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Summary

In a somewhat interesting admiralty matter arising out of Kenya, i.e., Skytrade Global Enterprises Limited v Owners of Motor Vessel Mt R Ocean & 2 others the defendants sought to set aside a warrant of arrest issued against the R Ocean, to release the vessel, and to strike out the claim on the basis that the Court lacked jurisdiction to hear and determine the suit.

Background

The first application was dated 18/9/2024. It was brought by the defendants under Part 11 and Rule 61.8(4) (b) of the English Civil Procedure Rules (which rules are applicable in Kenya) seeking orders to set aside the warrant of arrest issued by this court on 2/9/2024 against motor vessel MT ‘R Ocean (herein the vessel) and to release the vessel and orders to strike out the claim on grounds that the court lacked jurisdiction to hear and determine the suit.

The second application was dated 11/10/2024. It was brought by the claimant under articles 2(5) & 6, 10, 25(d) & 50 of the Constitution, Section 80 of the Civil Procedure Act, and Orders 45(1) & Order 51 Rule 1 of the Civil Procedure Rules and the orders sought in that application were that the Court be pleased to vary, review and/or set aside the ruling dated 9/10/2024 and all consequential orders, where the claimant contended that the order sought to be reviewed authorized issuance of a Bank guarantee of USD 400,000 as a security to replace the vessel despite that vide the claimant’s replying affidavit dated 4/10/2024, it was pleaded that only a security of USD 800,000 could cover the vessel. The claimant argued that the security amount should be increased to USD 800,000 due to ongoing losses.

Ruling of the Court:

1. First Application (Dated 18/9/2024):

The court found that the claim fell under Section 20(2)(h) and (k) of the Senior Courts Act, which covers claims related to the hire of a ship and carriage of goods. The court also determined that the claim in rem was properly brought against the owners and managers of the vessel. Therefore, the court had jurisdiction, and the warrant of arrest could not be set aside on jurisdictional grounds.

• Second Application (Dated 11/10/2024):

The court held that the issue of security was within its discretion and that the claimant’s dissatisfaction with the amount ordered was not a valid ground for review. The court emphasized that such a complaint should be addressed through an appeal, not a review. The application for review was dismissed.

• Final Orders:
  • Both applications (dated 18/9/2024 and 11/10/2024) were dismissed.

• Each party was ordered to bear its own costs.

Conclusion:
The court upheld its jurisdiction over the admiralty claim and dismissed both the defendants’ application to set aside the warrant of arrest and the claimant’s application to review the security amount. The matter may proceed to trial on the merits of the claim.

Comments:
The court showed that it was ready to get on with the matter and upheld its jurisdiction in the admiralty claim. An interesting note, though is that Kenya applies, with very few exceptions, the admiralty law of England. There is absolutely nothing wrong with that, since established maritime jurisdictions do the same. However, because it is anticipated that there will be more ship arrests in future in Kenya, it may be time for Kenya to consider acceding to the International Convention Relating to The Arrest of Seagoing Ships, 1952 (the Arrest Convention, 1952) or, more importantly, the International Convention on Arrest of Ships, 1999 (Arrest Convention). Both conventions aim to unify maritime law and enhance legal certainty, but the 1999 convention offers a more modern and inclusive approach.

The court was also correct in saying that a person aggrieved by its orders regarding the amount of security should take that issue to the Court of Appeal. The amount of security is squarely within the discretion of the Court.

The decision is available here.