[2017] KEHC 4163 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

ADMIRALTY CLAIM NO. 2 OF 2016

CLAIMANT: PEMBE FLOUR MILLS LTD

VERSUS

DEFENDANT: THE OWNERS OF THE MOTOR VESSEL “IOANNIS G”

RULING

1. This Admiralty cause was initially placed before Justice P.J Otieno who granted a warrant of arrest for the motor vessel "IOANNIS G" on 22nd September, 2016. On 28th September, 2016 the claimant/respondent, filed an application and undertaking for release of the said motor vessel. Orders for her release were issued on the same day. An application notice was subsequently filed by the applicant wherein on 10th October, 2016, under the provisions of Part 11 rule 11(1), (2), (3), (4) and (6), Part 61 rule 61. 5 and Section 2D.96 of the Civil Procedure Vols. 1 and 2 and Sections 20 and 21 of the Senior Courts Act, 1981. Judge P.J Otieno directed that the application notice in issue be heard by this court.

2. The said application dated 7th October, 2017 seeks the following orders:-

(i) Spent;

(ii) That these proceedings be stayed pending the hearing and determination of the application notice;

(iii) That this honourable do direct that the matter in dispute be referred to arbitration in London;

(iv) That the claim in rem brought against the motor vessel “IOANNIS G” be struck out and the warrant of arrest issued herein together with the claim form filed and dated 22nd September, 2016 be set aside; and

(v) That the costs of the application notice, and the striking out of the claim form and warrant of arrest be provided for.

3. The application is premised on the grounds that:-

(i) The applicant herein has agreed to refer the dispute in this matter to arbitration under the terms and conditions of carriage under the Bill of lading No. 1 dated 17th August, 2016 issued at Novorossiyki;

(ii) The Admiralty court’s jurisdiction has not been invoked to fall within the ambit of section 20 of the Senior Court’s Act, 1981;

(iii) No reference has been made to any of the provisions of the Admiralty Court’s jurisdiction under section 20(1)(a) of the Senior Court’s Act, 1981 as well as Section 4 of the Judicature Act, Cap 8 Laws of Kenya which are not pleaded;

(iv) No basis has been laid as to the mode of exercise of the Admiralty court’s jurisdiction which arises in this claim in rem under the provisions of section 21(4) of the Senior Court’s Act; 1981;

(v) There has been failure to comply with the mandatory Admiralty rules and practice directions under Part 61 of the Civil Procedure Rules, Vol. 2 resulting in the arrest of motor vessel “IOANNIS G” being wrongly issued thus rendering the warrant of arrest issued herein fatally defective;

(vi) This Honourable court therefore has no jurisdiction to hear and determine this Admiralty claim; and

(vii) The claim form and warrant of arrest are otherwise an abuse of the process of the court and/or that in all circumstances of the case arrest of the M.V. “IOANNIS G” is unjust and or wrongful.

4. Mr. Khanna, Learned Counsel for the respondent/applicant withdrew prayer Nos. 2 and 3 of the application notice. He submitted that prayer No. 4 disputes the jurisdiction of this court to hear the claim. He relied on Part 11 of the Civil Procedure Rules, 1998 of England and in particular Part 11 rule 11 sub-paragraph 1 which provides the procedure of disputing the court’s jurisdiction. He stated that in accordance with sub-paragraph 6 of the said rules, a court’s jurisdiction can extend to setting aside the claim form. He relied on the grounds in support of the said application notice. He added that no defence has been taken so far. The acknowledgement of service having been filed on 27th September, 2016, the beneficial owners of the vessel were named therein as Southport Wind S.A. of Panama.

5. Counsel asserted that contrary to the claimant's/respondent's written submissions, nowhere is it indicated that Anjarwalla & Khanna Advocate represents the charterer of the vessel as the said allegation is not substantiated in any form. It has not been shown that the charterer instructed the said law firm to withdraw prayers 2 and 3 of the application.

6. Mr. Khanna further submitted that the respondent in his submissions was claiming costs which it is not entitled to at this stage as the issue of costs should be considered if the applicant will be successful in the suit.

7. Counsel cited the case of the owners of the Motor Vessel “Lillian S” vs Caltex Oil Kenya (Ltd) [1989] LLR 1653 (CAK), where the Court of Appeal cited the provisions of Section 20 of the Civil Procedure Rules of England, 1981, which state that a claim form must set out the area of jurisdiction it is invoking under the said section.

8. Mr. Khanna submitted that in this case, it has not been pleaded under which paragraph the present claim falls and a court cannot compare jurisdiction of a claim in rem to any other. It was the applicant’s position that the Bill of lading through a recap amended the original charter party and Seaboard Overseas Ltd is indicated in the Bill of lading as the charter party.

9. In reference to the declaration in support of the warrant of arrest, Counsel submitted that the respondent had a strict duty to disclose the owners of the motor vessel "IOANNIS G". He further stated that a search at the Lloyds register would have revealed who the owners of the motor vessel “IOANNIS G” were for inclusion in the claim form. To this end, it was submitted that if the owners of a vessel are not known, a ship cannot be arrested. Counsel referred to the provisions of Part 61 paragraph 5, sub section 2(a) of the Civil Procedure Rules of England which in his view, were not complied with. He indicated that paragraph 5. 1 of Part 61 provides that an application for arrest of a ship must be in form ADM4 and a declaration in form ADM5. In paragraph 61. 5 of sub-paragraph 3 of the said rules, it provides that an application for arrest must be made in the Register and a declaration filed in the form set out in practice direction 61. Counsel stated that the claim form must capture the fact that the claim is not satisfied. This was not done, for the said reason, he stated that the case is an abuse of the court process.

10. It was Mr. Khanna’s position that the respondent had a duty under Section 21(4) of the Senior Courts Act, 1981 of England, to name the person liable in an action in personam, that is, the beneficial owner. He also argued that no statement of truth had been included in the claim form and that an affidavit could not suffice in place of a declaration. Counsel submitted that during the time when the "Lilian S" case was decided, the court could grant leave to issue a warrant of arrest notwithstanding the fact that a declaration did not contain all the particulars. It was his view that the issue of a warrant of arrest is not a discretionary remedy under Part 61 of the Admiralty jurisdiction and proceedings at paragraph 2D-35 of the general note. Mr. Khanna further submitted that the provisions of section 21(4) of the Senior Courts Act, 1981 should be strictly followed. He prayed for the claim form and warrant of arrest to be set aside. He also prayed for costs. He relied on excerpts from Nigel Meeson, 3rd Edition, at pages 125-137 and 138 to support his submissions.

11. Mr. Kinyua, Learned Counsel for the respondent opposed the application by stating that the respondent’s Managing Director, Mr. Salim A. Bajaber (Mr. Bajaber) filed a declaration on 22nd September, 2016 and a witness statement on 15th December, 2016. He submitted that the said statement at page 6 contains a statement of truth, and that Mr. Bajaber swore a declaration in support of the application of warrant of arrest. He asserted that in Form ADM4, the application and undertaking for arrest and custody, the respondent discloses that the court is requested to issue a warrant of arrest even though the claimant has not stated the owner of the vessel due to time constraints. He referred to the declaration in paragraph 13, where it is stated that the vessel was at the outer anchorage Mombasa and a warrant was required before she set sail.

12. Counsel submitted that in the case of “Lilian S” cited by the applicant, the court held that under Order 75 rule 5 of the Supreme Court Practice of 1988 of England, the court had discretion to issue a warrant of arrest despite non-compliance with all the particulars required. He referred to Order 75 rule 5 paragraphs 4 and 9 of the said rules.

13. Mr. Kinyua contended that they did a search and confirmed that no caution had been filed, but the Admiralty Marshal did not sign his part to show that there was no caution. He added that the existence of a caution does not stop a party from arresting a ship.

14. His position on the issue of representation was that the firm of Anjarwalla & Khanna was not representing the applicant. He referred to the application Notice filed on 10th October, 2016 where the claimant is Pembe Flour Mills Ltd and the defendant’s name is the owners of the motor vessel “IOANNIS G”. He argued that all of the documents have been signed by the law firm representing “IOANNIS G” but not by an employee or Director of Southport Wind S.A., Panama.

15. Counsel for the respondent made reference to annexure “B” to the present application which states that "all conditions of the charter party dated 7th June, 2016 including the law and arbitration clause are herewith incorporated". He argued that the charter party and recap given was for other ships and parties. He contended that if Anjarwalla and Khanna Advocates were acting for Southport Wind S.A., they would have given copies of the relevant charter party.

16. In reference to Mr. Bajaber’s witness statement, Mr. Kinyua submitted that paragraph xii thereof states that Mr. Akash R. Devani, the Advocate who signed the statement of truth in the application dated 7th October, 2016 attached a pro-forma charter party dated 20th May, 2016 yet the charter party in issue is dated 7th June, 2016, thus his statement of truth to the said extent was in contempt of court.

17. Counsel further informed the court that the charter party attached at page 5 of the applicant's documents is dated 20th May, 2016, the codename is Norgrain 89. The bill of lading has the code name Congenbill. He stated that the said charter party is for the owners of XO Shipping A/s, Hellerup, Overseas Ltd. for the motor vessel “Gladiator”. On the issue of ownership, he indicated that the law requires the name of the beneficial owner and the port of registry so as to show the connection of the claim and the owner of the ship as ships share common names. He asserted that the cargo was loaded aboard motor vessel Gladiator and so the claim should have been against the said vessel. Therefore if the court finds that the ship arrested was “IOANNIS G” the court should find the present application incompetent. In his view, Southport Wind S.A., may not have an inkling of the existence of this case.

18. He added that there was a possibility that Southport Wind S.A., Panama gave the court the wrong charter party, while asking it to resolve the claim under the Congenbill of 1994. Counsel added that the documents for the motor vessel "Gladiator" cannot be used to resolve a dispute for the motor vessel "IOANNIS G" and no documents had been availed indicating that motor vessel "Gladiator" changed its name to “IOANNIS G” or vice versa. It was also not evident that XO Shipping of Denmark, the owners of the motor vessel "Gladiator" had changed its name to Southport Wind S.A, Panama.

19. Counsel for the respondent referred to clause 78 of the Rider clauses which provides that in case of any dispute involving the Bill of lading, the charterers are obliged to provide them with a copy of the charter party. He speculated that if they had asked for a charter party, they would have been given the same documents availed in court.

20. Mr. Kinyua further challenged Mr. Devani’s statement of truth which states that the claimant received an excess of 27. 30 metric tonnes according to the draught survey. He made reference to clause 64 of the charter party of the motor vessel "Gladiator" which provides that Bills of lading weight was to be determined as per shore scale figures only. With regard to page 20 of the annextures attached to the declaration, it shows that the “IOANNIS G” was loaded with 48805. 882 metric tonnes (MT) per the draught survey and the Bill of lading figure was 48926 MT. There was a shortage of 120. 118 MT. The document was signed by the Master/Chief Officer of the ship. The claim form is for 309MT. Counsel referred to page 29 of the Rider clauses which shows that 40,000 metric tonnes were for the Mv Gladiator. He added that although the said document indicated that some amendments were made, they were not availed.

21. Mr. Kinyua submitted that Mr. Khanna’s submissions indicate that he was instructed to withdraw prayers 2 and 3 of the application notice for reasons that the charterer of the vessel no longer wishes to refer this dispute to arbitration in London. Counsel for the respondent pointed out that the foregoing was a pointer to the fact that the law firm of Anjarwalla & Khanna seemed to be representing the charterers and not the owners of the Motor vessel “IOANNIS G”. In his view, only a document signed by Southport Wind S.A., can confirm if they are involved in the claim, thus necessitating a further affidavit from the applicant.

22. He argued that Mr. Devani did not attribute the source of information to anyone, yet he is not a member of Southport Wind S.A., of Panama, or a master of the Vessel. In his view, Mr. Devani’s statement of truth is false.

23. He continued to submit that when a Judge exercises discretion wrongly, or gives an order where he has no jurisdiction the remedy would have been to appeal to the Court of Appeal. In response to Mr. Khanna’s submission that Mr. Bajaber’s declaration does not follow the correct format he stated that the provisions as to the contents of a declaration are set out in mandatory terms.

24. Mr. Kinyua cited the provisions of Article 159(2)(d) of the Constitution which gives courts the leeway to overlook technicalities. He submitted that since the claim is being heard in Kenya, the Court has residual powers to do justice to the parties. He admitted that there was failure to indicate the owners of the motor vessel, but the failure did not lead to arrest of the wrong ship belonging to the wrong party. In his view, no prejudice had been caused to the applicant. He prayed for the application to be dismissed with costs.

25. In response to the foregoing, Mr. Khanna’s stand was that the court cannot question whom their law firm represents. He indicated that they represent Southport Wind S.A., Panama and the charterer is not involved. He reiterated that the application notice is strictly done in the format provided. He informed the court that his client had not lied in his statement of truth. He further stated that there was no falsehood that the cargo discharged was in excess. In this regard he referred to the document marked E attached to their application. He submitted that the charter party had been amended by a recap and the documents in issue have no bearing to the issues that were being raised by Counsel for the respondent.

26. He submitted that page 38 of his documents at clause 12, state that the contract is to be construed in accordance with English law and arbitration is to be done in England. He indicated that the amendments being referred to by the recap are not attached to their application as the refixture cap has no relevance at all, as they withdrew prayer No. 3 of the application.

27. He reiterated that Order 75 of the Supreme Court rules of England have been replaced by Part 61 which removes any discretion of the Court. He added that the correct form for filing a declaration is ADM5.

28. In winding up his submissions, Mr. Khanna submitted that charter parties are confidential and they are not availed until at the time of the hearing of a case. In respect to Mr. Kinyua's submission that they should have appealed the initial orders of the court, Counsel for the applicant submitted that they could not have appealed against an order issued an exparte.

ANALYSIS AND DETERMINATION

The issues for determination are:-

(i) If the claim herein should be struck out and the warrant of arrest and claim form be set aside: and

(ii) Who bears the costs of the application notice.

29. This court has jurisdiction to hear Admiralty cases by virtue of the provisions of Section 4 of the Judicature Act, Cap 8 Laws of Kenya. The said provisions state as follows:-

“(1) The High Court shall be a court of admiralty, and shall exercise admiralty jurisdiction in all matters arising on the high seas, or in territorial waters, or upon any lake or other navigable inland waters in Kenya.

(2) The admiralty jurisdiction of the High Court shall be exercisable-

(a) over and in respect of the same persons, things and matters; and

(b) in the same manner and to the same extent; and

(c) in accordance with the same procedure, as in the High Court in England, and shall be exercised in conformity with international laws and the comity of nations.

(3) In the exercise of its admiralty jurisdiction, the High Court may exercise all the powers which it possesses for the purpose of its other civil jurisdiction.

(4) An appeal shall lie from any judgment, order or decision of the High Court in the exercise of its admiralty jurisdiction within the same time and in the same manner as an appeal from a decree of the High Court under part VII of the Civil Procedure Act (Cap. 21).”

30. The respondent filed an application and undertaking for arrest and custody of motor vessel "IOANNIS G", Admiralty Form No.4 (ADM4) and a claim form in the nature of an admiralty claim in rem against the owners of motor vessel "IOANNIS G" on 22nd September, 2016. The application was brought under certificate of urgency. It was accompanied by a declaration (ADM5) in support of the application for warrant of arrest sworn on 21st September, 2016 by Mr. Bajaber, a Director of the respondent. Several documents were attached to the said declaration in support of the claim. The applicant herein filed an acknowledgement of service on 27th September, 2016 where the owners of the motor vessel "IOANNIS G" are described as Southport Wind S.A., Panama. The firm of Anjarwalla & Khanna Advocates which filed the acknowledgment of service gave its address for service of documents relating to the claim.

31. Counsel for the applicant brought up the issue of ambiguity in the claim form filed by the respondent in that they failed to include the provisions of the law on which their claim is premised. Mr. Kinyua was of the opinion that it was not necessary to include the said information in a claim form which he equated to a plaint.

32. The statute that confers jurisdiction on the High Court in England to hear Admiralty cases is Section 20 of the Senior Courts Act, 1981. It provides as follows:-

"The Admiralty jurisdiction of the High Court shall be as follows, that is to say—

(a) jurisdiction to hear and determine any of the questions and claims mentioned in subsection (2);

(b) jurisdiction in relation to any of the proceedings mentioned in subsection (3);

(c) any other Admiralty jurisdiction which it had immediately before the commencement of this Act; and

(d) any jurisdiction connected with ships or aircraft which is vested in the High Court apart from this section and is for the time being by rules of court made or coming into force after the commencement of this Act assigned to the Queen’s Bench Division and directed by the rules to be exercised by the Admiralty Court.

(2) The questions and claims referred to in subsection (1)(a) are—

(a) any claim to the possession or ownership of a ship or to the ownership of any share therein;

(b) any question arising between the co-owners of a ship as to possession, employment or earnings of that ship;

(c) any claim in respect of a mortgage of or charge on a ship or any share therein;

(d) any claim for damage received by a ship;

(e) any claim for damage done by a ship;

(f) any claim for loss of life or personal injury sustained in consequence of any defect in a ship or in her apparel or equipment, or in consequence of the wrongful act, neglect or default of—

(i) the owners, charterers or persons in possession or control of a ship; or

(ii) the master or crew of a ship, or any other person for whose wrongful acts, neglects or defaults the owners, charterers or persons in possession or control of a ship are responsible, being an act, neglect or default in the navigation or management of the ship, in the loading, carriage or discharge of goods on, in or from the ship, or in the embarkation, carriage or disembarkation of persons on, in or from the ship;

(g) any claim for loss of or damage to goods carried in a ship;

(h) any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship;

(j) any claim—

(i) under the Salvage Convention 1989;

(ii) under any contract for or in relation to salvage services; or

(iii) in the nature of salvage not falling within (i) or (ii) above; or any corresponding claim in connection with an aircraft;]

(k) any claim in the nature of towage in respect of a ship or an aircraft;

(l) any claim in the nature of pilotage in respect of a ship or an aircraft;

(m) any claim in respect of goods or materials supplied to a ship for her operation or maintenance;

(n) any claim in respect of the construction, repair or equipment of a ship or in respect of dock charges or dues;

(o) any claim by a master or member of the crew of a ship for wages (including any sum allotted out of wages or adjudged by a superintendent to be due by way of wages);

(p) any claim by a master, shipper, charterer or agent in respect of disbursements made on account of a ship;

(q) any claim arising out of an act which is or is claimed to be a general average act;

(r) any claim arising out of bottomry;

(s) any claim for the forfeiture or condemnation of a ship or of goods which are being or have been carried, or have been attempted to be carried, in a ship, or for the restoration of a ship or any such goods after seizure, or for droits of Admiralty."

33. It is clear from the above provisions that Section 20(2) of the Senior Courts Act lists 18 types of maritime claims which may be brought under the admiralty jurisdiction of the High Court in respect of which a vessel may be arrested. The information that needs to be filled in a claim form (Form ADM1) as regards the claim is brief details of the claim and particulars of the claim at the time of filing or at a later date. With regard to the applicable provisions of the law, these could have been provided in Form ADM4 (application and undertaking for arrest and custody) as a matter of good practice.

34. Form ADM4 contains the following inscriptions, "The Admiralty Marshal is requested to execute the warrant in the above claim lodged herewith by the arrest of motor vessel "IOANNIS G" of the port of Valleta, Malta, lying at the Port of Mombasa. The Court is requested to issue the Warrant of Arrest even though the claimant has not stated the owner of that vessel due to time constraints." (emphasis added). Mr. Khanna took issue with the respondent's non-disclosure of the owners of the motor vessel "IOANNIS G", as such information would have been readily available to the Counsel for the respondent through an online search from the Lloyds Register. Mr. Kinyua on the other hand pleaded time constraints in not disclosing the said information. He stated that the provisions of Order 75 of the Supreme Court Rules, 1989 of England do allow the filing of an application for arrest of a ship without disclosure of the owners of a motor vessel because such information can be disclosed at a later date.

35. Counsel for the applicant submitted that the law had since changed and Order 75 had been replaced by Part 61 of the CPR - Rules and Practice Directions of England. In this regard, Mr. Khanna is correct. The applicable provisions to an Admiralty claim in rem is part 61. 5 of the said Rules. They provide as follows:-

"1)In a claim in rem –

(a)a claimant; and

(b)a judgment creditor may apply to have the property proceeded against arrested.

(2)Practice Direction 61 sets out the procedure for applying for arrest.

(3)A party making an application for arrest must –

(a)request a search to be made in the Register before the warrant is issued to determine whether there is a caution against arrest in force with respect to that property; and

(b)file a declaration in the form set out in Practice Direction 61.

(4)A warrant of arrest may not be issued as of right in the case of property in respect of which the beneficial ownership, as a result of a sale or disposal by any court in any jurisdiction exercising admiralty jurisdiction in rem, has changed since the claim form was issued.

(5)A warrant of arrest may not be issued against a ship owned by a State where by any convention or treaty, the United Kingdom has undertaken to minimise the possibility of arrest of ships of that State until –

(a)notice in the form set out in Practice Direction 61 has been served on a consular officer at the consular office of that State in London or the port at which it is intended to arrest the ship; and

(b)a copy of that notice is attached to any declaration under paragraph (3)(b).

(6)Except –

(a)with the permission of the court; or

(b)where notice has been given under paragraph (5), a warrant of arrest may not be issued in a claim in rem against a foreign ship belonging to a port of a State in respect of which an order in council has been made under section 4 of the Consular Relations Act 19684, until the expiration of 2 weeks from appropriate notice to the consul.

(7)A warrant of arrest is valid for 12 months but may only be executed if the claim form –

(a)has been served; or

(b)remains valid for service at the date of execution.

(8)Property may only be arrested by the Marshal or his substitute.

(9)Property under arrest –

(a)may not be moved unless the court orders otherwise; and

(b)may be immobilised or prevented from sailing in such manner as the Marshal may consider appropriate.

(10)Where an in rem claim form has been issued and security sought, any person who has filed an acknowledgment of service may apply for an order specifying the amount and form of security to be provided."(emphasis added).

36. Practice Direction 61 on Admiralty claims which supplements CPR - Part 61 of England provides as follows:-

"5. 1An application for arrest must be–

(1)in form ADM4 (which must also contain an undertaking); and

(2)accompanied by a declaration in form ADM5.

5. 2When it receives an application for arrest that complies with the rules and the practice direction the court will issue an arrest warrant.

5. 3The declaration required by rule 61. 5(3)(b) must be verified by a statement of truth and must state –

(1)in every claim –

(a)the nature of the claim or counterclaim and that it has not been satisfied and if it arises in connection with a ship, the name of that ship;

(b)the nature of the property to be arrested and, if the property is a ship, the name of the ship and her port of registry; and

(c)the amount of the security sought, if any.

(2)in a claim against a ship by virtue of section 21(4) of the Senior Courts Act 1981 –

(a)the name of the person who would be liable on the claim if it were not commenced in rem;

(b)that the person referred to in sub-paragraph (a) was, when the right to bring the claim arose –

(i)the owner or charterer of; or

(ii)in possession or in control of, the ship in connection with which the claim arose; and

(c)that at the time the claim form was issued the person referred to in sub-paragraph (a) was either –

(i)the beneficial owner of all the shares in the ship in respect of which the warrant is required; or

(ii)the charterer of it under a charter by demise;

(3)in the cases set out in rules 61. 5 (5) and (6) that the relevant notice has been sent or served, as appropriate; and

(4)in the case of a claim in respect of liability incurred under section 153 of the Merchant Shipping Act 1995, the facts relied on as establishing that the court is not prevented from considering the claim by reason of section 166(2) of that Act.

5. 4The notice required by rule 61. 5(5)(a) must be in form ADM6.

5. 5Property is arrested –

(1)by service on it of an arrest warrant in form ADM9 in the manner set out at paragraph 3. 6(1); or

(2)where it is not reasonably practicable to serve the warrant, by service of a notice of the issue of the warrant –

(a)in the manner set out in paragraph 3. 6(1) on the property; or

(b)by giving notice to those in charge of the property.

5. 6When property is arrested the Registrar will issue standard directions in form ADM10.

5. 7The Marshal does not insure property under arrest."(emphasis added".

37. There is no doubt that the respondent herein failed to comply with the mandatory requirement of disclosing the beneficial owner of the motor vessel "IOANNIS G"when filing his claim form and application and undertaking for arrest and custody. This court takes judicial notice that information about the ownership of the motor vessel "IOANNIS G" could have been readily obtained as at the time the respondent's Counsel was filling the documents in issue, through an internet search from the Lloyd’s Register of ships and supplements together with an appropriate inquiry of Lloyd’s intelligence of any changes that may have occurred in ownership of a ship. This should not have been a difficult hurdle to surmount.

38. Forms ADM1 and ADM4 do not give leeway to a claimant to disclose the beneficial owner of a ship at a later date other than at the time of filing the claim. In a claim giving rise to a statutory right to claim in rem, the following must be stated:

(i) the name of the person who would be liable on the claim if it were commenced in personam;

(ii) that this person was when the cause of action arose the owner or charterer or in possession or in control of the ship in connection with which the claim arose; and

(iii) that at the time the claim form was issued this person was the beneficial owner of all the shares in the ship to be arrested, or if the ship to be arrested is the ship in connection with which the claim arose, the demise charterer of the ship."

39. The respondent herein devised his own format of a declaration instead of complying with the mandatory. Form ADM5, gives the necessary format for a declaration that should accompany an application for arrest of a ship. Rule 61. 5 paragraph 3 is drafted in mandatory terms in that an application for arrest must be accompanied by a declaration in formADM5. Further, practice direction 61. 5.3 paragraph 1 on Admiralty claims, which has been replicated in this ruling gives guidelines on the particulars that must be captured in a declaration. These include:-

(i) the nature of the claim or counterclaim;

(ii) that it has not been satisfied;

(iii) if the claim arises in connection with a ship; her name;

(iv) the nature of the property to be arrested, including the name and port of registry if a ship;

(v) the amount of security sought, if any;

(vi) that any relevant notices to consul have been given; and

(vii) ......................................................(not relevant to this application)"

40. Singapore admiralty law is largely similar to the law applicable in England in admiralty claims. For the said reason, I make reference to the "Bunga Melati 5" [2012] 4slr 546, where the Singapore Court of Appeal considered the Standard of proof that has to be satisfied where a party invokes the Admiralty jurisdiction. The court stated that Step 1 was the need for a claimant to show that it had a claim falling within the statute; step 2 was the requirement that the claim arose in connection with a ship; step 3 involved identifying the person liable on the claim in personam; step 4 required showing that the relevant person was, when the cause of action arose, the owner or charterer of, or in possession or control of, the vessel; and step 5 involved showing that the relevant person had, at the time the action was brought, the requisite beneficial interest."

41. In Mr. Kinyua's view failure on their part to comply is a technicality that is curable under the provisions of Article 159(2)(d) of the Constitution. Admiralty proceedings fall under a specialized area of law governed by conventions that are developed through member states of the International Maritime Organization. Kenya applies the law in England as the Parliament of Kenya has not enacted an Admiralty Jurisdiction Act. Part 61 of the CPR - rules and practice directions of England are therefore binding on admiralty practice in Kenya. For the said reason, failure by the respondent to follow the laid down rules and practice directions cannot be brushed off as a mere technicality that is curable under Article 159(2)(d) of the Constitution of Kenya. This court declines to lower the bar for the respondent just because the admiralty claim was filed in Kenya.

42. An admiralty claim filed in Kenya must be in all fours with an admiralty claim filed in England. The declaration filed by Mr. Bajaber has taken the character of something totally new by being a complete departure from the format provided in form ADM5. Due to non-compliance, a lot of information that should have been included in the declaration was omitted from the self styled declaration. I hold that the said non- compliance is not a mere technicality as it goes to the nerve centre of the claim.

43. Another non compliance on the part of the respondent is that there is no evidence of a request for a search having been made in the Register before the warrant of arrest was issued to determine whether there was a caution in force against arrest of motor vessel "IOANNIS G". In reference to Form ADM4, there is no endorsement from the Admiralty Marshal to confirm that no caution had been filed or entered against the arrest of the said vessel. Mr. Kinyua submitted that a search was done but the Admiralty Marshal failed to endorse the said form. It is difficult to establish from the record if that is the correct position other than to note that the requirement for a search being made in the register to ascertain if there is a caution against arrest of a ship before a warrant is issued, is a mandatory provision under rule 61. 5(3)(a) of the CPR - rules and practice directions of England.

44. With regard to the question of whether all technicalities are curable under Article 159(2)(d) of the Constitution of Kenya, in the Law Society of Kenya v. The Centre for Human rights & Democracy & 12 Others, Petition No. 14 of 2013, the Supreme Court stated thus:-

“Indeed, this Court has had occasion to remind litigants thatArticle 159 (2) (d) of the Constitution is not a panacea for all procedural shortfalls.All that the Courts are obliged to do is to be guided by the principle that“justice shall be administered without undue regard to technicalities.”It is plain to us that Article 159 (2) (d) is applicable ona case-by-case basis. See Raila Odinga and 5 Others v. IEBC and 3 Others;Petition No. 5 of 2013,[2013] e KLR”.

45. Similarly, in Nicholas Kiptoo Arap Korir Salat v IEBC & 6 others[2013] eKLR, Kiage JAhad the following to say:-

“… I am not in the least persuaded that Article 159 of the Constitution and the oxygen principles which both command courts to seek to do substantial justice in an efficient, proportionate and cost-effective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice. This Court, indeed all courts, must never provide succor and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even-handed. Courts cannot aid in the bending or circumventing of rules and a shifting of goal posts for, while it may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules. I apprehend that it is in the even-handed and dispassionate application of rules that courts give assurance that there is a clear method in the manner in which things are done so that outcomes can be anticipated with a measure of confidence, certainty and clarity where issues of rules and their application are concerned…”

46. Counsel for the respondent herein went to great lengths to show the shortcomings in the charter party and Bill of lading attached to the application notice. In my view, the argument that the wrong charter party was availed is premature as the said issue could have been resolved at the time of giving directions as to the hearing of the claim. Secondly, the said documents were availed to show that the seat of arbitration for any claims arising out of the carriage of goods herein was to be in London. Mr. Khanna withdrew paragraph 3 of the application notice and therefore there is no reason for this court to delve into the merits of the said argument.

47. It was argued that the law firm of Anjarwalla & Khanna has no instructions to represent Southwind Port S.A., Panama and that the said law firm should produce instructions from the said ship owner. The issue of representation is a matter between a client and his/her or its Advocates. It is not the business of the court to delve into issues of instructions between a law firm and its clients unless it is dealing with bills of costs or where a party claims in court that he/she/it did not instruct an Advocate to act on their behalf.

48. Having held that Counsel for the respondent failed to comply with mandatory requirements as provided under Part 61. 5 of the CPRrules and practice directions andPractice Direction 61 on Admiralty claims which supplements CPR - Part 61, of England, I find that the application notice has merits. I thereforestrike out the claim in rem brought against the motor vessel “IOANNIS G and set aside the warrant of arrest issued on 22nd September, 2016 together with the claim form filed and dated 22nd September, 2016. Needless to say, admiralty rules and practice directions of England apply mutatis mutandis to admiralty claims filed in Kenya. Costs of this application are awarded to the defendant/applicant.

It is so ordered.

DELIVERED, DATED and SIGNED at MOMBASA on this 18TH DAY of JULY 2017.

NJOKI MWANGI

JUDGE

In the presence of:-

Mr. Hamisi holding brief for Mr. Khanna for the Defendant/applicant

Mr. Kinyua for the Claimant/respondent

Mr. Oliver Musundi - Court Assistant