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Court of AppealDismissedCivil Appeal No. 320 of 2003· [2014] KECA 240 (KLR)

Njoka Tanners Limited v Ocean Freight (EA) Limited & another [2014] KECA 240 (KLR)

Court of Appeal of Kenya
21 November 2014
2,666 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that joining a shipping company to a lawsuit after the one-year Hague Rules deadline kills the claim, even if another defendant was sued in time.

What this practically means

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Executive summary

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This Court of Appeal judgment at Nairobi (Nambuye, Maraga and J. Mohammed, JJ.A) dismissed the appellant's first appeal against a High Court ruling (Hewett, J, 30th March 2001, HCCC No. 607 of 1998) that struck out Mediterranean Shipping Company SA Geneva (the 2nd respondent) from the amended plaint and dismissed the suit against it. The appellant, owner of a consignment of Wet Blue Tanned Hides shipped from Mombasa to Italy under Bill of Lading Number MSCUM-0785156, sued the 1st respondent (its agent) and later joined the 2nd respondent (the ship-owner principal) on 9th December 1999, claiming wrongful release of goods to the consignee without production of the Bill of Lading. The 2nd respondent successfully applied to be struck out on the ground that the one-year limitation period in Article III(6) of the Hague Rules and Clause 21 of the Bill of Lading had expired. The Court of Appeal held that the amended plaint did not plead fraud or illegality - which must be particularised - so the claim was governed by the contract of carriage in the Bill of Lading. Applying Ketteman v Hansel Properties and The Jay Bola, the court held that the relation back principle does not apply where a defendant is joined after expiry of the Hague Rules one-year time limit; the action was deemed brought only when the 2nd respondent was joined, two months too late. The appeal was dismissed with costs.

Key legal issues

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01

Whether the cause of action included fraud and illegality exempting the claim from the Hague Rules

Holding

No - fraud was never pleaded and the cause of action was founded on the contract of carriage contained in the Bill of Lading

Reasoning

The amended plaint pleaded breach of contract arising from release of goods without a Bill of Lading. Fraud was not particularised as required. Consequently the Hague Rules and the Bill of Lading conditions governed the claim and the one-year time limit applied.

p. 4
02

Whether the relation back principle applied to the joinder of the 2nd respondent

Holding

No - the action against the 2nd respondent was brought only when it was joined on 9th December 1999, two months after the limitation period expired

Reasoning

Relying on Ketteman v Hansel Properties and The Jay Bola, the court held that joinder of a new defendant after the one-year time limit under Article III(6) of the Hague Rules does not relate back to the original writ. The suit against the 2nd respondent was therefore extinguished by limitation.

p. 4
03

Whether the striking-out application was fatally defective for not citing the relevant rules

Holding

No - the failure to specify the rules under which the application was brought did not render it defective

Reasoning

The court agreed with the 2nd respondent's submission that it was obvious the application was brought under Order VI rules 13 and 16 of the Civil Procedure Rules and that non-citation was not fatal. The appeal was dismissed on the substantive limitation ground.

p. 5

Legal principles established

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  • Where a defendant is added to an action after expiry of the one-year limitation period under Article III(6) of the Hague Rules, the joinder does not relate back to the original writ; the action is deemed brought against the added defendant when joined.
  • A claim founded on fraud must be specifically particularised in the pleadings; a party cannot raise fraud for the first time on appeal if it was not pleaded.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Appellant to pay costs of the appeal

Authorities

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Legislation

  • Carriage of Goods by Sea ActCap 392
  • International Convention relating to Bills of Lading (Hague Rules)Article III paragraph 6
  • Civil Procedure RulesOrder VI rules 13 and 16

Cases cited (8)

  • Selle v Associated Motor Boat Co Ltd
    (1968) EA 123
  • Kenya Ports Authority v Kuston (Kenya) Ltd
    (2009) 2 EA 212
  • PIL Kenya Ltd v Oppong
    (2009) KLR 442
  • New Textile Co. Ltd v Leslie Anderson (E.A) Ltd & Ors
    HCK Civil Case No. 882 (A) of 1978 (Unreported)
  • Aries Tanker Corporation v Total Transport Ltd (The Aries)
    [1977] Lloyd's Law Reports
  • Ketteman and Ors v Hansel Properties Ltd
    [1988] 1 All ER 38
  • Kenya Railways v Antares Co. Pte Ltd (The Antares) (Nos. 1 and 2)
    [1987] Lloyd's Law Reports
  • Payabi and Another v Armstel Shipping Corp and Another (The Jay Bola)
    (1992) 3 All ER 329
On appeal from
High Court of Kenya at Nairobi
HCCC No. 607 of 1998
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal jurisdiction (Appeals from the High Court exercising original civil jurisdiction); no specific constitutional provision invoked

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Njoka Tanners Limited v Ocean Freight (EA) Limited & another [2014] KECA 240 (KLR)", Case Analysis (2014). Civil Appeal No. 320 of 2003. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/240/eng@2014-11-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.