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Court of AppealPartially AllowedCivil Appeal No. 149 of 2012· [2014] KECA 688 (KLR)

Kenya Ports Authority v African Line Transport Co. Ltd [2014] KECA 688 (KLR)

Court of Appeal of Kenya
27 March 2014
5,684 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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The Court of Appeal threw out a Kshs.100 million award against Kenya Ports Authority because the transporter never proved the missing goods reached the port.

What this practically means

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Executive summary

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This is a first appeal by Kenya Ports Authority against a High Court judgment (Sergon J, dated 24 September 2010) awarding African Line Transport Co. Ltd Kshs.100 million for loss of user of five trailers and Kshs.700,000 refund of Port charges, on findings that the Authority detained part of an imported consignment for 632 days. The Court of Appeal (Okwengu, Makhandia and Sichale, JJ.A) allowed the appeal in a single judgment of the court. The court held that the trial judge failed to determine a foundational issue arising from the pleadings - whether the missing goods were ever shipped and discharged into the appellant's custody - and wrongly shifted the evidential burden to the appellant before the respondent discharged its legal burden of proving importation and discharge. The court also held that loss of use must be pleaded and strictly proved as special damages; the award exceeded the pleaded figure, was unsupported by audited accounts, and ignored the respondent's failure to mitigate. On limitation, the court held that an ex parte order granting leave to sue out of time could be challenged within the suit. Critically, the court found that section 62 of the Kenya Ports Authority Act ousted the High Court's jurisdiction by providing for compulsory statutory arbitration, which parties could not waive by participating in litigation. The court set aside the trial judgment, dismissed the respondent's suit with costs, and awarded the appellant costs of the appeal. The decision binds subordinate and High Court Benches on burden of proof, special damages, mitigation, and statutory ouster of jurisdiction.

Key legal issues

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01

Whether the trial judge identified and pronounced judgment on the issues arising from the pleadings

Holding

The trial judge missed the critical issue of whether the goods were shipped and discharged into the appellant's custody, and started from the wrong premise that the consignment had arrived and been discharged to the appellant; this was a misdirection.

Reasoning

Pleadings raised a disputed issue whether the goods in paragraph 3 and 5 of the plaint were shipped and discharged to the appellant. The Bill of Lading relied on in the plaint did not list the missing items, which appeared only in a document attached to another Bill of Lading with no proven nexus. A Bill of Lading is not conclusive proof of shipment and may be controverted. Failure to determine this foundational issue vitiated the judgment.

p. 5
02

Allocation of the burden of proof regarding importation, discharge and release of the consignment

Holding

The respondent, as the party asserting that the goods were imported and discharged to the appellant, bore the legal burden of proving that fact first; the trial judge prematurely shifted the evidential burden to the appellant to prove release of the whole consignment.

Reasoning

Section 107 of the Evidence Act places the burden on whoever asserts facts. Without proof that the missing goods were shipped and discharged to the appellant, the respondent's claim could not stand. The gate pass indicated the consignment as complete with no balance endorsed, and the respondent's witnesses were clearing agents who did not participate in the discharge, leaving the possibility that the trailers were never discharged from the ship.

p. 7
03

Whether the claim for loss of use was properly pleaded and proved, and whether the award of Kshs.100 million was proper

Holding

The trial judge wrongly treated loss of use as general damages when it was pleaded as special damages; the award could not exceed the pleaded Kshs.79 million, was not strictly proved (no audited accounts), and failed to account for mitigation.

Reasoning

Damages for loss of use must be pleaded and strictly proved as special damages. The only evidence was the accountant's estimate without statements of account. The respondent sat back counting losses on trailers valued at Kshs.449,750 instead of importing alternatives, breaching the duty to mitigate; at most loss of use should have been limited to 12 months. The award of Kshs.100 million was preposterous and the judgment on damages could not stand.

p. 8
04

Whether the suit was statute barred and whether the extension of time could be challenged

Holding

The ex parte order granting leave to file suit out of time was challengeable within the suit, and the trial judge erred in failing to re-examine the limitation issue and the validity of the extension.

Reasoning

Following Divecon Limited v Shirinkhanu Sadrudin Samnani, the proper forum to challenge an ex parte extension order is within the suit once filed. The appellant raised limitation in its defence, so the trial judge was duty-bound to consider the validity of the extension rather than dismissing the point on the basis that leave had been obtained.

p. 9
05

Whether the High Court had jurisdiction in light of section 62 of the Kenya Ports Authority Act

Holding

Section 62 of the Kenya Ports Authority Act ousted the court's jurisdiction by providing for compensation by agreement or compulsory statutory arbitration, and the parties could not confer jurisdiction on the High Court by their pleadings or participation.

Reasoning

The appellant was alleged to have been exercising powers under section 12(1) of the Act, so section 62 applied. Adopting Kenya Ports Authority v Kustron (Kenya) Limited, compulsory statutory arbitration under section 62 touches on the jurisdiction of the superior court; parties cannot contract out of the statute, cannot waive the bar by participating in the suit, and an illegality once committed remains an illegality.

p. 9

Legal principles established

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  • A first appellate court must reconsider and evaluate the evidence and reach its own conclusion, while giving allowance for the trial judge's advantage of seeing and hearing the witnesses, and will not interfere with findings of fact based on no evidence, misapprehension of the evidence, or wrong principles.
  • Issues for determination in a suit flow from the pleadings, and a trial court may only pronounce judgment on issues arising from the pleadings or as framed by the parties.
  • A party asserting facts on which its claim depends bears the legal burden of proving those facts before the evidential burden can shift to the other party.
  • Where a statute provides for compulsory statutory arbitration (section 62, Kenya Ports Authority Act), the jurisdiction of the superior court is ousted and parties cannot confer jurisdiction by their pleadings or conduct; there can be no waiver of the statutory bar.
  • The proper forum to challenge an ex parte order granting leave to file suit out of time is to raise the issue within the suit after it has been filed, and the court must then examine the validity of the extension.
  • Damages for loss of use of a vehicle must be claimed and strictly proved as special damages, not general damages, and an appellate court will not disturb an award unless it proceeds on wrong principles or misapprehends the evidence so as to be an erroneous estimate.

Court orders

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  1. 1.Appeal allowed
  2. 2.Judgment of the trial court set aside
  3. 3.Respondent's suit dismissed with costs
  4. 4.Appellant to have costs of this appeal

Authorities

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Legislation

  • Civil Procedure Rules (former edition)Order XIV
  • Civil Procedure Rules (former edition)Order XIV Rule 5
  • Civil Procedure Rules (former edition)Order XX Rule 4
  • Civil Procedure Rules (former edition)Order XII Rule 5
  • Evidence ActSection 107
  • Kenya Ports Authority Act (Cap 391)Section 62(1)
  • Kenya Ports Authority Act (Cap 391)Section 12(1)
  • Kenya Ports Authority Act (Cap 391)Sections 14, 15 and 16 (referred to within section 62)

Cases cited (12)

  • Selle & Another v Associated Motor Boats Co. Ltd
    [1968] EA 123
  • Chemagong v Republic
    [1984] KLR 611
  • Galaxy Paints Company Limited v Falcon Grounds Limited
    [2000] 2 EA 385
  • Heskell v Continental Express Ltd
    [1950] 1 All ER 1033
  • Kenya Ports Authority v Kuston (Kenya) Ltd
  • Kemfro Africa Ltd t/a Meru Express Services & Another v A.M. Lubia & Another
    [1982-1988] 1 KAR 727
  • Waweru v Ndiga
    [1983] KLR 236
  • African Highland Produce Ltd v John Kisorio
    Civil Appeal No. 264 of 1999
  • Divecon Limited v Shirinkhanu Sadrudin Samnani
    Civil Appeal No 142 of 1997 (Unreported)
  • Kenya Ports Authority v Kustron (Kenya) Limited
    Civil Appeal No. 315 of 2005 (unreported)
  • Allarakhai v Aga Khan
    [1969] EA 613
  • Mayers & Another v Akira Ranch Ltd (2)
    [1972] EA 347
On appeal from
High Court of Kenya at Mombasa
Mombasa Commercial Case No. 128 of 2006
Jurisdiction invoked
First appeal to the Court of Appeal under the appellate jurisdiction of the Court (Constitution/Act of the Court of Appeal); the judgment does not cite a specific provision

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Ports Authority v African Line Transport Co. Ltd [2014] KECA 688 (KLR)", Case Analysis (2014). Civil Appeal No. 149 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/688/eng@2014-03-27

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