Jeanviar c/o Comid v Maersk Kenya Limited & another (Commercial Case E083 of 2025) [2026] KEHC 12489 (KLR) (4 June 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MOMBASA** **HCCOMM N0.E 083 OF 2025** **SAFARI AMULI JEANVIAR C/O COMID..…..…………APPELLANT** **VERSUS** **MAERSK KENYA LIMITED………………………..1ST RESPONDENT** **KAMA METAL LIMITED LLC…………………….2ND RESPONDENT** **RULING** Before me are 2 applications by way of Notice of Motion and a Notice of Preliminary Objection. The application dated 19.12.2025 has been filed by the plaintiff and the Notice of Preliminary Objection dated 26.1.2026 has been filed by the 2nd respondent. The other application dated 27.1.2026 has been filed by the 1st respondent. In the application dated 19.12.2025 the plaintiff prays that that a temporary injunction be issued restraining the 1st Defendantin Malaysia, whether by itself, its servants, agents, or assigns, from releasing, clearing, delivering, or in any manner whatsoever dealing with the cargo contained in Container Numbers FTAU2073074, STJU2027798, and SEKU1646724 pending the hearing and determination of the main suit. The plaintiff also prays the 1st Defendant in Malaysia be directed not to release the cargo contained in Container Numbers FTAU2073074, STJU2027798, and SEKU1646724 to the 2nd Defendant pending the hearing and determination of the main suit. The plaintiff’s application is based on the following grounds: 1. That the Plaintiff is the shipper and the unpaid seller of the of the subject cargo currently lying at the Port of Malaysia. 2. That the 2nd Defendant, who is the named consignee of the cargo, has failed, refused, and/or neglected to pay the agreed purchase price of USD 2,200,000. 3. THAT the 2nd Defendant has only paid USD 600,000 leaving an outstanding balance of USD 1,600,000 4. THAT the cargo is currently held by the 1st Defendant in Malaysia and is liable to be released to the 2nd Defendant any time. 5. THAT unless restrained by this Honourable Court, the 1st Defendant in Malaysia may release the cargo to the 2nd Defendant thereby defeating the Plaintiffs claim and occasioning irreparable loss. 6. THAT it is in the interest of justice that the orders sought herein be granted. The application is also supported by the affidavit of the plaintiff. In his affidavit the plaintiff averred he shipped cargo to the 2nd Defendant as consignee (attached copy of agreement marked "A"). That plaintiff, further, stated that the agreed purchase price was 2,200,000 USD and that the 2nd Defendant has not paid the balance of 1,600,000 USD despite demand. The plaintiff also stated that the subject cargo is at the Port of Malaysia awaiting clearance and that the 2nd Defendant already has the original Bill of Lading and may collect the cargo at any time unless restrained. In response, the 2nd defendant through its notice of preliminary objection urges that the plaintiif’s Notice of Motion and entire suit should be be struck out *in limine*, onthe following key grounds**:** 1. That the honourable court lacks jurisdiction to hear and determine this suit by reason of an existing binding arbitration agreement in the agreement for sale dated 8th September 2025. 2. That the 2nd Defendant is a company incorporated in the UAE, and no permission to serve the summons out of the jurisdiction on them has been sought or obtained, and the summons have not been served on them. 3. That the Plaintiff is not a party to the subject bill of lading herein dated 7th October 2025 bearing the number 259151254 (containing an exclusive English jurisdiction and law clause), nor is the 1st Defendant. Further, that the 1st Defendant does not have the possession or control over the cargo, presently lying in Penang, Malaysia (a foreign jurisdiction). Accordingly, the court lacks territorial jurisdiction in the circumstances. 4. That the suit is secondarily against the 2nd Defendant as a party interested in the subject cargo, relying on the sale and purchase agreement dated 8th September 2025 between COMID and Hillside Mining Company Limited (or Hillside Mining Company). Neither the Plaintiff nor the 2nd Defendant is a party to the said agreement, the 2nd defendant avers and accordingly, neither the Plaintiff has the *locus standi* to bring any suit to enforce the agreement, nor is the 1st Defendant liable on the agreement, by virtue of the doctrine of privity of contract. 5. In any event, the 2nd defendant avers, the honourable court lacks territorial jurisdiction over the subject matter, the subject goods being located in Penang, Malaysia (a foreign jurisdiction) as correctly pleaded in the suit. In the application dated 27.1.2026 the 1st Defendant prays the plaint herein dated 19.12.2025 (amended vide amended plaint dated 29.4.2026) be struck out as against the 1st Defendant. The applicant also prays that the cost of the suit and the cost of the application be awarded to the 1st defendant. The 1st Defendant’s application is based on the ground that this Honourable Court lacks jurisdiction to hear and determine this matter. The application is also supported by the affidavit of Fatuma Ndung’u Muiruri, the Head of Legal of East Africa Area of the 1st Defendant sworn on 27th January, 2026. In her affidavit the Legal Officer stated that sometime in September, 2025, the plaintiff issued the 1st Defendant with shipping instructions for shipping a consignment from the port of Mombasa to the port of Penang in Malaysia. The consignment, the deponent stated, was loaded in containers numbers FTAU2073074, STJU2027798 and SEKU1646724 and the 1st Defendant issued the plaintiff a bill of lading number MAEU 259151254 dated 29.9.2025(attached copy of bill of lading and the terms of carriage marked “ FNM-1”.) Clause 26 of the aforesaid bill of lading, the 1st Defendant Legal Officer pointed out, provides as follows: **“For shipments to and from the US any dispute relating to this bill of lading shall be governed by US law and the United States Federal Law Court of Southern District of New York is to have exclusive jurisdiction to hear all disputes thereof. In all other cases, this bill of lading shall be governed by and construed in accordance with English Law and all disputes shall be governed by and construed in accordance with English Law and all disputes shall be determined by determined by the English High Court of Justice in London to exclusion of the Court of another country. Alternatively and at the carrier’s sole option, the courier may commence proceedings against the merchant at a competent court of a place of business of the merchant.’’** The Legal Officer, further, revealed that the 2nd defendant in this case has filed a claim against Maersk A/S and Maersk Malasyia in the English Court of Justice and London seeking among others, an order that Maersk A/S and Maersk Malasyia deliver the goods to the 2nd defendant upon presentation of the original bill of lading (Copy of the claim is at page 4 to 6 of the deponent’s exhibits. In response, the plaintiff vide his affidavit sworn on 26th April, 2026 stated that this Honourable Court has jurisdiction as the cause of action arose within Kenya. The plaintiff also stated that 1st Defendant operates and carries on business within Kenya and that the 1st Defendant issued the subject Bill of Lading and shipping instructions within Kenya and is, therefore, properly subject to this Court's jurisdiction. Clause 26 relied upon by the 1st Defendant, plaintiff further stated, does not absolutely oust the jurisdiction of this Honourable Court.The said clause, plaintiff stated, expressly allows the carrier to institute proceedings in any competent court, thereby acknowledging the existence of concurrent jurisdiction. In his submissions, the Plaintiff submitted that that the 2nd defendant Preliminary Objection is misconceived, incompetent, and does not meet the threshold of a valid preliminary objection as established in **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696**. In this regard the plaintiff Counsel submitted that a preliminary objection: must raise a pure point of law; must be argued on the assumption that all pleaded facts are correct; and must not require evidence or ascertainment of contested facts. Where facts are disputed, or documents require interpretation, the plaintiff’s Counsel submitted, the objection fails outright (**See.Oraro v Mbaja [2005] eKLR**). In respect to alleged Arbitration Clause in the sale agreement dated 8th September 2025 the Plaintiff averred that he is not a party to the said agreement and therefore not privy to the arbitration clause relied upon. Whether the Plaintiff is bound by the arbitration clause, the plaintiff submitted, is a factual and evidentiary matter, not a pure point of law. The objection that the 2nd Defendant is incorporated in the UAE and was not served with leave is, the plaintiff submitted, is procedural; curable; and incapable of disposing of the suit. In this regard, Counsel for the plaintiff submitted that defects in service do not go to jurisdiction and cannot be the basis of striking out a suit (**See**.**Equity Bank Ltd v Bruce Mutie Mutuku [2016]** **eKLR)**. In respect to the Bill of Lading and Exclusive English Jurisdiction, the plaintiff contended that is not suing under the Bill of Lading, but under unpaid seller's rights; proprietary and equitable interests in the cargo; and commercial arrangements pleaded in the Plaint. Whether the Bill of Lading binds the Plaintiff or the Defendants the plaintiff submitted requires production and interpretation of documents; and cannot be resolved at a preliminary stage. On Locus Standi and Privity of Contract, the Plaintiff submitted that he has pleaded that he is the shipper; and the unpaid seller of the cargo. Locus standi is, therefore, the plaintiff submitted is pleaded and demonstrated. Privity of contract, the plaintiff contended, does not defeat claims founded on proprietary interest; trust; bailment; or unpaid seller's rights under commercial law. On territorial jurisdiction and location of goods, the plaintiff’s submitted that the mere fact that the subject cargo herein is presently in Malaysia does not oust the jurisdiction of this court. In this regard, the plaintiff contended that the dispute concerns a Kenyan pplaintiff and contractual arrangements negotiated and breached within Kenya. In support of his application dated 19th December 2025, the plaintiff submitted that he has demonstrated that the agreed purchase price of the subject cargo herein was USD 2.2 million out of which only USD 600,000 has been paid and the balance of USD 1.6 million remains outstanding. The Plaintiff, further, submitted that he retains unpaid seller's rights over the cargo and that, therefore, has established a *prima facie* case. The plaintiff also submitted that he suffers risk of irreparable harm. In this regard, the plaintiff submitted that since the 2nd Defendant holds the original Bill of Lading of the subject cargo herein; the cargo may be collected and cleared at any time. Once the cargo is released, the plaintiff contended, his claim will be defeated. The plaintiff also submitted that mmonetary compensation will not adequately remedy loss of proprietary rights in the cargo. On balance of convenience, the plaintiff submitted the subject cargo herein is already warehoused and preserved. In this regard, granting interim orders by the Court, the plaintiff submitted, maintains the status quo and refusing the orders exposes him to total loss. In its submissions, the 2nd plaintiff stated that the plaintiff’s case, as pleaded by him in the Plaint, is for detention of the subject cargo to enable him to recover an alleged balance of the contract price. In support of his case, the 2nd defendant submitted, the Plaintiff has produced a sales agreement which clearly does not have the plaintiff as a party. The sale agreement, on its face was entered into between COMID (as seller) and Hillside Mining Company LLC (as buyer). The Plaintiff is only named therein, the 2nd defendant stated, as a representative of the seller, COMID. It was, therefore, the 2nd defendant’s submission that the fact that the Plaintiff is named as a represenative does not make him a party to the agreement, nor does it vest any rights of the seller in him. In light of the above assertions, Counsel for the 2nd Defendant submitted that a contract creates rights and obligations only between the contracting parties, and no other person can seek to enforce it other than the contracting parties, nor against a non-party. To support this position Counsel relied on the **Mark Otanga Otiende v Dennis Oduor Aduol [2021] eKLR**, in which the court held: **“In its classical adaptation, the doctrine of privity of contract hypothesizes that a contract cannot confer rights or impose obligations on any person other than the parties to the contract. Accordingly, a contract cannot be enforced either by or against a third party.”** Counsel also relied on the cases of **Agricultural Finance Corporation v Lengetia, (1985) KLR 765** in which the Court that: **“As a general rule a contract affects only the parties to it, it cannot be enforced by or against a person who is not a party, even if the contract is made for his benefit and purports to give him the right to sue or to make him liable upon it. The fact that a person who is a stranger to the consideration of a contract stands in such near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration does not entitle him to sue (or be sued) upon the contract.”** Even if the Plaintiff were to base his case on the bill of lading, which is a contract where the 2nd Defendant is the named consignee, 2nd defendant submitted, it does not confer upon the Plaintiff any contractual rights. The Plaintiff, therefore, the 2nd defendant submitted lacks *locus standi* to enforce the contractual rights under both the bill of lading and the agreement for sale. In respect to service of summons, the 2nd respondent pointed that it is not in contest that the 2nd Defendant is not a resident of Kenya and does not have an address of service within the jurisdiction of the court.Order 5 Rule 21 of the Civil Procedure Rules dictates that where a defendant does not have an address within the court’s jurisdiction, the 2nd defendant pointed out, leave must be sought by the plaintiff for service abroad upon the 2nd Defendant. The purpose of Order 5 Rule 21 was explained by the court in court in **Raytheon Aircraft Credit Corporation & another v Air Al-Faraj Limited (2005) eKLR** cited in **Misnak International (UK) Limited v 4MB Mining Limited C/O Ministry of Mining Juba Republic of South Sudan & 3 others [2019] eKLR**, the 2nd defendant submitted, in which it was held that: **“The High Court assumes jurisdiction over persons outside Kenya by giving leave, on application by a plaintiff to serve summons or notice of summons, as the case may be, outside the country .... after such summons are served in accordance with the machinery stipulated therein…** **…** **I agree with the Respondent’s counsel that a court can only assume jurisdiction over a foreigner by granting leave for service of the summons outside its jurisdiction. In the present case, the Petitioner did not seek such leave noting that the sole purposes of seeking leave is to enable the court to weigh the reasons adduced by the petitioner and determine whether a proper case has been made out to warrant service of summons outside its jurisdiction.”** The 2nd defendant, therefore, submitted that this Honourable Court has no jurisdiction over the 2nd Defendant, until leave is granted and proper service of summons abroad effected. In respect to the territorial jurisdiction over the subject goods herein, the 2nd defendant pointed out that the plaintiff correctly pleaded that the goods left the jurisdiction of the court, lawfully, and have been delivered to the destination port in Malaysia.The 2nd defendant, therefore, submitted that it is not legally tenable for the Honourable Court to issue orders over goods that are not within its jurisdiction, and orders which the honourable court cannot supervise. On exclusive jurisdiction of English Courts under the subject Bill of Lading herein, the 2nd defendant pointed outthe bill of lading clearly stipulates that all disputes arising thereunder must be submitted for determination by the High Court in London. It is not within the jurisdiction of the court, the 2nd defendant submitted, to rewrite that contract and displace the parties’ agreement. The 2nd defendant, further, submitted that there is no dispute that the sale agreement presented by the Plaintiff as the basis of seeking recovery of the goods contains an express arbitration clause. It is a settled principle, the 2nd defendant submitted, that where parties have agreed to submit disputes to arbitration, the Court ought to give effect to that agreement unless valid grounds are shown for departure. On this point the 2nd defendant relied on the celebrated decision in **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696**.In the case it was held that a preliminary objection could be based on a plea that there exists an arbitration agreement ousting the jurisdiction of the court in the circumstances. In its submissions, the 1st Defendant pointed out that a bill of lading is the written evidence of a contract for the carriage and delivery of goods, sent by sea for certain freight, as was held in **Fredrick Njora Mwangi v Wilhelmsen Ships Services Limited & 2 others [2017] KEHC 2561 (KLR)** There is no dispute, the 1st Defendant submitted, that sometime in September 2025, the plaintiff issued the the defendant with shipping instructions for shipment of a consignment from the Port of Mombasa to the Port of Penang in Malaysia. The consignment was loaded in container numbers FTAU2073074, STJU2027798 and SEKUI 646724, the 1st defendant stated, was issued the plaintiff with a bill of lading number MAEU 259151254 dated September 2025.The relationship between the parties,1st defendant further, submitted, was governed by the bill of lading and the terms of carriage under it. Clause 26 of the terms of carriage (page 3 of the exhibit marked "FNM-I") under the bill of lading provides as follows; "**For shipments to or from the US any dispute relating to this bill of lading shall be governed by US law and the United States Federal Court of the Southern District of New York is to have exclusive jurisdiction to hear all disputes in respect thereof In all other cases, this bill of lading shall be governed by and construed in accordance with English law and all disputes arising hereunder shall be determined by the English High Court of Justice in London to the exclusion of the jurisdiction of the courts of another country.** **Alternatively and at the carrier's sole option, the carrier may commence proceedings against the merchant at a competent court of a place of business of the merchant**. The Court of Appeal, the 1st Defendant pointed out in **Evergreen Marine (Singapore), PTE Limited & Gulf BadarGroup (Kenya) Limited v Petra Development Services Limited [20161 KECA 260 (KLR)** held as follows; "**As a general rule, where parties themselves choose the law to be applied in their contractual relationship and give exclusive jurisdiction to courts other than those in Kernya, such a decision must be respected by local courts, unless the party suing in the noncontractual forum discharges the burden cast on him o/showing a strong reason or suing in that forum**. **See United India Insurance Company Ltd v East African Underwriters (K) Ltd (1985) KLR 898 where Madan, JA (as he then was) explained that;** "**The Courts in this country have a discretion to assume jurisdiction over an agreement which is made to be performed in Kenya notwithstanding a clause therein conferring jurisdiction. Clauses however should normally be respected because the parties themselves freely fixed the forums for the settlement of their disputes; the court should carry out the intention of the parties and enforce the agreement made by them in accordance with the principle that a contractual undertaking should be honoured unless there is strong reason for not keeping them bound by their agreement.** **'Everybody accepts that the general rule is that the jurisdiction clause must be obeyed. There must be something exceptional to justify departure from it and the exceptional circumstances must be such as to afford strong reason for such departure. ** **** **Per Cairn, LJ in Makefjell (1976) 2 Lloyd's Law Reports, 29"** The Court of Appeal, the 1st defendant also submitted in **Areva T & D India Lmited v Priority Electrical Engineers Another [20121 KECA 258 (KLR)** relied on **Makefjell [1976] 2 Lloyds Reports 2** where it was held; " **... Once the general rule is accepted that parties who have agreed to the exclusive jurisdiction of a foreign court should be held to their bargain, any departure from that rule must of necessity be regarded as to that extent exceptional, and the only question can be whether the case is so exceptional as to justify holding that there is strong reason for departing from the rule.’’** In **Pyrotechnics Company Limited v Maersk Kenya Limited [20211 eKLR**, the 1st defendant submitted, it was held; “**The underlying position is that the exclusive jurisdiction clause should normally be respected because parties themselves freely fixed the forums for the settlement of their disputes, the court should carry out the intention of the parties and afforce the agreement made them in accordance with the principle that a contractual undertaking should be honoured unless there is a strong reason for not keeping them bound by their agreement.** " The parties expressly, the 1st Defendant submitted, stated that any dispute arising under the contract shall be determined by the English High Court of Justice in London to the exclusion of the jurisdiction of the courts of another country and thus ousting the jurisdiction of this court to determine disputes arising from the bill of lading. By filing this suit, the 1st Defendant submitted, the plaintiff is attempting to disregard the terms of the contract which give the jurisdiction for determination of any dispute to the English High Court of Justice in London. The Plaintiff, the 1st defendant further submitted, has not discharged the burden cast on it to justify the reason for suing in the Kenyan courts as opposed to the contractually agreed forum, the English High Court of Justice in London. The 1st respondent, therefore urged this Court to strike out the plaint dated 19th December 2025 as against the Ist defendant with costs. The issues for determination by this Court in this matter are: 1. Whether the the 2nd defendant’s preliminary objection is competent 2. Whether the Honourable court has jurisdiction to handle this matter 3. Whether the plaintiff’s application dated 19.12.2025 for temporary is merited In his submissions, the Plaintiff submitted that that the 2nd defendant Preliminary Objection is misconceived and incompetent is it does not meet the threshold of a valid preliminary objection as enunciated in **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696**. In this regard the plaintiff pointed out that a preliminary objection must raise a pure point of law and must be argued on the assumption that all pleaded facts are correct; and must not require evidence or ascertainment of contested facts. Where facts are disputed, or documents require interpretation, the the objection fails outright (**See.Oraro v Mbaja case(supra)** In this regard, the plaintiff submitted the 2nd defendant’s preliminary objection herein raises triable issues for determination at a trial. The Court concurs with the plaintiff’s submissions that the 2nd defendant’s objections are fact-driven and unsuitable for a preliminary objection. The objections raised by the 2nd respondent, which are contested by the plaintiff relate to various grounds including privity of contract, *locus standi* and the existence and nature of arbitration clause in the parties suit agreement. It is, therefore, the Court’s finding the 2nd defendant’s preliminary objection is incompetent and the same is struck out In Clause 26 of the terms of carriage (page 3 of the exhibit marked "FNM-I") under the subject bill of lading the parties expressly stated that any dispute arising under the subject contract shall be determined by the English High Court of Justice in London to the exclusion of the jurisdiction of the courts of another country and thus ousting the jurisdiction of this court to determine disputes arising from the bill of lading. The bill of lading is foundation of the cause of action herein. The Court, therefore, agrees with the 1st defendant, by filing this suit the plaintiff is attempting to disregard the terms of the contract which give the jurisdiction for determination of any dispute to the English High Court of Justice in London. It is also my finding that the plaintiff has not discharged the burden cast on it to justify the reason for suing in the Kenyan courts as opposed to the contractually agreed forum, the English High Court of Justice in London. The upshot of my findings above is that this Court lacks jurisdiction to determine the matter and down its tools as held in **Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] eKLR**. Inthe case the Court of Appeal stated: "**Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction**." This suit is, therefore, struck out with costs to the 1st Defendant. **Dated signed and virtually delivered virtually via Microsoft teams this 4th day June 2026** **HON. P.K. ROTICH** **JUDGE**