https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12008

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MALINDI** **JUDICIAL REVIEW NO. E002 OF 2025** **REPUBLIC....................................................................................................................APPLICANT** **VERSUS** **DIRECTOR GENERAL KENYA MARITIME AUTHORITY…..................1ST RESPONDENT** **THE OFFICE OF THE ATTORNEY GENERAL…………….....................2ND RESPONDENT** **AND** **EX-PARTE ZHEJIANG HAIRONG OCEAN FISHERIES COMPANY LIMITED** **in joint venture with EVERLAND FOODS LIMITED.........................EX-PARTE APPLICANT** **JUDGMENT** 1. The *Ex-parte* Applicant (“the Applicant”) moved this Court *vide* an application dated 13.3.25 seeking the following ORDERS: 2. ***Spent.*** 3. ***Spent.*** 4. ***THAT an Order of Certiorari directed at the Director General of the Kenya Maritime Authority the 1st Respondent herein quashing his decision in the Gazette Notice No. 14740 of 25th October 2024.*** 5. ***THAT an Order of Prohibition do issued directed at the Director General of the Kenya Maritime Authority the 1st Respondent herein preventing him from issuing unprocedural and otherwise illegal decisions or directives in contravention with the rights of the Ex Parte Applicant under the Kenya Maritime Authority.*** 6. ***THAT Orders of Mandamus do issue directed at the Director General of the Kenya Maritime Authority the 1st Respondent herein compelling him to revoke the Gazette Notice No. 14740 of 25th October 2024.*** 7. ***THAT an order for general damages for loss suffered do issue against the Respondents for destroying, interfering and unlawfully dealing with the Marine Motor Vessels being AHADI 001 and AHADI 002 causing it to be destroyed and dismantled.*** 8. ***THAT costs of this Application be provided for.*** 9. The grounds upon which the Application is premised, are that the Applicant is the registered owner of marine motor vessels known as AHADI 001 and AHADI 002 (the marine vessels) and was licensed to operate the same within Kenyan waters. 10. The Applicant’s case is that *vide* Gazette Notice No. 14740 of 25.10.24, the 1st Respondent declared the marine vessels as abandoned under Section 323 of the Merchant Shipping Act, 2009 (the Act) and that it had taken possession of the marine vessels on allegations that the same were abandoned and posed a threat to the marine environment. Additionally, that the gazette notice was published without first issuing any notices to the Applicant to relocate the marine vessels and without affording the Applicant a fair hearing prior to infringing on its rights to benefit from its marine vessels. Further, that the said notice was issued without taking into account that the marine vessels were not abandoned and the Applicant has had actual possession and control of the same. 11. The Applicant claims that on or around 2.12.24, unidentified individuals trespassed onto the marine vessels and have since commenced destruction of the same and that it was apparent that the 1st Respondent does not intend to remove the same safely but intends to have the same sold out as scrap materials. The Applicant further alleged that the Respondents, by themselves, agents, employees or persons working under their instructions caused the marine vessels to be destroyed, demolished and their apparatus, and goods disposed of without the Applicant’s involvement. 12. The Applicant further stated that in spite of constant communication between the Applicant and the then Ag. Director General of the 1st Respondent, a notice dated 11.8.22 issued by him, which was produced in Malindi JR No. E005 of 2024 (previous JR) was never brought to its attention. The Applicant states that the said notice was never affixed on the marine vessels. 13. The Applicant stated that it has since engaged several companies to have the marine vessels removed but the 1st Respondent has not issued the necessary approvals; that during a site visit by the Court in the previous JR proceedings, all parties were in agreement that the marine vessels needed to be removed from the beach; that based on the Applicant’s correspondence with the 1st Respondent, the agreements with companies as well as the fact that there were guards in the marine vessels and police officers guarding the same the marine vessels should not be categorized as abandoned. 14. It is the Applicant’s contention that the 1st Respondent's decision in the Gazette Notice is *ultra-vires* its powers under the Act, is un-procedural, irrational, and illegal. The decision is also manifestly unconstitutional as it infringes on the right of the Applicant to benefit from its property, being the marine vessels. 15. The Application is opposed by the 1st Respondent *vide* a notice of preliminary objection dated 23.4.25. The objections are that: * + 1. the Applicant does not have the *locus standi* to file this application. 2. that the Applicant being a joint venture is an unincorporated entity hence lacks the legal capacity to sue. 3. It is only the individual companies that can sue in their own names. 4. Even if the individual companies in joint venture can sue, Zhejiang Hairong Ocean Fisheries Company Limited cannot sue in Kenya as it has not been incorporated under the Companies Act as required by Section 974 of the said Act. 5. The verifying affidavit purportedly sworn by Chen Xiangling is fatally defective for being drawn contrary to Section 5 of the Oaths and Statutory Declarations Act for having intentionally not indicated the place where the oath was taken. 6. That though there is an alleged stamp in Chinese the same cannot be said to be for a notary public as the words therein have not been translated. 7. The verifying affidavit if at all it was notarized in China is not admissible as it will have been taken outside the commonwealth and should be struck out. 8. The whole suit will thus be fatally defective since it will lack evidence in support contained in the verifying affidavit and this whole suit should be struck out. 9. The deponent of the verifying affidavit is estopped from relying on the terminated joint venture agreement which position he stated under oath on 17th February 2025 in the previous Judicial Review application he filed being Malindi High Court Judicial Review Number E005 of 2024: Republic vs Director General Kenya Maritime Authority & Another; ex parte Blue Luminous Foods Limited which affidavit is now a court record. 16. The 1st Respondent also filed a replying affidavit in opposition to the Application. 17. The law on preliminary objections is well settled. A preliminary objection must be raised on a pure point of law. In the locus classicus on preliminary objections, **Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696**, Sir Charles Newbold rendered himself thus: ***A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.*** 1. On his part, Law JA as he held: ***So far as I’m aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.*** 1. The law is that for a preliminary objection to be upheld, it must raise a pure point or points of law, which would completely dispose of the matter. It cannot be raised if facts must be ascertained and what is sought must not be the exercise of judicial discretion. A preliminary objection should be argued on the assumption that all the facts pleaded by the other side are correct, and it cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. 2. The challenge by the 1st Respondent of the Applicant’s *locus standi*, is in effect a challenge to the jurisdiction of this Court to hear this matter. It is therefore imperative that the issue of the Applicant’s *locus standi* be resolved at the outset, before considering whether the judicial review orders sought by the Applicant should be granted. In so saying, I am guided by the decision in **Legal Advice Centre t/a Kituo Cha Sheria v Attorney General (Advisory Opinion Reference E001 of 2023) [2024] KESC 15 (KLR) (12 April 2024) (Ruling**) where the Supreme court stated: ***That question raised in regard to locus standi of a party goes directly to the issue of whether the Court has jurisdiction to hear this matter. It is therefore imperative that this Court should settle this question at the onset before moving forward with the hearing of the reference itself.*** 1. *Locus standi* is the right or legal capacity of a party to bring or sustain a suit in court. In the case of **Juletabi African Adventure Limited & another v Christopher Michael Lockley [2017] eKLR**, the Court of Appeal had this to say about *locus standi*: **Locus standi*is defined in*Black’s Law Dictionary, 9th Edition at page 1026*as-*** **“The right to bring an action or to be heard in a given forum”.** ***This Court in*Alfred Njau & 5 others vs. City Council of Nairobi [1983] eKLR*put it in the following terms:-*** **“The term locus standi*means a right to appear in Court and, conversely, as is stated in Jowitt’s Dictionary of English Law, to say that a person has no locus standi means that he has no right to appear or be heard in such and such a proceeding.”*** 1. The 1st Respondent has challenged the *locus standi* of the Applicant to institute the proceedings herein, on ground that being a joint venture the Applicant is an unincorporated entity hence lacks the legal capacity to sue. Further that Zhejiang Hairong Ocean Fisheries Company Limited being a foreign company cannot sue in Kenya for want of compliance with Section 974 of the Companies Act. 2. The Applicant submitted that the Applicant, whether as a joint venture or as Zhejiang, has proprietary interest in the marine vessels. As such it has a constitutional right to approach the Court. 3. The Applicant herein is Zhejiang Hairong Ocean Fisheries Company Limited (Zhejiang) which is in a joint venture with Everland Foods Limited (Everland). The exhibited certificates of registration of the marine vessels indicate Zhejiang in joint venture with Everland as the owner thereof. 4. Zhejiang is suing as the owner of the marine vessels having qualified to be registered as such, pursuant to Section 18(1)(e) of the Merchant Shipping Act which provides: ***Subject to section 50, a ship shall not be registered in Kenya under this Act unless the ship is owned wholly by persons qualified to own a Kenyan ship, namely—*** ***(e) individuals or corporations in bona fide joint venture shipping enterprise relationships with nationals of Kenya as may be prescribed;*** 1. Contrary to the contention by the 1st Respondent, Zhejiang being the Applicant herein, is an incorporated legal entity. Indeed, had Zhejiang not been a corporation, it would not have had the legal capacity to enter into a *bona fide* joint venture with Everland and the 1st Respondent would not have registered Zehjiang as the owner of the marine vessels, in joint venture with Everland. In the premises, the objection challenging the legal status of Zhejiang fails. 2. Having found as I have that Zehjiang is a legal entity the next issue to determine is whether Zhejiang has the requisite *locus standi* to institute the proceedings herein for non compliance with section 974 of the Companies Act which provides: ***(1) A foreign company shall not carry on business in Kenya unless—*** ***(a) it is registered under this Part; or*** ***(b) it has applied to be so registered and the application has not been dealt with within the period prescribed for the purposes of this section.*** ***(2) For the purposes of subsection (1), carrying on business in Kenya includes (but is not limited to)—*** ***(a) offering debentures in Kenya; or*** ***(b) being a guarantor for debentures.*** 1. Under Section 974, a foreign company that is not registered under Part XXXVII of the Companies Act is precluded from carrying on business in Kenya, which includes offering debentures or being a guarantor for debentures. There is nothing in this provision that strips a foreign company of the right to institute legal proceedings in Kenyan courts. Similarly, there is no specific provision in the Civil Procedure Act and Rules, under which the proceedings herein have been brought, that prohibits a foreign company from instituting a suit before Kenyan courts. 2. The right to access to justice is a hallowed right under the Constitution. Article 48 enjoins the State to ensure access to justice for all persons. Further, Article 50 guarantees to every person the right to a fair trial. Clause (1) thereof provides that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. Notably, the right to a fair trial is one of those listed in Article 25 that may not be limited. 3. Article 260 defines “person” to include a company, association or other body of persons whether incorporated or unincorporated. Accordingly, the cited provisions protect the rights of all persons including foreigners and foreign companies like Zhejiang to institute legal proceedings in Kenyan courts. 4. When Zhejiang in joint venture with Everland was registered by the 1st Respondent as the owner of the marine vessels, it acquired proprietary rights over the same. It follows that the Zhejiang has the right to approach the Court to protect its proprietary rights over the marine vessels. It cannot be that Zhejiang has the capacity to own the marine vessels but does not have the capacity to institute proceedings in court in relation to the said marine vessels. That would be an absurdity, more so because the party that conferred ownership of the vessels on Zehjiang is the same entity that now claims Zhejiang does not have capacity to sue. 5. In **Bruton Gold Trading LLC v Amadi (t/a Amadi Associates Advocates) & 6 others [2025] KEHC 12657 (KLR)** Gikonyo, J. considered the locus standi of a foreign company to sue and stated: ***44. Locus standi should therefore ‘be assessed in the broader constitutional context of access to justice, and not narrowly confined to compliance with company registration requirements.*** ***46. Legal personality or existence of a foreign company is not necessarily given through registration required under section 974 of the***[**Companies Act**](https://new.kenyalaw.org/akn/ke/act/2015/17)***.*** ***47. Locus standi of a foreign company is not also necessarily dependent upon registration requirement under section 974 of the***[**Companies Act**](https://new.kenyalaw.org/akn/ke/act/2015/17)***. Although ‘the question of registration, such as under Section 974(1) of the***[**Companies Act**](https://new.kenyalaw.org/akn/ke/act/2015/17)***, may be relevant in certain contexts, but is not, in itself, determinative of locus standi.*** 1. I find greater persuasion in this authority where the court assessed locus standi in the broader constitutional context of access to justice than in **Stichting Rabo Bank Foundation v Ava Chem Limited & another [2024] KEHC 9931 (KLR)** where the court found that the plaintiff therein lacked the *locus standi* to bring that suit on the sole ground that being a foreign company, it was not registered in Kenya. 2. After considering the foregoing, I find that Zhejiang has the requisite *locus standi* to institute the proceedings herein. This objection thus fails. 3. I now turn to the challenge to the verifying and further affidavits of Chen Xiangling, a director of Zhejiang. The 1st Respondent contends that the verifying affidavit is fatally defective for being drawn contrary to Section 5 of the Oaths and Statutory Declarations Act for not indicating the place where the oath was taken. Further that the alleged stamp is in Chinese and cannot be said to be of a notary public as the words therein have not been translated. 4. Section 5 of the Oaths and Statutory Declarations Act provides as follows: ***Every commissioner for oaths before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made.*** 1. I have looked at the jurat of the verifying and further affidavits. Although the date is indicated, the place the oath was taken is not indicated in the affidavits. Indeed, the part in the jurat provided for place is blank. 2. Further, the stamp for the person before whom the affidavit is purported to have been sworn is in Chinese and there is no translation. It is therefore not possible to know the person before whom the depondent swore the affidavit and whether such person is duly authorized to administer an oath. My finding is that the affidavits as drawn are not in compliance with the mandatory provisions of Section 5 of the Oaths and Statutory Declarations Act. 3. Section 86 of the Civil Procedure Act stipulates the languages of the court as follows: ***The language of the High Court and of the Court of Appeal shall be English, and the language of subordinate courts shall be English or Swahili.*** ***Written applications to the High Court and to the Court of Appeal shall be in English and to subordinate courts in English or Swahili.*** 1. All applications and evidence in support thereof must be in the official language of the Court. It is trite that any document in a foreign language must be accompanied by an official and accurate translation into the court's official language for it to be admissible as evidence in court. 2. I now turn to the annexures to the verifying and further affidavits. Rule 9 of the Oaths and Statutory Declarations Rules provides: ***All exhibits to affidavits shall be securely sealed thereto under the seal of the commissioner, and shall be marked with serial letters of identification.*** 1. Under the above provision, the requirement for the sealing and numbering of the annexures to an affidavit by a commissioner for oaths is a mandatory requirement. In **Francis A. Mbalanya v Cecilia N. Waema [2017] eKLR**, Angote, J. addressing his mind to Rule 9 stated: ***15. It is trite in law that an affidavit and the annextures attached on it constitute evidence. Indeed, where a person seeks to proof a fact byway of Affidavit, he is obligated to exhibit any document on his affidavit.*** ***16. However, before such a document can be received in evidence by the court, the law requires that such a document must be sealed by the Commissioner for Oaths.*** ***17. The law that requires the sealing and marking of annextures with serial letters is in mandatory terms, and must be complied with.*** ***18. Although the Plaintiff’s’ advocate submitted that the failure to seal and mark the annextures I sa defect in form that should be ignored by the court, the law has declared in mandatory terms that annextures must be sealed and number. That is the only way they can be allowed on record.*** 1. A similar position was adopted by Mabeya, J. who in the **Bruton Gold Trading LLC** case (supra), stated: ***In*** the ***present case, not only were the annextures not produced before the Notary Public before whom the oath was taken, they were all together not sealed by the Commissioner for Oaths who purported to seal them. They only contained a mark or stamp of an unkown Commissioner for Oaths at Nairobi who never signed or marked them as a sign of authentication. They amount to but mere pieces of papers and cannot amount to evidence in support of the averments in the supporting affidavit. They are therefore struck out.*** 1. In the present case, none of the annexures to the verifying and further affidavits of Chen Xiangling were securely sealed under the seal of the commissioner as required under Rule 9. This is a mandatory requirement which has been contravened. 2. In the end, I do find that the verifying and further affidavits which have not indicated the place where the oaths were taken, and which do not have a translation into the language of the court as regards before whom the oaths were taken, are fatally defective. Similarly, the annexures thereto which are not sealed as required by law are also fatally defective. They are all struck out. 3. With the affidavits having been struck out, what is the fate of the Application? Order 51 Rule 4 of the Civil Procedure Rules provides: ***Every notice of motion shall state in general terms the grounds of the application, and where any motion is grounded on evidence by affidavit, a copy of any affidavit intended to be used shall be served.*** 1. It is trite that affidavits are evidence as they contain the grounds upon which an application is premised. Following the striking out of the verifying and further affidavits herein, together with the annexures thereto, the Application is bereft of evidence and rendered incompetent. 2. Having so found, the Court need not delve into the issue of the propriety of the impugned gazette notice no. 14740 of 25.10.24 and the claim of violation of the Applicant’s rights. 3. In the end, I uphold the preliminary objection with the result that the Application dated 13.3.25 is struck out with costs to the 1st Respondent. **DATED SIGNED and DELIVERED in MALINDI this 31st day of July 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **M. THANDE** **JUDGE**