Jamal Mohamed Bandira v Owners of the Motor Vessel “Nasibu” [2020] KECA 671 (KLR)
The bottom line
#Kenya's Court of Appeal scrapped a Kshs.10.29 million award after the vessel owner failed to mitigate losses and couldn't prove its damages.
What this practically means
#Executive summary
#Key legal issues
#Duty to mitigate loss following arrest of a vessel
The respondent, having been ordered to deposit Kshs.400,000 as security for release of the vessel and failing to do so, failed to mitigate its losses over 19 months; losses after the conditional release order were not attributable to the appellant
The Court traced the chronology from arrest on 10th May 2017 to judgment, showing the respondent did little to mitigate. It endorsed the Halsbury formulation and African Highland Produce on the duty to take all reasonable steps to mitigate. The respondent's own witness admitted failure to deposit the ordered security, and the respondent neither appealed the ruling nor complied with it.
Proof of special damages for repair costs
Special damages claims supported by receipts issued by the vessel's own owner to its director were fabricated and must be disallowed; invoices and proforma invoices do not prove payment
The receipts for assessment, mechanical services, security, towing and mooring were issued by Nasibu Fishing Company Limited, the vessel's owner, to its own director, DW1. The Court found these fabricated. The contract of 1st January 2018 could not prove payment of the contract sum, and per Total (Kenya) Limited v Janevams Ltd neither an invoice nor a proforma invoice amounts to a receipt evidencing payment.
Causation of the vessel's unseaworthiness
The respondent failed to show that damage to the engine and generator was occasioned by the arrest, since the ship was inoperative for about seven months before arrest for reasons unrelated to the appellant
The vessel had been arrested by police in October 2016 with the crew charged in Kilifi, an arrest unconnected to the appellant, and thereafter remained inoperative at Kilifi and Mombasa Old Port. No maintenance records were produced for that period, and it was not shown that the damage occurred between the appellant's arrest and the conditional release order less than three months later.
Proof of loss of income from hire of the vessel
The award of Kshs.400,000 per month for 19 months as loss of income lacked evidential foundation; the respondent failed to prove its counterclaim
The vessel was acquired in 2012 but no annual returns, audited accounts or receipts of hire charges were produced; DW1 admitted the vessel was chartered only about once or twice a year and that he had no documents of earnings when not on hire. Nor could compensation run beyond the conditional release order, since the respondent was obliged to mitigate by depositing the security.
Legal principles established
#- A plaintiff must take all reasonable steps to mitigate loss and cannot recover damages which he ought reasonably to have avoided
- A proforma invoice or an invoice is not proof of payment and cannot establish special damages
- A party who fails to comply with an order to deposit security for release of an arrested vessel cannot claim losses incurred after the order as damages
Court orders
#- 1.Appeal allowed
- 2.Award of Kshs.10,290,000 in favour of the respondent set aside
- 3.Each party to bear its own costs of the appeal
- On appeal from
- High Court of Kenya at Mombasa
- H.C. Admiralty Claim No. 4 of 2017
- Jurisdiction invoked
- First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction (Civil Appeal No. 23 of 2019)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jamal Mohamed Bandira v Owners of the Motor Vessel “Nasibu” [2020] KECA 671 (KLR)", Case Analysis (2020). Civil Appeal No. 23 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/671/eng@2020-05-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.