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Court of AppealDismissedCivil Appeal Nos. E078 of 2021 and E131 of 2024 (Consolidated)· [2025] KECA 891 (KLR)

Owners of Motor Vessel "Dolphin Star" v ET Timbers PTE Limited & another (Civil Appeal E131 of 2024 & E078 of 2021 (Consolidated)) [2025] KECA 891 (KLR)

Court of Appeal of Kenya
7 March 2025
23,937 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~96 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that shipowners who invoke admiralty jurisdiction cannot later deny it, and Defang Shipping must pay for breaching its carriage contract.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Laibuta, Achode and Ngenye-Macharia, JJA) heard two consolidated appeals by Defang Shipping Company Limited, registered owner of the motor vessel 'Dolphin Star'. The first appeal challenged Njoki Mwangi, J.'s ruling of 14th July 2021 declining to strike out ET Timbers PTE Limited's admiralty claim or set aside the warrant of arrest, and allowing ET Timbers to amend its Claim Form suo motu. The second challenged Kizito Magare, J.'s judgment of 24th May 2024 in which ET Timbers' claim for breach of the contract of carriage succeeded, KPA's claim for port charges was allowed, and Defang's own claim against ET Timbers was dismissed. The Court held the High Court had admiralty jurisdiction under sections 20 and 21 of the Senior Courts Act 1981: the claims arose out of an agreement relating to carriage of goods in a ship, and Defang was the 'relevant person'. Defang's jurisdictional challenge failed as it had approbated and reprobatated by invoking the same admiralty jurisdiction in its own claim and in KPA's claim. The suo motu amendment was permissible under Order 8 rule 5 of the Civil Procedure Rules and section 4(3) of the Judicature Act. The Court found no valid Time Charter existed - the hire rate was blank and no hire was paid - and that Starryway acted as Defang's agent; the vessel's deviation to load and discharge part cargo and the failure to issue Bills of Lading constituted breach. The arresting party's undertaking covered only Admiralty Marshal's fees, not port charges, for which the owner alone was liable in rem. Both appeals were dismissed with costs to the respondents and both High Court decisions were upheld.

Key legal issues

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01

Whether the High Court had admiralty jurisdiction over the three claims

Holding

The trial court had admiralty jurisdiction; the claims fell within section 20(2) of the Senior Courts Act 1981, the appellant was the 'relevant person', and its attempt to approbate and reprobate was unacceptable

Reasoning

The elements of an admiralty claim under sections 20(2) and 21(4) were present: ownership of the vessel, ownership of cargo, carriage aboard the vessel, and a contract of carriage. The appellant conceded ownership and did not deny the vessel carried the 1st respondent's cargo. Having invoked the court's admiralty jurisdiction in KPA's claim and in its own claim E005 of 2023, the appellant could not deny jurisdiction in the 1st respondent's claim. Amendment of the Claim Form suo motu under Order 8 rule 5 was properly exercised to identify the relevant person.

p. 25
02

Whether the Judge erred in allowing amendment of the Claim Form suo motu

Holding

The Judge was not at fault; the amendment lent clarity and identified the relevant person, and section 4(3) of the Judicature Act allows the High Court, in admiralty, to exercise all powers it has in other civil jurisdiction

Reasoning

Amendment of pleadings is a discretionary power liberally exercised under Order 8 rule 5(1) of the Civil Procedure Rules. Article 159(2)(d) requires justice without undue regard to technicalities, reinforced by sections 1A and 3A of the Civil Procedure Act. Section 4(3) of the Judicature Act draws no distinction between admiralty and civil jurisdiction, so the court could exercise its amendment power. The appellant suffered no prejudice, having had the opportunity to defend and cross-claim.

p. 22
03

Whether consolidation of the three claims was proper

Holding

Common questions of law or fact arose and the reliefs arose out of the same transaction or series of transactions; the Judge was not at fault in delivering a consolidated judgment

Reasoning

Claim Nos. E003 of 2023 and E005 of 2023 concerned liability for port charges and expenses accruing from the arrest of the vessel in Claim No. E003 of 2021. The absence of a formal consolidation order was a minor procedural infraction of no consequence. The appellant had ample time to file a defence to KPA's claim before the abeyance order and failed to do so; the consolidated judgment disposed of all issues in the three claims.

p. 41
04

Whether the Time Charter existed and whether Starryway was the appellant's agent

Holding

There was no valid Time Charter: the hire rate was left blank, there was no evidence of payment of hire, and the executing entities differed from the named parties; Starryway was the appellant's agent

Reasoning

A valid contract requires offer, acceptance and consideration; the hire clause was incomplete and no evidence of hire payments was tendered, so the purported Charter was not valid or complete. Email correspondence, the Certificates of Entry and the fixture recap showed Starryway signing as agent and Fairwind/Starryway acting as the appellant's commercial managers. The identity of the parties to a written contract is fundamental and must begin with the signatures and stated capacity.

p. 38
05

Whether the appellant was liable for breach of the contract of carriage

Holding

The appellant was liable: the vessel carried less than the agreed minimum cargo, carried third-party part cargo, deviated to Gabon and Mombasa contrary to the exclusive carriage contract, and failed to issue Bills of Lading as instructed by the Master

Reasoning

The Fixture Note executed by Starryway as the appellant's agent incorporated the carriage terms into the Bills of Lading. The vessel loaded 6,252.315 M3 against the agreed 6,500/6,800 M3, attracting shutout charges of US$8,780, and carried third-party machinery to Mombasa, off the direct route to Chittagong. There was no rebuttal to evidence of the deviation, and OBT received irrevocable instructions from the Master to issue Bills of Lading.

p. 40
06

Liability for port charges and the effect of the arresting party's undertaking

Holding

The 1st respondent was liable only for Admiralty Marshal's fees and expenses; the appellant alone was liable to KPA for port charges in rem

Reasoning

In admiralty practice, security for arrest is the advocate's undertaking to pay the Admiralty Marshal's fees and expenses of arrest, care, custody and release, which do not include port charges for services rendered to the vessel. Port charges are recoverable in rem against the vessel owner. KPA's claim was undefended and unappealed, so the judgment and decree in its favour stood.

p. 31

Legal principles established

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  • The High Court's admiralty jurisdiction is invoked only under sections 20 and 21 of the Senior Courts Act 1981, and a claim arising out of an agreement relating to the carriage of goods in a ship falls within section 20(2)(h); a party who invokes that jurisdiction in its own claim cannot later deny it (approbate and reprobate)
  • Actions in rem and in personam cannot be segregated into separate compartments; an action in rem presupposes a claim in personam against the relevant person who would be liable, and the identity of parties to a written contract is fundamental, going to the very existence of the contract
  • On a first appeal from the High Court, the Court of Appeal must reconsider the evidence, evaluate it itself and draw its own conclusions, though making due allowance for not having seen or heard the witnesses
  • A party to a written contract cannot lurk behind proxies or assume a false capacity ('Owners' when truly agent) to elude liability; where there is a disclosed principal, suit cannot lie against the agent alone

Court orders

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  1. 1.Civil Appeal No. E078 of 2021 and Civil Appeal No. E131 of 2024 (Consolidated) dismissed with costs to the respondents
  2. 2.The Ruling and Orders of the High Court of Kenya at Mombasa (Njoki Mwangi, J.) dated 14th July 2021 upheld
  3. 3.The Judgment and Decree of the High Court of Kenya at Mombasa (Kizito Magare, J.) delivered on 24th May 2024 upheld

Authorities

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Legislation

  • Senior Courts Act 1981 (England)Sections 20, 21, 35A
  • Judicature Act (Cap. 8)Section 4(3)
  • Civil Procedure Act (Cap. 21)Sections 1A, 3A, 100
  • Civil Procedure RulesOrder 8 rule 5; Order 11
  • Court of Appeal RulesRule 88
  • Constitution of Kenya, 2010Articles 10(2), 159(2)(d), 159(2)(e), 165(3), 165(5), 259(1)
  • English Civil Procedure Rules and Practice DirectionsRules 1.1, 3.3(4), 17.1(2); Parts 15, 58.10, 61.3(10)
  • Administration of Justice Act 1956 (England)Section 3(4)
  • High Court (Admiralty) Jurisdiction Act (Singapore)Sections 3, 4
  • Evidence ActSection 136
  • High Court (Admiralty) Rules, Legal Notice No. 8 of 1979

Cases cited (31)

  • National Union of Metal Workers of South Africa & Others v Fry's Metals (Pty) Ltd
    [2005] ZASCA 39
  • Owners of the Motor Vessel 'Lilian S' v Caltex Oil (Kenya) Ltd
    [1989] KECA 48 (KLR)
  • Ng'ati Farmers' Co-Operative Society Ltd v Ledidi & 15 Others
    [2009] KLR 331
  • Kenya Ports Authority v Kuston (Kenya) Limited
    [2009] 2 EA 212
  • Peters v Sunday Post Ltd
    [1958] E.A 424
  • Rubina Ahmed & 3 others v Guardian Bank Ltd
    [2019] eKLR
  • Elijah Kipngeno Arap Bii v Kenya Commercial Bank Limited
    [2013] eKLR
  • Joseph Ochieng & 2 Others v First National Bank of Chicago
    Civil Appeal No. 149 of 1991
  • I Congreso del Partido
    [1978] 1 All ER 1169
  • Republic of India and others v India Steamship Company Limited (The Indian Grace (No. 2))
    (1996) 2 Lloyd's L.R 12
  • The St Elefterio
    [1957] 1 P 179
  • The 'Bunga Melati 5'
    [2012] SGCA 46
  • Evans v Bartlam
    (1937) 2 ALL ER 649
  • Banque De Moscou v Kindersley
    (1950) 2 ALL ER 549
  • Ahmed Zain Mohammed v Zain Ahmed Zain & 4 Others
    [2003] eKLR
  • Pascal Otieno Amoke v Abigael Ayuma Osotsi
    [2021] eKLR
  • Law Society of Kenya v Centre For Human Rights & Democracy & 12 Others
    [2014] eKLR
  • Nyati Security Guards & Services Ltd v Municipal Council of Mombasa
    [2004] eKLR
  • Korean United Church Of Kenya & 3 Others v Seng Ha Sang
    [2014] eKLR
  • Parkar & another v NQ & 2 others
    [2023] KECA 908 (KLR)
  • Arjun Pandit Rao Khotkar v Kailash Kushanrao Gorantyal & Others
    [2020] 7 SCR 180
  • Charles Mwirigi Miriti v Thananga Tea Growers Sacco Ltd & another
    [2014] KECA 538 (KLR)
  • A/S Tankexpress v Compagnie Financiere Belge des Petroles
    [1949] AC 76
  • Humble v Hunter
    (1848) 116 ER 885
  • Fred Drughorn Ltd v Rederiaktiebolaget Transatlantic
    [1919] AC 203
  • The Starsin
    [2004] 1 AC 715
  • Navig8 Inc v South Vigour Shipping Inc
    [2015] EWHC 32 (Comm)
  • Young v Schuler
    (1883) 11 QBD 651
  • The Astyanax
    [1985] 2 Lloyd's Rep. 109
  • O/Y Wasa Steamship Co. Ltd. v and NV Stoomschip Hannah v Newspaper Pulp & Wood Export Ltd.
    (1949) 82 Lloyd's List Rep. 936
  • The Jarguh Sarwit
On appeal from
High Court of Kenya at Mombasa
Admiralty Cause Nos. E003 of 2021, E003 of 2023 and E005 of 2023 (consolidated)
Jurisdiction invoked
First appellate jurisdiction of the Court of Appeal under the Constitution and the Court of Appeal Rules; the admiralty jurisdiction of the High Court was invoked under sections 20 and 21 of the Senior Courts Act 1981 and Article 165(3) of the Constitution

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, "Owners of Motor Vessel "Dolphin Star" v ET Timbers PTE Limited & another (Civil Appeal E131 of 2024 & E078 of 2021 (Consolidated)) [2025] KECA 891 (KLR)", Case Analysis (2025). Civil Appeal Nos. E078 of 2021 and E131 of 2024 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/891/eng@2025-03-07

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