[2014] KEHC 3796 (KLR)
The court held that the objection to payment of the appraisal fees was not valid because the appraisal was conducted by consent of all parties and the service was already rendered. The subsequent sale of the vessel was based on that appraisal, and both the appraisal and sale cannot be reversed. The pending...
Source-derived case information.
- Citation
- [2014] KEHC 3796 (KLR)
- Parties
- Claimant: The Owners of Motor Tug “HAM 1400”; Defendant: The Owners of the Motor Vessel “PONMUDI”
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Claim 7 of 2011
- Procedural Posture
- Admiralty and Maritime Claim / Ruling on Payment of Appraisal Fees From Sale Proceeds
- Outcome
- Application for payment of appraisal fees allowed.
- Judges
- MM Kasango
- Legal Topics
- Appraisal Fees, Sale of Vessel, Distribution of Sale Proceeds
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
The Owners of Motor Tug “HAM 1400”
Claimant
The Owners of the Motor Vessel “PONMUDI”
Defendant
Procedural Posture
Admiralty and Maritime Claim / Ruling on Payment of Appraisal Fees From Sale Proceeds
Legal Issues
- 1 Whether the appraisal fees of Raphael Wambua Musau should be paid from the sale proceeds of the vessel PONMUDI.
- 2 Whether the pending application to set aside judgment affects the payment of appraisal fees.
Ratio Decidendi
The court held that the objection to payment of the appraisal fees was not valid because the appraisal was conducted by consent of all parties and the service was already rendered. The subsequent sale of the vessel was based on that appraisal, and both the appraisal and sale cannot be reversed. The pending application to set aside the judgment does not affect the obligation to pay for services already performed. The court further noted that while distribution of sale proceeds to claimants may be stayed pending the outcome of the application, this does not extend to payment of the appraiser’s invoice. Therefore, the invoice of Raphael Wambua Musau should be paid out of the sale proceeds...
Court Disposition
Application for payment of appraisal fees allowed.
Orders
- The invoice of Raphael Wambua Musau be paid out of the sale proceeds held in Admiralty Marshall account.
- There shall be no orders as to costs in respect of this ruling.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA DISTRICT REGISTRY
CLAIM NO. 7 OF 2011
THE OWNERS OF MOTOR TUG “HAM 1400” ……………..…...CLAIMANT
VERSUS
THE OWNERS OF THE MOTOR VESSEL “PONMUDI”….. DEFENDANT(S)
RULING
1. I am called upon to determine whether the fees of RAPHAEL WAMBUA MUSAU (Raphael) should be paid and if payable when it should be paid out, from the sale proceeds of Vessel PONMUDI. The sale proceeds are held in the Admiralty Marshall’s account. Raphael was appointed to appraise the vessel PONMUDI which was then under arrest. Raphael was appointed by Court by consent of Counsels in this matter.
2. The payment for that appraisal is objected to by the Claimants in Claim No. 7 of 2011. The basis of objecting is that there is pending for determination an Application Notice dated 1st November 2012 seeking to set aside the Claimant’s judgment. In the affidavit of TITUS KILONZO of 27th May 2014 the Claimants objection is stated to be that if the said Application Notice of 1st November 2012 is successful there will be no decree in Claim No. 7 of 2011 and the sale of the vessel and the appraisal carried out will be rendered a nullity.
3. I have considered the objection raised to the payment of the appraisal fees of Raphael. In my view such objection cannot be a basis to refuse to pay for services already rendered. As stated before, Counsel for Claimants in Claim No. 7 of 2011 consented to the appraisal being carried out before the sale of the Vessel. The Vessel was sold following that appraisal. It therefore follows that nothing can reverse either the appraisal or the sale of the vessel to a third party. I have also noted that in the Application Notice dated 1st November 2012 one of the orders sought is that-
“Payment out of the proceeds of sale of any sum to the Claimants in this Claim (that is No. 7 of 2011) be stayed until the hearing and determination of this application.”
It follows that if there is distribution of the proceeds of sale of the Vessel amongst the various Claimants in Claims Nos. 7 of 2011, No. 11 of 2010, No. 12 of 2010 and No. 1 of 2011. The amount due to the Claimants in Claim No. 7 of 2011 shall be held in abeyance awaiting the determination of the Application Notice of 1st November 2012.
4. Accordingly the orders that commends itself to me and which is the order of this Court is that-
The Invoice of RAPHAEL WAMBUA MUSAU be paid outof the sale proceeds held in Admiralty Marshall account.
There shall be no orders as to costs in respect of this Ruling.
DATED and DELIVERED at MOMBASA this 17TH day of JULY, 2014.
MARY KASANGO
JUDGE