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Court of AppealDismissedNot stated in the judgment as provided· [2023] KECA 1323 (KLR)

Starryway Trading & Shipping Company Ltd v Et Timbers Pte Limited & 1 other

Court of Appeal of Kenya
10 November 2023
5,877 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled a shipping company could not use joinder to an admiralty suit to stall proceedings and protect a lien pending foreign arbitration.

What this practically means

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Executive summary

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This is an appeal to the Court of Appeal at Mombasa against an interlocutory ruling of Njoki Mwangi, J delivered on March 18, 2022 in Admiralty Cause No E003 of 2021, an in rem claim by ET Timbers PTE Limited against the owners of MV Dolphin Star for about USD 2 million arising from an alleged breach of a voyage charter. The appellant, which claimed to be the disponent owner under a time charter and voyage charterer with the 1st respondent, sought to be joined as an interested party to the admiralty proceedings, to protect an alleged contractual lien over the cargo, and to stay the proceedings pending arbitration in London. The High Court dismissed the application, holding that the in rem claim and the appellant's in personam arbitration claim were not connected and that the appellant would not assist the court. The Court of Appeal, comprising Nyamweya, Lesiit and Odunga, JJA, in a single unanimous judgment, reaffirmed the practice that interlocutory appeals are decided only on a prima facie basis and applied the strict criteria for interfering with discretionary decisions: error of law or principle, irrelevant or ignored considerations, or a plainly wrong decision. Relying on Departed Asians Property Custodian Board v Jaffer Brothers and Barclays Bank v C B Patel, the court held that the appellant, against whom no claim was made in the suit, had to show a matured interest legally affected by the orders sought, and that it could not use joinder to in rem proceedings to secure collateral in personam relief or stagnate the proceedings. Part 61.8(7) of the English Civil Procedure Rules was held to be read together with Part 19.2(2). Finding no basis to fault the trial judge, the court dismissed the appeal and awarded costs of the appeal to the 1st respondent, to be borne by the appellant.

Key legal issues

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01

Whether the trial judge's discretion in refusing joinder was properly exercised

Holding

The appeal fails because the appellant showed no error of law or principle, no irrelevant or ignored considerations, and the decision was not plainly wrong.

Reasoning

The court applied the Supreme Court decision in Apungu Arthur Kibira v IEBC and the stricter criteria for appeals against discretionary decisions drawn from Kacem v Bashir. Joinder is an exercise of discretion and a case management decision; the trial judge correctly identified and applied the three conditions in Dr Donna Molavi v Guy Hibbert and found the second and third conditions unmet. Nothing was placed before the appellate court to fault that exercise.

p. 9
02

Conditions for joinder of a party to in rem proceedings

Holding

A proposed joinder party with no claim against it in the suit must show its interest had accrued or matured and that the orders sought would legally affect it, or that joinder is desirable to avoid multiplicity of suits.

Reasoning

There was no claim by the 1st respondent against the appellant, nor by the 2nd respondent against the appellant. Citing Departed Asians Property Custodian Board v Jaffer Brothers and Barclays Bank D C O v C B Patel, the court held the appellant had to show a right to relief arising out of the same transaction and a common question of law or fact, or that its presence was necessary for effectual settlement. The appellant's claim against the 1st respondent was in personam and belonged in arbitration, not in the in rem suit.

p. 8
03

Joinder as a device to stay proceedings pending arbitration

Holding

Joinder cannot be used to stagnate proceedings where the joining party has no claim in the suit; the appellant's object was collateral.

Reasoning

The appellant sought joinder solely to stay the proceedings and protect a lien in aid of the London arbitration, which was in personam against the 1st respondent, while the suit was in rem against the vessel. The court held that such use of joinder achieves collateral purposes and that the effect of joinder would be the stultification of the proceedings rather than the furtherance of the overriding objective.

Legal principles established

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  • An appellate court will not interfere with a trial court's exercise of discretion unless an error of law or principle is shown, irrelevant considerations were taken into account, a relevant consideration was ignored, or the decision is plainly wrong.
  • In interlocutory appeals an appellate court may only express its views on a prima facie basis and must not conclude the merits so as to tie the hands of the trial judge.
  • A party cannot be joined to in rem admiralty proceedings under the guise of joinder in order to obtain relief that ought to be sought in separate in personam proceedings.
  • Part 61.8(7) of the Civil Procedure Rules of England must be read together with Part 19.2(2) of the same Rules, which guide the court's discretion on joinder.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The costs of the appeal are awarded to the 1st respondent, to be borne by the appellant
On appeal from
High Court of Kenya at Mombasa
Admiralty Cause No E003 of 2021
Jurisdiction invoked
Appeal against an interlocutory decision of the High Court in admiralty proceedings, heard under the Court of Appeal Rules; specific appellate jurisdiction provision not stated in the judgment

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, "Starryway Trading & Shipping Company Ltd v Et Timbers Pte Limited & 1 other", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1323/eng@2023-11-10

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