Pil Kenya Limited v Joseph Oppong
The bottom line
#Kenya's Court of Appeal threw out a shipping delay award, ruling the carrier acted properly by holding disputed cargo until courts resolved rival ownership claims.
What this practically means
#Executive summary
#Key legal issues
#Privity of contract between carrier's agent and consignee
The court found no direct contract between the appellant and the respondent, but the respondent as consignee under the amended bill of lading could nevertheless hold the bailee/carrier to its duty to deliver the goods to the consignee.
The bill of lading evidences a contract of bailment between shipper and ship-owner; the appellant was agent of the ship-owner and obliged to deliver the cargo to the amended consignee. Bosire JA held there was no privity strictly speaking but a legal duty on the amended bill of lading; Onyango Otieno JA reasoned the consignee could enforce the contract between the principals and sue for non-delivery; Nyamu JA found no contract at all given the amended bill of lading.
Effect of a notice of withdrawal of suit
A plaintiff needs no leave or court order to withdraw a suit before judgment by filing a notice of withdrawal; after withdrawal no suit exists in which orders other than on costs can be made, and a fresh suit on the same cause of action is not barred as res judicata.
Bosire JA analysed O.XXIV rules 1 and 4 of the Civil Procedure Rules: withdrawal terminates the suit subject to costs; a subsequent suit may at most be stayed until costs of the discontinued suit are paid, so the respondent's suit was not res judicata. The consent order recorded in the withdrawn suit was made without jurisdiction.
Setting aside of consent orders
An award of sums paid under a consent order amounts to setting aside that order, which can only be done on grounds such as fraud, mistake or misapprehension, and only if properly pleaded and proved; the trial court erred in awarding USD 3,000 paid under the consent order without such a plea.
Following Flora N. Wasike v Destimo Wamboka and Hirani v Kassam, Onyango Otieno JA held that a consent order binds parties until set aside on established grounds; the respondent, having obtained release of the goods under the consent order, waived his right to rely on the 'pier to pier' status and was caught by the consent. Nyamu JA likewise treated the consent order as final and binding.
Special damages - pleading and proof, and double recovery
Special damages must be strictly pleaded and proved; awards cannot be made for costs recoverable in another suit or already recoverable elsewhere, as that would confer a double benefit on the claimant.
The respondent conceded the Ugandan costs were payable by Alice, so the USD 2,000 award gave him a double benefit; the Kenyan suit costs had been taxed at Kshs.1,100,000, so the USD 1,000 award duplicated that recovery. The USD 8,234 for accommodation, travel and upkeep was not meticulously proved. Bosire JA disallowed the first two; Onyango Otieno and Nyamu JJA disallowed all heads.
Res judicata, judicial estoppel and abuse of process
Nyamu JA held the later suit was res judicata and an abuse of process because its issues were between the same parties and arose from the same subject matter already settled by the consent order in HCCC No. 260 of 2000; the respondent was caught by approbate-reprobate and estoppel by record.
Having taken the benefit of the consent order (release of the goods), the respondent was precluded from attacking it in subsequent proceedings; the interim Ugandan preservation order, served on the appellant's Ugandan office, bound the appellant and explained its refusal to release. The claim in the later suit lacked any contractual, tortious or agency basis.
Duty to mitigate and remoteness of damage
A plaintiff who is the author of the events giving rise to his loss must take reasonable steps to mitigate; losses not in the contemplation of the parties when the bill of lading was signed are too remote and unrecoverable.
Nyamu JA applied Hadley v Baxendale on remoteness and British Westinghouse on mitigation, holding that Ugandan legal costs, hotel accommodation and telephone bills did not flow from any breach by the appellant and could not fairly and reasonably have been within the parties' contemplation; the respondent could have mitigated by expeditiously disposing of the ownership claims.
Duty of a carrier facing conflicting claims
Onyango Otieno JA held the appellant acted properly in refusing release pending a court order where rival claimants asserted rights; the resulting delay was explained and not attributable to the appellant.
The confusion was of the respondent's own making: he caused the bill of lading amendments that triggered conflicting claims by Alice Kemigisha and Jeneby Taita. With a foreign preservation order served on it and a Kenyan suit pending, the appellant had to act cautiously to avoid contempt; it could not ignore the Ugandan order served on its branch there.
Legal principles established
#- A consent judgment can only be set aside on the same grounds as would justify setting aside a contract, such as fraud, mistake or misapprehension; a party cannot recover amounts paid under a subsisting consent order without first having it set aside on proper pleadings.
- A carrier faced with conflicting claims to cargo may properly decline release and require the claimants to obtain a court order; where a foreign preservation order binds it, delay in releasing the goods is explained and no liability arises.
- On a first appeal the Court is bound to re-evaluate the evidence afresh and reach its own conclusions while making allowance for the trial court's advantage of seeing and hearing the witnesses.
Court orders
#- 1.The appeal is allowed on the terms proposed by Onyango Otieno JA
- 2.The judgment of the superior court (Khaminwa J.) of 15th September 2006 is set aside
- 3.Costs of the appeal and costs in the superior court are awarded to the appellant
- On appeal from
- High Court of Kenya at Mombasa
- High Court Civil Case No. 446 of 2001
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (the judgment describes itself as 'a first appeal from the decision of the superior court'); no specific constitutional provision invoked.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pil Kenya Limited v Joseph Oppong", Case Analysis (2009). Civil Appeal No. 128 of 2007 (from Mombasa High Court Civil Case No. 446 of 2001). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/443/eng@2009-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.