Starryway Trading & Shipping Company Ltd v Et Timbers Pte Limited & 1 other
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the trial judge's discretion in refusing joinder was properly exercised
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.
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.
Conditions for joinder of a party to in rem proceedings
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.
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.
Joinder as a device to stay proceedings pending arbitration
Joinder cannot be used to stagnate proceedings where the joining party has no claim in the suit; the appellant's object was collateral.
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
#- 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
#- 1.The appeal is dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.