenya has not made a declaration of acceptance of the said amendments. It is important for nations to accept the 2014 amendments because abandonment insurance can mean the difference between a shipowner losing his ship at a ship auction brought about by judgment entered against the said shipowner and more importantly will encourage the early payment of abandoned seafarer claims. Indeed, had Kenya accepted the 2014 amendments earlier, it is possible that the claimants may not have stayed so long on board the vessel waiting for the judicial process to unfold.

However, the following challenges to the implementation of the financial security requirements brought by the 2014 amendments, seem to have emerged and have been identified globally, i.e.

1. Insufficient mechanisms in place to ensure that vessels cannot trade without valid abandonment insurance.

2. Whilst the definition of abandonment is quite clear, the circumstances surrounding abandonment and the relationships between flag States, shipowners, their insurers and other entities with a commercial interest in the vessel, are extremely varied.

3. While in a number of cases, P&I Clubs have responded promptly to applications and discharged their obligations as intended in others they have not responded.

It would seem to us that the identified challenges can be met in the following ways, i.e.

1. The challenge of insufficient mechanisms in place to ensure that vessels cannot trade without valid abandonment insurance can be met by accepting the 2014 amendments and having laws in place to ensure that ships have valid insurance. Kenya has a law to ensure that ships have valid insurance, i.e., section 15 of the Merchant Shipping Act, 2009.

2. With regard to the challenge of the varied circumstances surrounding abandonment and the relationships between flag States, shipowners, their insurers and other entities with a commercial interest in the vessel, are extremely varied it would seem that while accepting the 2014 amendments, countries should develop regulations that clarify the said varied circumstances. If Kenya were to accept the 2014 amendments, it should follow that with the development of regulations to clarify the varied circumstances.

3. With regard to the P&I Clubs that not responded promptly to applications and discharged their obligations as intended, it is imperative for Kenya, before accepting the 2014 amendments to find out from the relevant international bodies such as the International Transport Federation (ITF), which P&I Clubs have not responded as intended and black-list the same for ships flagged in Kenya.

Happily though, Kenya on the 4th of February, 2022, has submitted a notification of acceptance of the 2014 amendments and the said amendments should come into force for Kenya on the 4th of August, 2022. This is significant for Kenya and will enhance the protection of seafarers on Kenyan flagged ships and other ships that are within Kenya’s territory.

Courts have no jurisdiction where the cause of action arose in a foreign nation

Summary

In this rather interesting case, the High Court quashed the decision of the Mombasa Magistrate Court in which the said magistrate court purported to confer jurisdiction on itself in a matter whose cause of action arose in a foreign nation. The advocates for the successful applicant was Okello Kinyanjui and Company LLP.

Introduction and background

On or about the 19th January 2019, a motor vehicle Registration number KBZ 892 W belonging to Kyoga Hauliers Ltd. (the interested party) and trailer Registration number ZC 8785 also belongin to the interested party were allegedly crushed by motor vehicle KBQ 998 R and trailer number ZD 9158 belonging to Absin Synergy Ltd. (the applicant) at Butisema in the Republic of Uganda as a consequence of which the interested party’s vehicle was alleged to have been damaged. By a plaint dated 20th September 2019, the interested party sued the applicant at the Chief Magistrates court at Mombasa (the respondent seeking recovery of special damages allegedly arising from the said accident plus costs of the suit and interests. However, on 9th December 2019, the applicant herein filed a Notice of a Preliminary Objection objecting to the respondent’s jurisdiction to entertain the case on grounds that the cause of action arose in the Republic of Uganda, outside the respondent’s jurisdiction, and urging that should the court find it had jurisdiction, the Kenyan court was not the convenient place to sue under what the applicant described as “the doctrine of forum non conveniens.”

By a ruling rendered dated 4th June 2021, the respondent dismissed the preliminary objection arguing that under section 14 of the Civil Procedure Act (the CPA), the interested party may opt to bring its suit either in the court within whose local limits the cause of action arose or the court within whose jurisdiction the defendant resides or carries on business. The respondent stated that there was no dispute that the applicant resides or carries on business within the jurisdiction of the respondent and held that the respondent was vested with jurisdiction.

Aggrieved by the said decision, the applicant pursuant to this court’s leave granted on 14th July 2021 sought an order of certiorari to quash the said ruling. It also prayed for costs of the application. In support of the application, the applicant stated that the respondent failed to appreciate the import of section 14 of the CPA and the fact that the court cannot have jurisdiction where the cause of action arises in a foreign country. It argued that the court illegally assumed jurisdiction in breach of articles 1 and 2 of the Constitution and section 14 of the CPA, and that it would suffer prejudice if the respondent heard the case. The respondent did not file any response or submissions nor did it participate in these proceedings despite being served.

The interested party by the replying affidavit of a one Samson Dola, its insurance officer dated 4th October 2021 opposed the application. The key points in its opposition were:-

  • the applicant is a company incorporated in Kenya having its offices at Mombasa which is in line with section 14 of the CPA;
  • that both parties are Kenyans;
  • that the law does not permit filing suits in a foreign country;
  • that since the applicant contends that the respondent misapprehended the law, its remedy lies in an appeal against the said decision.

Ruling

  • The court started by stating that no court can proceed with a matter if it does not have jurisdiction to do so.
  • The court noted that the term jurisdiction has been demarcated in three categories, namely;
  • subject matter jurisdiction, i.e., whether the particular court in question has the jurisdiction to deal with the subject matter in question;
  • territorial jurisdiction, i.e., whether the court can decide upon matters within the territory or area where the cause of action arose; and
  • pecuniary jurisdiction i.e., whether the court can hear a suit of the value of the suit in question. These three categories of jurisdiction are prerequisite to the assumption of a court’s jurisdiction, a sine qua non. The absence of any of these three is sufficient to extinguish a court’s jurisdiction or invalidate the proceedings.
  • Section 5 of the CPA deals with the aspect of jurisdiction of civil courts in Kenya and it provides that any court shall, subject to the provisions contained in the CPA, have jurisdiction to try all suits of a civil nature excepting suits of which its cognizance is either expressly or impliedly barred.
  • The civil court has jurisdiction to try a suit if the following two conditions are fulfilled:
  • The suit must be of civil nature;
  • The cognizance of such a suit should not be barred expressly or impliedly.
  • Strictly, a suit is only effective if the court has jurisdiction to adjudicate the issues raised in the suit.
  • Importantly, and highly relevant to this case, jurisdiction of the court does not extend into a foreign country. It refers to the local area upon which its jurisdiction extends within the Republic of Kenya.
  • The court perceived that the application stood or fell on the provisions of section 14 of the CPA which provides:

“Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one court and the defendant resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of another court, the suit may be instituted at the option of the in either of those courts.”

  • The key words in section 14 of the CPA are- “if the wrong was done within the local limits of the jurisdiction of one court,” and it is elementary logic that Uganda is not within the local limits of the Magistrates court in Mombasa or any court in the Republic of Kenya
  • Additionally, the respondent misconstrued the provisions of section 15 of the CPA which must be read together with section 14. The opening words of section 15 are:- “Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction…”
  • The court reiterated that the Constitution requires a purposive approach to statutory interpretation but a contextual or purposive reading of a statute must of course remain faithful to the actual wording of the statute.
  • As to the interested party’s argument that the applicant’s grounds were essentially grounds of appeal and therefore the applicant ought to have appealed against the decision, the court found that the supervisory jurisdiction of the High Court over subordinate courts involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner, but this power does not vest the High Court with an unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal.
  • The fact that the respondent assumed jurisdiction not expressly conferred upon him by the law and in a blatant breach of section 14 of the CPA is itself a proper case for the High Court to exercise its supervisory jurisdiction to prevent grave injustice and abuse of the law.
  •  The court thus granted the issuance of an order of certiorari quashing the decision/order made on 4th June 2021 by the respondent in and all the consequential orders and further granted the issuance of an order of prohibition prohibiting the respondent or any other court in the Republic of Kenya from proceeding with the said case or any other suit arising from the same cause of action.

Comment

  1. The court clarified the meaning of section 14, which for some strange reason has been used by inferior courts to accept jurisdiction in matters where the course of action arose outside Kenya.
  2. The court reiterated its power to supervise the inferior courts where the inferior court has acted in excess or without jurisdiction.

The decision is available here http://www.okadvocates.com/blog/wp-content/uploads/2022/01/Republic-vs-Magistrates-Court-Mombasa-ex-p-Absin-Synergy-Ltd.pdf

When Can a County Government Charge for Services?

Introduction

In Base Titanium Ltd vs the County Government of Mombasa and the Attorney General, the Supreme Court found that a cess of Kes.3,000 imposed upon each of the trucks belonging to Base Titanium (the appellant) by the County Government of Mombasa ((the 1st respondent) from 17th June 2014, whenever transporting the appellant’s  minerals from Kwale County to Mombasa Port which is within the 1st respondent’s jurisdiction was unconstitutional, null and void.

Background

It is amazing that this is a matter that had to be decided by the Supreme Court. The High Court and the Court of Appeal do not appear to have rendered themselves properly in this matter. This appeal, i.e., Base Titanium Ltd vs the County Government of Mombasa and the Attorney General, was an appeal concerning a cess of Kes.3,000 imposed upon each of the appellant’s trucks from 17th June 2014, whenever transporting its minerals from Kwale County to Mombasa Port which is within the 1st respondent’s jurisdiction. The 1st respondent continued to impose the cess despite a protest from the appellant that the same contravened the Constitution, and a further confirmation from the Attorney General that the cess imposed was unconstitutional.

Aggrieved by the 1st respondent’s action, the appellant filed a petition in the High Court where it sought (a) a declaration that the actions of the 1st respondent to charge the appellant a cess in the sum of Kshs.3,000 per truck, or any sum at all, a condition for the appellant to move its goods across the boundaries of the 1st respondent’s County is unconstitutional, null and void; b) a declaration that the 1st respondent has no mandate under the Constitution to pass any legislation that restricts the appellant’s right of movement by imposing a tax or revenue to be paid by the appellant as a condition for moving its goods across the 1st respondent’s boundaries; and (c) a mandatory injunction compelling the 1st respondent to refund to the appellant the sum of Kshs.1,542,000 paid by the appellant to the 1st respondent under duress as at 31st December 2014, and/or any other additional sums that the appellant has so paid to the 1st respondent from 1st January 2015, as cess on trucks transporting goods across the 1st respondent’s boundaries to the date of compliance with the mandatory injunction.

While properly identifying the one issue for determination as being, whether levy by the 1st respondent of a cess charge for transportation of the appellant’s goods through Mombasa County is constitutional within the power of the 1st respondent under Article 209 of the Constitution, the High Court, quite surprisingly dismissed the appellant’s petition on the ground that County Governments have, under Article 209 (3) and (4) of the Constitution, the power to levy taxes and charges for services that they provide including road transport and that the charge levied by the 1st respondent was not a tax or charge on the mineral product of Titanium mined and transported by the appellant, and that the charge was, accordingly, not barred by reference to Article 62 of the Constitution. The appellant was naturally aggrieved by this decision and appealed to the Court of Appeal, which surprisingly upheld the High Court decision. This forced the appellant to seek justice in the Supreme Court (the Court).

Determination

The Court identified two issues for determination. i.e., whether the cess charge imposed by the 1st respondent upon each of the appellant’s trucks was a charge on services as contemplated under Article 209 (4) and (5) of the Constitution of Kenya, and if so, what remedies would the Court offer.

Citing with approval the definition of the word ‘service’ as provided in the Oxford Dictionary of English 3rd Edition 2015 as “a system that provides something that the public needs, organized by the government or a private company,” the Court clarified that a service may include, for County transport, which entails County roads; street lighting; traffic and parking; public roads transport; and ferries and harbors, excluding the regulation of international and national shipping and matters related thereto comprising some of the functions and powers of County Governments under schedule four Part 2, section 5 of the Constitution. To this limited extent, the Court agreed with the High Court and the Court of Appeal, that County Governments have the mandate to charge levies for services rendered.

However, in so finding, the Court went on further to consider, quite correctly in our humble view, whether the roads accessed by the appellant are those within the purview of the Counties. Looking at the relevant legislation, the Court found that

  1. the Kenya National Highways Authority (KeNHA) is responsible for the development, rehabilitation, management, and maintenance of all National Trunk Roads comprising Classes S, A, and B roads. Class-S Road is defined as a highway that connects two or more cities and carries safely a large volume of traffic at the highest speed of operation; Class-A Road is defined as a highway that forms a strategic route and corridor connecting international boundaries at an identified immigration entry and exit points and international terminals such as international air or sea ports; and finally a Class-B Road, which is a highway that forms an important national route linking national trading or economic hubs, County Headquarters and other nationally important centres to each other and to the National Capital or to Class A roads;
  • the Kenya Urban Roads Authority (KURA) is responsible for the management, development, rehabilitation and maintenance of all public roads in cities and municipalities except where the roads are categorized as national roads. After the January, 2016, KURA’s mandate was expanded to all counties in line with article 6 (3) of the Constitution; and
  • the Kenya Rural Roads Authority (KERRA) is in charge of constructing, upgrading, rehabilitating and maintaining rural roads, controlling reserves for rural roads and access to roadside developments and implementing road policies in relation to rural roads. Under the classification of roads, KERRA is in charge of categories D, E, F, G, K, L, P, R, S, T, U, W.

Using these classifications, the Court found that to access the Port of Mombasa, the appellant must use the Likoni-Ukunda Roadwhich the Kenyan road system identifies as an A14 road, and that the said road falls directly into the category of a national road, directly under the mandate of KeNHA and the National government. The Court further found that the 1st respondent had not clarified how its charge met the categories it set out in Item 90 of the Mombasa County Finance Act, 2014 and that the 1st respondent had not stated if they provide street lighting, parking or maintenance of the road accessed by the appellants. Having established that Likoni-Ukunda Road was not a county road, the Court found that it was improper for the 1st respondent to levy a charge for road service for the same road that vests in the National Government.

The Court also took issue with the 1st respondent for issuing receipts marked ‘miscellaneous income’ or ‘Likoni Revenue Barrier’, because they did not disclose the nature or details of the payment.

The Court therefore, correctly, in our humble view, faulted the High Court and Court of Appeal for their interpretation and application of article 209 (4) of the Constitution in their finding that the cess levied by the 1st respondent was in line Constitution since, quite clearly, there was no service provided by the 1st respondent on the Likoni-Ukunda Road.

Regarding the reliefs, and having found as it had, the Court set aside the judgements of the High Court and the Court of Appeal, declared that the actions of the 1st respondent to charge the appellant a cess in the sum of Kshs.3,000 per truck, or any sum at all, a condition for the appellant to move its goods across the boundaries of the 1st respondent’s county is unconstitutional, null and void, declared that the 1st respondent had no mandate under the Constitution to pass any legislation that restricted the appellant’s right of movement by imposing a tax or revenue to be paid by the appellant as a condition for moving its goods across the 1st respondent’s boundaries and issued a mandatory injunction compelling the 1st respondent to refund to the appellant the sum of Kes.1,542,000 paid by the appellant to the 1st respondent under duress as at 31st December 2014, and/or any other additional sums that the appellant had so paid to the 1st respondent from 1st January, 2015 as cess on trucks transporting goods across the 1st respondent’s boundaries to the date of compliance with the mandatory injunction.

Our comments

We think the Court was spot on this matter. There has been a troubling spectre of County Governments raising illegitimate charges and, like in this case, referring to these illegitimate charges as services. The Court was quite clear that before a County Government can claim to have provided a service, it must not only show that the service falls within its purview, but must also demonstrate what service they have provided. We would add that the fact that article 209 (4) of the Constitution provides that “the national and county governments may impose charges for the services they provide,” appears to point out that these Governments have a discretion to impose charges but that discretion can only be exercised for services that have actually been provided. It goes without saying that a County Government or the National Government cannot purport to have provided a service in an area where the said Government has no jurisdiction.

The decision of the Court is welcome in that it removes the doubt that existed in the minds of trans-county traders to the effect that they would be charged for alleged services every time they find themselves in a different county. This makes county governance workable and less expensive for the citizenry. The decision also pointed to the fact that County Governments and indeed the National Government should be careful of the decisions they make as the Courts are not shy of ordering these Governments to pay compensation to persons that may be aggrieved by unlawful decisions made by the Governments.

The decision is available here http://www.okadvocates.com/blog/wp-content/uploads/2021/09/Base-Titanium-Limited-v-County-Government-of-Mombasa-and-another.pdf

Whether a delay in obtaining letters of administration to file suit constitutes a good ground for leave to file a suit out of time

SUMMARY
The High Court of Kenya allowed the appeal of the County Government of Kilifi (the appellant) on a question whether a delay in obtaining a limited grant of letters of administration constituted a good ground for allowing a suit to be filed outside the limitation period set in section 4 (2) of the Limitations of Actions Act, Cap 22 (the Limitation Act) finding that a delay in obtaining letters of administration did not constitute such a ground.  The successful appellants were represented by Okello Kinyanjui and Company LLP.

BACKGROUND
On the 31st of August, 2018, Edward Fondo Kalama and Mary Baya Karisa (the respondents) instituted a suit, as representatives of the estate of one George Katana Fondo (the deceased), where they sued the appellant for general and special damages for an alleged breach of duty of care in negligence. The suit concerned an accident which occurred on or about 20th of September, 2014 in which the respondents alleged that the deceased was properly and carefully riding his motor cycle registration number KMDB 940G at Matsangoni along Kilifi – Malindi Road and while trying to make a right turn at Roka – junction after indicating his intention to do so the appellant’s servant, driver or employee negligently managed or drove the appellant’s motor-vehicle registered number KBY 967C at very high speed thereby knocking down the deceased. As a result, the deceased succumbed to his injuries.

Before commencement and filing of the suit, the respondents filed an application seeking leave to extend time under the provisions of section 4 (1) of the Limitations Act as read with sections 27, 28, 29 and 30 of the Limitations Act. The reason for seeking to file suit out of time was based on the alleged delay by the High Court in issuing letters of administration to the respondents to enable the respondents file a suit. According to the respondents, this alleged delay was a material fact and a fact of a decisive character within the meaning of the Limitations Act. Leave to file suit out of time was, as required by law, granted ex-parte by the learned magistrate. The grant of leave to file suit out of time was challenged by the appellant as an issue within the trial of the main suit. The learned trial magistrate in her final determination ruled against the appellant and found that the extension of time to have been properly granted. The appellant was aggrieved by the decision as well as the whole judgment and appealed to the High Court.

HELD
The issues before the High Court were, broadly-speaking, the following, firstly whether the suit in the subordinate court was time barred and whether leave to file the suit out of time had been properly granted, secondly, whether the High Court should interfere with the subordinate court’s finding on liability and lastly, whether the High Court should interfere with the subordinate court’s finding on quantum.

On the three broad issues, the High Court fund as follows:

Whether the suit in the subordinate court was time barred and whether leave to file the suit out of time had been properly granted.

The High Court found that the operative provisions regarding time bar in negligence suits and whether leave was properly granted are to be found in sections 4 (2), 27, 28 and 30 of the Limitations Act.

According to the High Court, ignorance of the law was not an excuse and as such ignorance of the existence of the statutory period of limitation does not qualify as a material fact within the scope of section 27 of the Limitation Act. The High Court cited with approval the binding decision of the Court of Appeal in Bernard Mutunga Mbita v. Municipal Council of Mombasa & another CA No. 3 of 1992, where the Court of Appeal said:

“The court will grant an application for leave to bring an action after the expiry of the normal three years limitation period if the plaintiff proves that material facts relating to his cause of action, were or include facts of a decisive character hence were at all times outside the knowledge of the plaintiff until a date which was earlier after the end of the three year period or earlier than twelve months before its end and was, in earlier case, not more than twelve months before the date on which the action was brought. Material facts are restricted to three categories of fact, namely; –

The High Court also found that it was not sufficient that the facts unknown to the respondent should only be material, within the definition given in the Bernard Mutunga case, but that they must also be of a decisive character. The High Court found that the learned trial magistrate pronounced herself on the claim under the tort of negligence without giving proper interpretation to the provisions of section 27 on material facts or facts of a decisive character and section 30 of the Act and that the respondents failed to show that their failure to file the cause of action within time was due to material facts or facts of a decisive character. The High Court found that the language used in sections 27 and 30(3) of the Limitation Act does not import an open guarantee of discretion to be exercised at whim or caprice by the trial court.

Whether the High Court should interfere with the subordinate court’s finding on liability.

The High Court found that the respondent had the burden to prove the element of tort of negligence on a balance of probabilities. Having found that, he continued to say that the trial court did consider fully the case prosecuted by the respondent and that the trial court did justice in a balancing act of competing interest of the parties as to who between them was to blame for the accident. The High Court, therefore found no new evidence to warrant interference with the decision on liability

Whether the High Court should interfere with the subordinate court’s finding on quantum.

The High Court found that there was no evidence to interfere with the assessment by the trial court.

The High Court thus, granted the appellants appeal with no order as to costs.

OUR COMMENT

This judgment dealt with the issue of what is a good reason to grant leave to file a suit out of time. Specifically, it looked at whether a party claiming to have experienced delay in receiving letters of administration can be heard to say that such delay was a material fact or a fact of a decisive character within the meaning of the Limitations Act. The High Court unequivocally found that the delay in obtaining letters of administration was not a material fact or a fact of a decisive character. We would proceed to add that, sections 27, 28, 29 and 30 of the Limitation Act must be strictly construed. This is not only in keeping with the rule of law as provided in article 10 if the Constitution of the Republic of Kenya but also, as the High Court pointed out, there are important policy reasons for keeping a strict construction of the said sections, such as, firstly, “a public interest, which is independent of the parties, in not permitting claims which have not been brought in a timely fashion, to take up valuable and important time of the Courts and thereby reduce the availability of that much used and need resource to plaintiffs and defendants who have acted promptly in their litigation, as well as increase the cost to the Courts Service and through that body to taxpayers, of providing a service of access to the Courts which serves best the public interest,” per Peart J. in Byrne V Minister for Defence [2005]1 IR 577, 585, secondly, the effects of delay on the fairness of civil trials and lastly, limitation periods represent legislature’s judgement that a democratic society governed by the rule of law is best served by causes of actions litigated within the prescribed time.

The decision is available http://www.okadvocates.com/blog/wp-content/uploads/2021/07/County-Government-of-Kilifi-vs-Edward-Fondo-Kalama-and-another.pdf

The United Kingdom Supreme Court Clarifies on the Collision Regulations

INTRODUCTION
In the first collision appeal to come before the Supreme Court of the United Kingdom (UK), and nearly 50 years after a collision appeal was last heard by the House of Lords, the Supreme Court has provided clarification on how to construe the International Regulations for Preventing Collisions at Sea 1972, as amended (“the Collision Regulations”) for the purposes of applying the Crossing Rules (Rules 15-17).

BACKGROUND
This appeal concerned a collision at sea between the appellant’s vessel (“Ever Smart”) and the respondent’s vessel (“Alexandra 1”). The collision took place on 11 February 2015 just outside the dredged channel by which vessels enter and exit the port of Jebel Ali in the United Arab Emirates. Alexandra 1 was inbound, while Ever Smart was outward bound. The damage suffered by Alexandra 1 amounted to over US$9.3 million and the damage suffered by Ever Smart amounted to over US$2.5 million.

The Admiralty Court determined that the appellant’s vessel, Ever Smart, should bear 80% of the liability for the collision and the respondent’s vessel, Alexandra 1, should bear 20%. The judge held that the crossing rules (Rules 15-17 of the Collision Regulations) did not apply and therefore that Alexandra 1 did not navigate in breach of Rule 16, the crossing rule which was said by the appellant to have applied to the Alexandra 1.

The Court of Appeal dismissed the appellant’s appeal.

The appellant then appealed to the Supreme Court.

HELD
The Supreme Court unanimously allowed the appeal. Lord Briggs and Lord Hamblen gave the judgment, with which the other members of the Court agreed.

The Court stated that the focus of the appeal is the crossing rules, but it is important to read them in context. A risk of collision between two powered vessels can arise in three different ways and the Collision Regulations establish rules for each: overtaking vessels; vessels approaching each other head-on; and vessels crossing so as to involve risk of collision. “Crossing” means that the vessels’ courses are not parallel but intersecting. “So as to involve risk of collision” may be determined in a variety of ways, but if the vessels are approaching each other on a steady bearing, there will be a deemed risk of collision (rule 7(d)(i)). The crossing rules lie at the heart of the scheme for avoiding collisions where two vessels are approaching each other on a steady bearing (other than overtaking or head-on) and are thereby at risk of collision.

Issue 2: will the crossing rules only engage if the putative give-way vessel is on a steady course?
This question was considered first because it determined whether the crossing rules were even engaged. The Supreme Court found that there was no ‘steady course’ requirement. Furthermore, Alexandra 1 was approaching Ever Smart on a steady bearing for over 20 minutes before the collision, on a crossing course. This was sufficient to engage the crossing rules even though she was not on a steady course. Although it did not arise on the facts, for the same reasons the stand-on vessel needed not be on a steady course to engage the crossing rules either.

Issue 1: the interplay between the narrow channel rules and the crossing rules
The narrow channel rules require vessels proceeding along the course of a narrow channel to keep as near to its starboard side as is safe and practicable (rule 9(a)). The critical question in relation to Issue 1 was which rules applied when one vessel was proceeding along a narrow channel towards its exit and the other vessel was approaching its entrance with a view to proceeding along it. The courts below considered that the narrow channel rules displaced the crossing rules. However, the Supreme Court found that the crossing rules should not be overridden in the absence of express stipulation, unless there is a compelling necessity to do so.

In this case, Alexandra 1 was the approaching vessel, intending and preparing to enter the channel but, crucially, waiting for her pilot rather than shaping her course for the starboard side of the channel, on her final approach. In this scenario, there was no necessity for the crossing rules to be overridden as the narrow channel does not yet dictate the navigation of the approaching vessel. She could comply with her obligations under the crossing rules, whether she was the give-way vessel or the stand-on vessel. Similarly, there was no need to disapply the crossing rules from the perspective of the vessel leaving the channel. The Supreme Court held that the crossing rules are only displaced when the approaching vessel is shaping to enter the channel, adjusting her course so as to reach the entrance on her starboard side of it, on her final approach.

Therefore, the crossing rules applied and Alexandra 1, as the give-way vessel, was obliged to take early and substantial action to keep well clear of Ever Smart. As a result, the High Court would need to redetermine the apportionment of liability between the two parties.

COMMENTS
The judgment offers clarification on the collision rules. This is of importance given the various incidences around the world. The decision is important for Kenya because Kenya, by virtue of section 4 (2) of the Judicature Act, Cap 8 applies English law in admiralty matters. Further Kenya acceded to the Collision Regulations on the 15th December, 1992 meaning the same came into force internationally for Kenya on the 15th of December, 1992. Furthermore, Kenya has legislated the Collision Regulations into its law by virtue of sections 203 to 219 of the Merchant Shipping Act, 2009. The decision of the UK Supreme Court will offer tremendous guidance on the topic.

The decision is here http://www.okadvocates.com/blog/wp-content/uploads/2021/02/uksc-2018-0216-judgment.pdf

SUPREME COURT CLARIFIES ON INNOVATIVE RELIEFS AND POSITION OF INTERNATIONAL LAW

Mitu-Bell Welfare Society, a society registered under the provisions of the Societies Act Cap 108 (the appellants) comprising of residents of Mitumba Village, with 3065 households or approximately 15,325 men, women and children filed a petition in the High Court of Kenya on behalf of its members and other residents of Mitumba village. On the basis of the pleadings, at the time of filing the petition before the High Court, the appellants were all residents of Mitumba Village situated on Plot Number 209/12908, near Wilson Airport, Nairobi; while their children attended school at Mitumba Primary School, situated on plot number 209/12921, also located near the Wilson Airport. The appellants’ petition was prompted by a notice published in the newspapers on 15th September 2011, by the 2nd respondent giving them seven (7) days within which to vacate the suit land. Together with the petition, the appellant filed a chamber’s summons application seeking among others, conservatory orders against Kenya Airports Authority (the 1st respondent).

On the 22nd of September, 2011, the High Court granted an order restraining the respondents, i.e., the 1st respondent as well as the Hon. Attorney-General (the 2nd respondent) and the Commissioner of Lands (the 3rd respondent) from demolishing the village pending the hearing inter-partes and determination of the application for conservatory orders. However, notwithstanding the conservatory order, the respondents proceeded to demolish the appellants’ houses in the village on 19th November, 2011. The demolition necessitated the amendment of the petition and the issues framed in the High Court of Kenya arising from the amended petition and responses from the respondents were as follows:

  • What rights, if any, do the [appellants] have over the subject property?
  • If the answer to (i) above is in the negative, was their eviction and the demolition of their houses a violation of their rights under the Constitution?
  • If the answer to (ii) above is in the positive, what relief should the Court grant to the petitioners?
  • Rights over the Subject Property.

The High Court, inter-alia, allowed the petition, declaring that following the demolition of Mitumba village, more so as the demolition was carried out while an Order of the Court restraining the demolition was in force, the 1st and 2nd Respondents had violated the appellants’ constitutional rights.

Before making any further Orders with regard to the appropriate relief for the appellants in the matter, the Court directed as follows;

  • That the respondents do provide, by way of affidavit, within 60 days of judgment, the current state policies and programmes on provision of shelter and access to housing for the marginalised groups such as residents of informal and slum settlements.
  • That the respondents do furnish copies of such policies and programmes to the appellants, other relevant state agencies, Pamoja Trust (and such other civil society organisation as the appellants and the respondents may agree upon as having the requisite knowledge and expertise in the area of housing and shelter provision as would assist in arriving at an appropriate resolution to the appellants’ grievances), to analyse and comment on the policies and programmes provided by the respondents.
  • That the respondents do engage with the appellants, Pamoja Trust, other relevant state agencies and civil society organizations with a view to identifying an appropriate resolution to the appellants’ grievances following their eviction from Mitumba Village.
  • That the parties report back on the progress made towards a resolution of the appellants’ grievances within 90 days from the date of Judgment.

In effect, the High Court was issuing, as appropriate relief, post judgment supervision of the matters which it had given directions on. Thereafter, the State filed an affidavit appending the Government’s Guidelines on Settlement and Evictions. Consequently, the learned Judge gave parties 45 days to engage in discussions with a view to finding an amicable solution.

Aggrieved and dissatisfied with the entire Judgment and directions of the High Court, the 1st respondent filed an appeal in the Court of Appeal. The Court of Appeal on its part, identified eleven issues arising from the appeal filed before it. In doing so the Court of Appeal, inter-alia, upheld the High Court’s finding of the 2nd respondent’s liability on grounds that under the provisions of article 156 (4) (a) and (b) of the Constitution, the 2nd respondent is the legal advisor to the Government, and is empowered (other than in criminal proceedings) to represent the Government in Court or in any other legal proceedings to which the National Government is a party. The appellate court however set aside any liability against the 3rd respondent, and concluded that the High Court, erred in law in making a composite order and issuing directives against the latter.

The Court of Appeal in addressing the issue of reservation of powers to make further orders, faulted the High Court, for delivering a judgment and then reserving outstanding matters to be dealt with by the same Court. It further found that, save for the limited exceptions provided for in law, delivery of judgment marks the end of litigation and the end of jurisdictional competence of the High Court, hence upon delivery of judgment, a court becomes functus officio.

On the issue of reliance on the Universal Declaration of Human Rights, the Court of Appeal without faulting the High Court for citing the UN Guidelines, noted that it was imperative to bear in mind the hierarchy of laws in Kenya view. It opined that before a court can invoke article 2 (5) of the Constitution, it must be satisfied that the rule of international law being invoked is a general rule of international law and not simply a rule of international law; that it must be borne in mind that the United Nations and any other international or multilateral organization is neither a supplementary nor complementary legislature for Kenya; that neither the UN nor any international organization legislates for Kenya; and that it is impermissible to use article 2 (5) of the Constitution as a basis to justify any or all rules and principles of international law as part of the laws of Kenya.

The appellant, being aggrieved, filed an appeal to the Supreme Court after applying to the Court of Appeal that there were matters of public importance which the Court of Appeal certified. The Supreme Court identified the following five issues:

  • What is the place of Structural Interdicts(if any) as forms of relief in human rights litigation under the Constitution?
  • What is the effect of Article 2 (5) and 2 (6) of the Constitution regarding the applicability of international law in general and international human rights in particular?
  • To what extent are Guidelines by UN bodies relevant in the interpretation and application of Socio-Economic Rights by Kenyan Courts under the Constitution?
  • Under what circumstances may a Right to Housing accrue (if at all) in accordance with the provisions of Article 43 (1) (b) of the Constitution?

Held

Structural Interdicts

The Supreme Court reiterated, once again, that the High Court had powers to craft appropriate remedies, even structural interdicts, but cautioned that interim reliefs, structural interdicts, supervisory orders or any other orders that may be issued by the Courts, have to be specific, appropriate, clear, effective, and directed at the parties to the suit or any other State Agency vested with a Constitutional or statutory mandate to enforce the order. Most importantly, the Court in issuing such orders, must be realistic, and avoid the temptation of judicial overreach, especially in matters policy. The orders should not be couched in general terms, nor should they be addressed to third parties who have no Constitutional or statutory mandate to enforce them. Where necessary, a court of law may indicate that the orders it is issuing, are interim in nature, and that the final judgment shall await the crystallization of certain actions.

Applicability of international law under article 2(5) and 2(6) of the Constitution

The Supreme Court found that article 2(5) and (6) of the Constitution has nothing or little of significance to do with the monist-dualist categorization. Most importantly, according to the Supreme Court, the expression “shall form part of the law of Kenya”as used in the Article does not transform Kenya from a dualist to a monist state as understood in international discourse. The Supreme Court then went ahead to State that the phrase, “shall form part of the law of Kenya”, was in fact first embraced by what it described as “the pioneer dualist states”, i.e., the United Kingdom and the United States.

The role of the UN Guidelines in the interpretation and clarification of the Bill of Rights

The Supreme Court held that the Guidelines cannot be regarded as being part of the treaty under which they were issued. They are tools or aids directed to states parties to help the latter in implementing the treaty or better fulfilment of their obligations there-under. Each state party is free to make use of the Guidelines, to the extent that is practicable under its legal system. The guidelines are not “binding” upon the States parties, nor are they part of the law of Kenya in the language and meaning of article 2 (6) of the Constitution, unless they have ripened into a norm of customary international law, as evidenced by widespread usage. Again, we must emphasize that there is nothing wrong in a court of law-making reference to the Guidelines as an interpretative tool aimed at breathing life into article 43 of the Constitution.

The right to housing under article 43 of the Constitution

The Supreme Court was categorical that the right to housing in its base form (shelter) need not be predicated upon “title to land”. Indeed, the Supreme Court held, it is the inability of many citizens to acquire private title to land, that condemns them to the indignity of “informal settlement”. Where the Government fails to provide accessible and adequate housing to all the people, the very least it must do, is to protect the rights and dignity of those in the informal settlements. The Supreme Court was categorical that the courts are there to ensure that such protection is realized.

Comments

The decision by the Supreme Court, in the main, was progressive. It recognized in our view three major issues, i.e., firstly that the High Court, when considering the terms, appropriate relief, in articles 22, 23 and 258 of the Constitution can craft innovative remedies, including supervisory structural interdicts. These crafted remedies have to be specific, appropriate, clear, effective, and directed at the parties to the suit or any other State agency. Secondly, as far as the Supreme Court was concerned, international law, though applicable in Kenya was lower in hierarchy to the Constitution, statute and written decisions. We think the court may have slightly misdirected itself on this point. The Supreme Court mentioned having been guided by the decisions of the US Supreme Court in the Paquete Habanaand the English courts in the Triquet & Others v. Bath., to determine the meaning of the term “shall form a part of the law of Kenya used in articles 2 (5) and 2 (6) of the Constitution However a look at those decisions and the law they were interpreting shows that the Supreme Court misdirected itself. In the the Paquete Habana, the US Supreme Court said:

“International law is part of our law, and must be ascertained and administered by the Courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations, and as evidence of these, to the works of jurists and commentators who by years of labor, research and experience have made themselves peculiarly well acquainted with the subjects of which they treat…” Given that article IV cl. 2 of the US Constitution provides in relevant part, that the “Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land, it would be surprising if the Paquete Habana was decided any differently than it had. International law is part of US law by dint of their Constitution. The US cannot therefore be referred to, as the Supreme Court thought, as a “dualist” State. On the other hand, when the English court was making its decision in Triquet & Others v. Bath, the UK did not have, and does not, at present, have a written Constitution. In the UK, Parliament is Supreme and customary international law is accepted by the courts as part of the law, subject of course to the law made by Parliament. So whilst in the UK, it is the courts that accept customary international law as part of the law of the UK, in Kenya, the Constitution itself directs that customary international law and treaty international laws shall from part of the law of Kenya. The effect of the Supreme Court’s decision regarding the station of international law is to reduce article 2 (5) and 2 (6) to empty platitudes. Granted, it is difficult to discern why the Constitution’s drafters wanted international law to be an automatic part of Kenyan law, but that, indeed, was their intention.

The decision is available here http://www.okadvocates.com/blog/wp-content/uploads/2021/02/Mitu-Bell-Welfare-Society-v-Kenya-Airports-Authority-and-2-others.pdf