[2017] KEHC 3789 (KLR)
The court held that since the arbitral tribunal found against the claimant on the substantive issue and the consent order provided for the release of the vessel and allocation of certain payments, the claimant ultimately failed in its contentions. Applying the principle that costs follow the event, the court...
Source-derived case information.
- Citation
- [2017] KEHC 3789 (KLR)
- Parties
- Plaintiff: Pacific Gulf Shipping Company Ltd; Defendant: The Owners of the Motor Vessel "Eleanor D"; Defendant: COSCOL (HK) Investment & Dev. Co. Ltd; Defendant: Truimph Carrier Ltd, the Time Charterers of the Motor Vessel "Eleanor D"
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Admiralty Claim 2 of 2011
- Procedural Posture
- Admiralty Claim / Ruling on Costs After Arbitration and Consent Order
- Outcome
- Claimant to pay costs to the 1st and 2nd defendants.
- Judges
- CA Otieno
- Legal Topics
- Arrest of Vessel, Costs Follow Event, Arbitration Referral, Consent Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Pacific Gulf Shipping Company Ltd
Plaintiff
The Owners of the Motor Vessel "Eleanor D"
Defendant
COSCOL (HK) Investment & Dev. Co. Ltd
Defendant
Truimph Carrier Ltd, the Time Charterers of the Motor Vessel "Eleanor D"
Defendant
Procedural Posture
Admiralty Claim / Ruling on Costs After Arbitration and Consent Order
Legal Issues
- 1 Who is liable for the costs incurred in the suit after the arbitral tribunal found against the claimant.
- 2 Whether costs should follow the event in light of the arbitration outcome and consent order.
Ratio Decidendi
The court held that since the arbitral tribunal found against the claimant on the substantive issue and the consent order provided for the release of the vessel and allocation of certain payments, the claimant ultimately failed in its contentions. Applying the principle that costs follow the event, the court determined that the 1st and 2nd defendants, having succeeded in resisting the claim, are entitled to recover their costs from the claimant. The court thus ordered the claimant to pay the costs incurred by the 1st and 2nd defendants in this suit.
Court Disposition
Claimant to pay costs to the 1st and 2nd defendants.
Orders
- The plaintiff shall pay to the 1st and 2nd defendants the costs incurred by them in this suit.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
ADMIRALTY CLAIM NO. 2 OF 2011
PACIFIC GULF SHIPPING COMPANY LTD..........................CLAIMANT
VERSUS
1. THE OWNERS OF THE MOTOR VESSEL“ELEANOR D”
2. COSCOL (HK) INVESTMENT & DEV. CO. LTD
3. TRUIMPH CARRIER LTD, THE TIME
CHATERESOF THE MOTOR VESSEL “ELEANOR D”....DEFENDANT
R U L I N G
Introductory background
1. Having instituted this suit by a claim for the delivery of some backers or their value and damages for detention and conversion, the claimant equally sought and obtained a warrant of arrest and the vessel was thus under arrest from the 6th to 17th May 2011. The vessel was released from arrest by consent of the parties upon on undertaking and the dispute referred to arbitration before a tribunal in London. The undertaking was to the effect partly that the defendants would buy the bankers then remaining on board at US Dollars 441,383. 80 and pay additional port charges and costs in the sum of US Dollars 32,500 to the claimant. On costs, the undertaking made it clear that the 2nd defendant would be made to pay the claimant on any application the defendant may make to set aside the arrest or to reduce the amount secured.
2. The main and only issue the parties agreed to refer to the arbitration was, who was to meet the cost of Kshs.311,289. 95 being the bankers consumed by the vessel between 15th April and 6th May 2011. That claim was decided against the claimant on the basis the arbitral tribunal held was the misinterpretation of the charter and the claimant was ordered to pay for the bankers consumed during the period.
3. Parties in their submissions both oral and written agree and accept the position of the law that costs follow the event. In this matter, the plaintiff sued the 1st and 2nd defendant on the basis that there was no hire for a definite period. When that matter was referred to arbitration, the claimant was faulted and determined to have been wrong on its assertions and ordered to meet the costs of the bankers it sued to recover.
4. To this court therefore, beyond the consent recorded in court and the findings in the ruling dated 24/2/2012 (Mwongo J) the Claimant failed in his contentions and pursuits and the ultimate event the costs must follow is that the 1st and 2nd Respondents succeeded in resisting the claim. For that reason it is found and ordered that the plaintiff shall pay to the 1st and 2nd defendants the costs incurred by them in this suit.
5. It is so ordered.
Dated and delivered at Mombasa this 4thday of August 2017.
P.J.O. OTIENO
JUDGE