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Summary:

The case of the Katana Charo Mkare and others vs. the Owners of the MAAB Aqua 2 and another involved an interesting jurisdictional issue in an admiralty claim. The Owners of the MAAB Aqua 2 (the 1st defendant) challenged the jurisdiction of the High Court of Kenya to determine an admiralty matter relating to a claim for crew wages, masters disbursements and repatriation costs. This challenge was based on the fact that the Constitution of Kenya had allowed Parliament to create the Employment and Labour Relations Court (the Employment Court) with the same status as the High Court to determine matters relating to employment and labour relations. The claimants on the other hand argued that the High Court was given jurisdiction by section 4 of the Judicature Act and that the Constitution gave Parliament the power to determine the jurisdiction of the Employment Court and Parliament had not granted the Employment Court jurisdiction in admiralty matters. The claimants were successful. The advocate for the claimants was Okello Kinyanjui and Company LLP.

Background:

On the 2nd of April, 2025, the claimants instituted a claim against the 1st defendant for crew wages, master’s disbursements and repatriation costs. The claimants claim not to have been paid these wages, disbursements and repatriation costs by the owners of the vessel MAAB Aqua 2 and thus asked the court to arrest the vessel. The High Court arrested the vessel and the 1st defendant, thereafter, filed an application under a certificate of urgency for the claimant’s claim to be struck out for alleged want of jurisdiction. The 1st defendant also prayed for the warrants of arrest to be lifted. The 1st defendant’s grounds for the application were that, in the view of the 1st defendant, the High Court had no jurisdiction because, according to the 1st defendant, article 165 (5) (b) of the Constitution deprived the High Court of jurisdiction in matters falling within the jurisdiction of the Employment Court. To the 1st defendant, section 7 of Schedule 6 of the Constitution required all law in force before the Constitution to be read with alterations, adaptations and qualifications necessary to bring it into conformity with the Constitution. For this preposition the 1st defendant relied on the decision of the Employment Court in Didovsky Igor and 11 others vs. International Bulk Carrier Spa and others [2015] eKLR.

The claimants, on the other hand, argued that the High Court is the only court with jurisdiction to determine admiralty matters. They based their argument on the fact that section 4 of the Judicature Act, unambiguously confers admiralty jurisdiction on the High Court and further, provides that the High Court’s admiralty jurisdiction will be exercised in the same manner and in accordance with the same procedure as the High Court of justice in England. As such, in order to understand admiralty jurisdiction in Kenya, it was necessary to understand the jurisdiction in England. The claimants argued that an in rem claim such as theirs had its origin from the concept of maritime liens which were claims that arose by operation of the law, attached on a property (such as the vessel) and travelled with the property and were carried into effect by a claim in rem. The claimants argued that a clam in rem was a claim against the res and not one in personam and it was the recognition of this distinction that made Parliament place all the other matters of jurisdiction in section 3 of the Judicature Act and place matters of admiralty jurisdiction in section 4 of the Judicature Act. The claimants argued that, under article 162 (3) of the Constitution, it was Parliament that had the power to determine the jurisdiction of the Employment Court and Parliament had not given the Employment Court admiralty jurisdiction. The claimants also argued that the decision of the Employment Court in the Didovsky Igor case was not binding on the High Court and that the repercussions of the 1st defendant’s interpretation would amount to an absurdity.

Analysis and Determination:

The High Court found itself to have jurisdiction and its reasons for so finding can be summarized as follows:-

1.     Parliament enacted section 12 of the Employment and Labour Relations Act to guide the jurisdiction of the Employment Court and in that provision Parliament did not give admiralty jurisdiction to the Employment Court.

2.     The High Court had jurisdiction by dint of section 4 of the Judicature Act, which section similarly did not grant jurisdiction to the Employment Court.

3.     Article 162 (2) (b) of the Constitution, which provides for the creation of the Employment Court must be read with article 162 (3) of the Constitution which gives Parliament the right to determine the jurisdiction of the Employment Court. Parliament had determined that jurisdiction in section 12 of the Employment and Labour Relations Act and did not confer admiralty jurisdiction on the Employment Court.

4.     The only court that has admiralty jurisdiction in Kenya is the High Court of Kenya.

5.     Since the claims before the Court were under section 20 (2) (o) and 20 (2) (p) of the Senior Courts Act, which has been imported into Kenyan law by section 4 of the Judicature Act, the claim was properly under the jurisdiction of the High Court.

6.     Jurisdiction can only flow from the Constitution or Statue and cannot be implied as the 1st defendant appeared to be arguing. In saying this the High Court, cited with approval, the Supreme Court’s decision in Macharia and another v Kenya Commercial Bank Limited and 2 others 2012KESC8 (KLR).

7.     The High Court found that no interpretation should be given to any of the provisions of the Constitution or of any statute, for that matter that would lead to absurdity.

8.     The 1st defendant’s application was therefore dismissed with costs abiding the outcome of the claim.

Our comments:

Naturally, we think the Court was correct in what it found. Jurisdiction can only flow from the Constitution or Statute, The Constitution had given Parliament the power to determine the jurisdiction of the Employment Court and Parliament, in its wisdom, did not grant admiralty jurisdiction to the Employment Court.

The decision of the High Court is available here.