Kenya Ports Authority v Threeways Shipping Services (K) Limited [2019] KECA 472 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that negligence claims against Kenya Ports Authority belong in the High Court, not arbitration.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Section 62 of the Kenya Ports Authority Act ousts the jurisdiction of the High Court to entertain, hear and determine the respondent's claim founded on negligence
- 2.The relationship between Section 22 and Section 62 of the Kenya Ports Authority Act, including the negligence exception in Section 62(2)(a) and (b)
Key legal issues
#Whether Section 62 of the Kenya Ports Authority Act ousts the jurisdiction of the High Court over a claim founded on negligence and mis-delivery of goods
It does not. Section 62(2)(a) and (b) contains a negligence exception, and Section 22 imposes liability for loss occasioned by mis-delivery caused by want of reasonable foresight and care. The claim, being founded on negligence, lies outside Section 62 and within the High Court's jurisdiction.
The court examined prior decisions holding that Section 62 ousts jurisdiction and distinguished them because they did not consider the negligence exception in Section 62(2)(a) and (b) nor the relationship between Sections 22 and 62. Section 22 imposes liability for mis-delivery caused by want of reasonable foresight and care, while Section 62 governs compensation for damage arising from the exercise of powers under Sections 12, 14, 15 and 16. A negligence claim falls within the exception, so the arbitration route does not apply.
Whether Section 62 should be interpreted as a carte blanche shielding the Authority from liability
No. Section 62 should be interpreted to enhance efficiency in port management and expeditious dispute resolution, not to deny access to the courts or escape liability from the common law duty of care.
The court reasoned that access to justice under Article 48 is a fundamental right that cannot be derogated from, and that ADR such as arbitration, while crucial for expeditious disposal of disputes, is inferior to the principle of access to justice. Section 62 was therefore not aimed at shielding the Authority from liability arising from negligence, and should be applied purposively rather than as an absolute ouster of judicial jurisdiction.
The appellate court's approach on a first appeal
A first appellate court has jurisdiction to review the evidence to determine whether the conclusion originally reached should stand.
Relying on the long-standing guidance in Peters v Sunday Post Ltd, the court confirmed that as a first appeal it may review the evidence and conclusions below. It applied that framework in analysing the High Court ruling on jurisdiction before affirming the judge's conclusion that the High Court had jurisdiction.
Legal principles established
#- Section 62 of the Kenya Ports Authority Act does not oust the High Court's jurisdiction over claims founded on negligence; the negligence exception in Section 62(2)(a) and (b), read with Section 22, leaves mis-delivery and want-of-care claims within the High Court's jurisdiction.
- A statutory ouster clause should not be interpreted so as to impede access to justice, and ADR mechanisms are subordinate to the constitutional right of access to justice.
- Memoranda of appeal should be crafted precisely, concisely and briefly; repetitive grounds that obscure the key issue are deprecated.
Court orders
#- 1.The appeal is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Mombasa
- HCCC No. 28 of 2010
- Jurisdiction invoked
- First appeal under the Court of Appeal's appellate jurisdiction over the High Court ruling of 16 February 2012 (Constitution of Kenya 2010, Article 164)
Relief refused
#Appellant's prayer that the High Court ruling be reversed and the plaint be struck out for want of jurisdiction under Section 62 of the KPA Act
Section 62(2)(a) and (b) contains a negligence exception, and the claim was founded on negligence and want of care, which does not fall within the Section 62 arbitration scheme
Costs
The appeal was dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Convinced that Section 22 of the KPA Act impose liability for mis-delivery of goods and satisfied that Section 62(2)(a) and (b) of the KPA Act creates a negligence exception, we find the learned judge did not err in his determination that the High Court had jurisdiction to entertain, hear and determine the respondent’s claim which is founded on negligence and want of care on the part of the appellant and or its employees
access to justice as enshrined in Article 48 of the Constitution is a fundamental right, that cannot be derogated from. Whereas Alternative Dispute Resolution (ADR), such as arbitration, is crucial in expeditious disposal of disputes, by its very nature ADR is inferior to the principle of access to justice
The Section is not a carte blanche to escape liability from common law duty of care
The upshot is that this appeal has no merit and is hereby dismissed with costs
Issues in the judgment
#The judgment's own holdings on access to justice conflict internally with one of its quoted authorities on Section 62; the court distinguishes but does not reconcile with KPA -v- Modern Holdings which stated that courts have 'consistently and unanimously construed section 62 aforesaid, in a long line of cases to deny the court's jurisdiction'.
The judgment quotes Section 62(2) verbatim in paragraph 9, where subsection (2)(b) reads 'or any damage suffered as a result of the user of any works authorized under this Act unless such damage results from negligence in such user', but in the analysis (paragraph 29) paraphrases the exceptions loosely as 'entitled to compensation for any damage suffered through negligence or damages entitled otherwise than through the provisions of the Kenya Ports Authority Act'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Ports Authority v Threeways Shipping Services (K) Limited [2019] KECA 472 (KLR)", Case Analysis (2019). Civil Appeal No. 18 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/472/eng@2019-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.