[2023] KEHC 27234 (KLR)

Oman Formal Dehyde Chemical Company v Nilands Limited Africa; Kenya Revenue Authority & 3 others (Interested Parties) (Commercial Case E025 of 2023) [2023] KEHC 27234 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 27234 (KLR)

Republic of Kenya

In the High Court at Mombasa

Commercial Case E025 of 2023

DKN Magare, J

December 14, 2023

Between

Oman Formal Dehyde Chemical Company

Plaintiff

and

Nilands Limited Africa

Defendant

and

Kenya Revenue Authority

Interested Party

Kenya Ports Authority

Interested Party

Uganda Revenue Authority

Interested Party

CMA CGM Kenya Limited

Interested Party

Judgment

1. The Plaintiff filed this case claiming for the following prayers: -a.A Permanent Injunction be issued restraining the 4th Interested Party from releasing the Cargo as described in the Bills of Lading No. CLC1026104, CLC0126158A and CLC0126158B to the Defendant or any other party that is not the Plaintiff and or its appointed Agents.b.A Mandatory Order be issued to the 1st, 2nd and 3rd Interested Parties to release the Cargo described in the Bills of Lading No. CLC1026104, CLC0126158A and CLC0126158B to the Plaintiff or its appointed agents.c.An Order be issued to the 1st, 2nd and 3rd Interested Parties allowing the Amendments of the Bills of Lading No. CLC1026104, CLC0126158A and CLC0126158B specifically to change the name of the consignee and enable the release of the cargo to a new consignee.d.An order be issued requiring the successful party to settle any storage and demurrage charges totaling USD 113,179. 00 as at 19th September 2023 resulting from the idling of the cargo at the port of Mombasa.e.Costs and interest of the suit `be awarded to the Plaintiff

2. The Defendant and interested parties were served. The Court directed the matter proceeds by way of case stated. This was also informed by the fact that in any case the Plaintiff was going to admit their statement and documents. I had certified the matter to be heard ed bene esce, due to the increase of port and other charges.

3. The Interested Parties confirmed that they had no claim over the matter.

4. In the submissions they set forth how an Order was made fraudulent by holding itself out as a legitimate company in Uganda but it emerged that there were nit records if such a company.

5. It was also submitted that the address of the Defendant was thus fictitious, false and nonexistent and the Defendant has ignored communication from the Plaintiff.

6. The cargo in the Bill of Lading arrived at the port of Mombasa on 17th March 2023 but the Defendant consignee became unreachable and unavailable and a court order was necessary the release and sell to a new buyer.

7. The Interested Parties confirmed that they are not involved with the Defendant. It is said to be a fictional authenticity.

8. All communications were in vain. Since the bill of lading is not negotiable the shipping line is set to deliver goods to the consignee.

9. They state that the contract was dubious entered with misrepresentation of fate the Defendant who is said to be a fictional entity made up by third party fraudsters.

10. The payment was not made. They prayed the court to enter Judgment in their favor.

Analysis 11. The case is not opposed. The Defendant though using the name “Limited”, is not a limited liability but an unregistered business name. They were masquerading as the Nilands Limited Africa. It is part of the increased lapses in Maritime trade where, the fraudsters use names similar to established names in Europe and USA taking advantage of language barriers, to import and defraud shippers. Under Section 41 and 42 of the Sale of Goods Act, the Plaintiff retains and unpaid seller’s lien. The Section provides as doth; -“41. (1)Subject to the provisions of this Act, the unpaid seller of goods who is in possession of them is entitled to retain possession of them until payment or tender of the price in the following cases—a.where the goods have been sold without any stipulation as to credit;b.where the goods have been sold on credit, but the term of credit has expired; (c) where the buyer becomes insolvent.c.(2) The seller may exercise his right of lien notwithstanding that he is in possession of the goods as agent or bailee or custodier for the buyer.42. Where an unpaid seller has made part delivery of the goods, he may exercise his right of lien or retention on the remainder unless the part delivery has been made under such circumstances as to show an agreement to waive the lien or right of retention.”

12. In this case, without payment, and with the person contracting being fiction, then the Plaintiff is entitled to claim and return its goods.

13. I find the Plaintiff, on the facts before me has proved its case. I am informed by the following cases.i.Rotem Kimyevi Maddeler Sanayi ve Tiracet AS v Sunland Chemicals Uganda Limited [2019] eKLR – pages 1 to 3 of the plaintiff’s bundle of authorities.ii.Ginegar Plastic Products Ltd v Victrex Ltd & Another [2021] eKLR – pages 4 to 8 of the plaintiff’s bundle of authorities.iii.Junca Gelatines S.L. v Hilton Ingredients (U) Ltd [202] eKLR – pages 9 to 12 of the plaintiff’s bundle of authorities.iv.Apliena Sau v Andrea Donato & 4 others [2021] eKLR – pages 13 to 16 of the plaintiff’s bundle of authorities.v.Robert Kimyevi Maddeler Samayi Ve Ticart as Sunland Chemicals Uganda (2019) eKLR.

14. The end result is that I have reached an inevitable conclusion that the suit is merited and is accordingly allowed with costs.

Determination 15. I therefore make the following orders: -a.A Permanent Injunction be issued restraining the 4th Interested Party from releasing the Cargo as described in the Bills of Lading No. CLC1026104, CLC0126158A and CLC0126158B to the Defendant or any other party that is not the Plaintiff and or its appointed Agents.b.A Mandatory Order be issued to the 1st, 2nd and 3rd Interested Parties to release the Cargo described in the Bills of Lading No. CLC1026104, CLC0126158A and CLC0126158B to the Plaintiff or its appointed agents.c.An Order be issued to the 1st, 2nd and 3rd Interested Parties allowing the Amendments of the Bills of Lading No. CLC1026104, CLC0126158A and CLC0126158B specifically to change the name of the consignee and enable the release of the cargo to a new consignee.d.An order be issued requiring the successful party to settle any storage and demurrage charges totaling USD 113,179. 00 as at 19th September 2023 resulting from the idling of the cargo at the port of Mombasa.e.Costs of the suit of USD 11,000 be awarded to the Plaintiff together with the cost of transshipmenti.The file is closed.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 14TH DAY OF DECEMBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGE