[2004] KEHC 2193 (KLR)
The court found that the plaintiff had not satisfied the requirements for the grant of a mandatory injunction at the interlocutory stage. The trade custom relied upon was not clearly identified or proven, and such customs must be established by evidence at trial. The defendant's claim of lien for unpaid charges,...
Source-derived case information.
- Citation
- [2004] KEHC 2193 (KLR)
- Parties
- Plaintiff: Magot Freight Services Ltd; Defendant: P & O Nedlloyd East Africa Ltd
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 134 of 2003
- Procedural Posture
- Civil Case / Ruling on Interlocutory Application
- Outcome
- application dismissed with costs
- Legal Topics
- Mandatory Injunction, Lien on Goods, Bill of Lading, Trade Customs, Agency Relationships
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Magot Freight Services Ltd
Plaintiff
P & O Nedlloyd East Africa Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the plaintiff is entitled to a mandatory injunction compelling the defendant to deliver release orders for the goods in question.
- 2 Whether the defendant is liable to settle warehouse rent and demurrage charges prior to release of goods.
- 3 Whether the plaintiff, suing as agent, has proper authority and standing to bring the suit on behalf of disclosed principals.
Ratio Decidendi
The court found that the plaintiff had not satisfied the requirements for the grant of a mandatory injunction at the interlocutory stage. The trade custom relied upon was not clearly identified or proven, and such customs must be established by evidence at trial. The defendant's claim of lien for unpaid charges, including demurrage, raised triable issues that could not be resolved without a full hearing. The plaintiff's authority to sue as agent was also in question, as the powers of attorney were obtained after the suit was filed. In light of these unresolved factual and legal disputes, the court declined to grant the orders sought and dismissed the application with costs.
Court Disposition
application dismissed with costs
Orders
- The plaintiff's application is dismissed with costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA CIVIL CASE NO. 134 OF 2003
MAGOT FREIGHT SERVICES LTD…………….……….PLAINTIFF
V E R S U S
P & O NEDLLOYD EAST AFRICA LTD…………..…DEFENDANT
R U L I N G
In this case the Plaintiff filed suit as Agents of Companies claiming:-
a) Mandatory injunction compelling the Defendant to deliver to the Plaintiff the Release Orders for goods imported vide Container No. POCU 0405171.
b) General damages for loss of business. c) A refund of customs warehouse rent paid up to the date of release of the imported goods.
d) Costs of this suit. The present application, Plaintiff prays for:-
(1) That the Defendant be directed to execute, certify, endorse and deliver to the Plaintiff in accordance with the custom of trade all necessary documents as will enable the Plaintiff to process, clear and take possession from the Port of Mombasa of all the assorted goods as more particularly described in a Bill of Lading No. PONLDXB 1900 3680 81 and 82 respectively that came aboard Vessel Emirate Star in Container No. POCU 0405171 and which are the subject matter of this suit.
(2) That the Defendant be directed to meet, settle in full any and all warehouse rent due and owing to Kenya Revenue Authority up till the time all goods which are the subject matter of the suit herein are cleared and released to the Plaintiff. It is not therefore in order to invoke Section 3A and 63 Civil Procedure Act or Order L Civil Procedure Code. These provisions do not provide for final orders to be entered on an application.
Also it is to be noted that the Applicants are relying on Trade Custom. It is not clear which Trade Custom is referred to. Trade Customs are proven by evidence at the trial. Furthermore, the Defendants are claiming lien on the goods for payment of their charges. A lien does not raise a cause of action. The owner of the goods collects then after payment of the charges.
There is also raised the issue that the Plaintiffs are suing on behalf of disclosed principals. The Powers of Attorney are documents of appointments of Agents. In this case the same were obtained after suit was filed.
Again, it is shown in the Bill of Lading that the Defendant was the carrier who discharged the container into the custody and care of K.P.A. on 13/10/2002 and not until 8/5/2003 did a representative notified Defendant that the Plaintiff company was appointed agents for the owner at which time delivery for stripping charges, and
demurrage charges had accrued. The Plaintiff refused to pay demurrage charges which at that time was Kshs.195,358/25.
The issue whether the demurrage charges are payable or not is triable issue to be proved by evidence. No such proof has yet been shown.
In fact the rights of parties under the reverse of Bill of Lading are disputed.
In view of what is stated above, I do not find that requirements are satisfied to grant orders sought.
The application is dismissed with costs.
Dated this 25th day of June, 2004.
JOYCE KHAMINWA
J U D G E