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Court of AppealPartially AllowedAdmiralty Appeal (Court of Appeal, Mombasa)· [2024] KECA 1165 (KLR)

Shipmarc Agency & Logistics Limited v The Owners of the Motor Vessel “Tanya” (Civil Appeal E026 of 2022) [2024] KECA 1165 (KLR)

Court of Appeal of Kenya
20 September 2024
3,154 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that ship arrest disputes involving contested facts about vessel ownership must be decided at trial, not struck out early on affidavit evidence.

What this practically means

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Executive summary

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The appellant, Shipmarc Agency & Logistics Limited, brought a claim in rem against the Owners of the Motor Vessel 'Tanya' for USD 293,881.62 allegedly due for goods, services and hire. Its 2018 claim and arrest warrant were set aside by Otieno, J. because the declaration named Mr Yoni Bendas as the relevant person although he was not the vessel's owner. The appellant then filed a second claim in rem, Admiralty Claim No. 3 of 2020, for USD 728,705.01, naming Benmar Marine Limited as the relevant person, and obtained a fresh arrest warrant. The respondent applied to strike out the claim as res judicata and an abuse of process, while the appellant sought summary judgment. By a ruling dated 24th September 2021, Chepkwony, J. held res judicata inapplicable because the first claim had not been determined on the merits, but found that the appellant had not established Benmar Marine Limited's privity to the email negotiations with Bendas, struck out the claim and set aside the warrant. The Court of Appeal allowed the appeal, holding that the jurisdictional challenge turned on substantive issues of law and fact - ownership, control and authority - unsuitable for determination on affidavit evidence at an interlocutory stage, adopting Vostok Shipping, I Congreso del Partido and The Bunga Melati 5. It set aside the ruling and remitted the claim for hearing on the merits by a different judge, with costs of the appeal to the appellant.

Key legal issues

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01

Invocation of admiralty in rem jurisdiction and the capacity of the relevant person

Holding

Whether the person named as the relevant person was the owner, charterer, or in possession or control of the vessel when the claim arose, and whether he was beneficial owner of all shares, are substantive issues of law and fact requiring trial.

Reasoning

The Court identified three competing factual questions: the identity of the person liable in personam, his ownership, charterership, possession or control of the vessel when the claim arose, and whether he was beneficial owner of all shares in the ship. These questions go to the proper invocation of the High Court's admiralty jurisdiction under section 4 of the Judicature Act, exercisable in accordance with English practice, and cannot be resolved on unilateral assertions in a claim form contested by the defendant.

p. 4
02

Whether a claim form and arrest warrant may be struck out at an interlocutory stage on disputed facts

Holding

A trial court errs in striking out an admiralty claim and setting aside an arrest warrant on contested affidavit evidence; a trial of the jurisdictional issue is required if the defendant seeks a conclusive finding of fact.

Reasoning

Relying on Vostok Shipping, I Congreso del Partido and The Bunga Melati 5, the Court endorsed the approach that where a jurisdictional challenge depends on disputed facts, the court must conduct a trial of the issue at the interlocutory stage if the defendant seeks a conclusive finding, and that factual disputes cannot be conclusively decided on contested affidavit evidence alone. Chepkwony, J.'s reliance on unilateral claim-form assertions, absent evidence of Yoni Bendas' authority or directorship, was misplaced.

p. 6

Legal principles established

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  • Admiralty jurisdictional challenges involving disputed questions of fact, such as ownership or control of the vessel, cannot be conclusively determined on affidavit evidence at the interlocutory stage; they must be determined on evidence at the trial.
  • Determining the linkage between the person named in the declaration as owner and the person liable in personam requires evidentiary inquiry, as it forms the basis upon which the court's in rem jurisdiction is invoked and exercised.

Court orders

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  1. 1.The Ruling and Orders of the High Court of Kenya at Mombasa (D. Chepkwony, J.) dated 24th September 2021 be set aside
  2. 2.The appellant's Admiralty Claim No. 3 of 2020 and any related application remaining undetermined be remitted for full hearing and determination on its merits by a Judge other than P. J. O. Otieno, J. and D. Chepkwony, J.
  3. 3.The costs of the appeal be borne by the respondent
On appeal from
High Court of Kenya at Mombasa
Admiralty Claim No. 3 of 2020 (arising from Admiralty Cause No. 1 of 2018)
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over the High Court's admiralty jurisdiction under section 4 of the Judicature Act (Cap. 8)

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, "Shipmarc Agency & Logistics Limited v The Owners of the Motor Vessel “Tanya” (Civil Appeal E026 of 2022) [2024] KECA 1165 (KLR)", Case Analysis (2024). Admiralty Appeal (Court of Appeal, Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1165/eng@2024-09-20

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