[2017] KEHC 10011 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

COMMERCIAL AND TAX DIVISION

CIVIL SUIT NO. 62 OF 2014

SAFARICOM LIMITED......................................................PLAINTIFF

VERSUS

EMIRATES AIRLINES...........................................1ST DEFENDANT

TRANSGLOBAL CARGO CENTER LIMITED....2ND DEFENDANT

RULING

1. The application before me is for the striking out of the plaint.

2. The applicant is the 1st defendant, EMIRATES AIRLINES.

3. The 2nd defendant, TRANSGLOBAL CARGO CENTRE LIMITED, has supported the application.

4. It is the applicant’s case that the plaint did not disclose any cause of action.

5. Secondly, the applicant reasoned that the failure by the plaintiff to lodge a Complaint, in compliance with the MONTREAL CONVENTION rendered the suit fatally defective.

6. In answer to the application, the plaintiff, SAFARICOM LIMITED, submitted that the plaint in issue disclosed triable issues. The first such issue, as far as the plaintiff was concerned, was the question as to whether or not a Complaint was lodged, in compliance with the law. It was emphasized that that issue could only be resolved after the court had given due consideration to the evidence tendered by the parties.

7. The plaintiff said that it would be leading evidence to demonstrate that Emirates Airlines was indeed notified within the timelines set out in the Treaty, that the shipment arrived in less than perfect condition.

8. The plaintiff also drew attention to the fact that in the 2nd Defendant’s Defence, the said defendant had pleaded Indemnity against the 1st defendant, for any liability in respect of any and all consequential loss and damage as may be ordered against the 2nd defendant.

9. It is the opinion of the plaintiff that the claim for an Indemnity raises triable issues and discloses a cause of action against the 1st defendant.

10. The plaintiff then cited the decision in KENYA AIRFREIGHT HANDLING LIMITED Vs INDEMNITY INSURANCE COMPANY of NORTH AMERICA & 3 OTHERS, CIVIL APPEAL No. 217 of 2000, to back its case. In that authority, the Court of Appeal had said;

“It is clear from the submissions of both counsel that the applicability and the interpretation of the Convention and the Act could not be resolved conclusively in the application before the learned Judge by merely looking at the pleadings. Far from it. The matter is complex. It is for trial. For example, did the Convention apply to the carriage? Also, what is the legal relations between the parties to the suit. This could not be clearly gleaned from the pleadings?.

11. The learned Judge of Appeal noted that the pleadings had raised the issue of Bailment, which they described as;

“… a subject which is difficult both to classify and to define.

…. As to whether the relationship between the parties fell under contract or not or is one of bailor and bailee, is to our minds an arguable point which can only be resolved at the trial?.

12. It is also noteable that the question of time was also a factor in that case, as can be gleaned from the following words of the Court;

“As to whether the action is extinguished or not we think that the learned Judge could only reach a decision after interpreting the date on which the carriage begun and stopped or the consignment ceased to be in the charge of the carrier?.

13. In the case before me, the plaintiff did not file an affidavit or any other evidentiary document to demonstrate that it had served a Complaint upon the 1st defendant; informing the airline that the shipment had arrived in less than perfect condition.

14. The question as to whether or not the defendant was duly notified timeously, came up in the plaintiff’s submissions.

15. It is well settled that submissions are neither pleadings nor evidence. Submissions are statements made by advocates or parties, to support, clarify or substantiate the pleadings and/or evidence tendered. Submissions are also the medium through which an advocate or a party seeks to demonstrate the weakness or irrelevance of authorities cited by the other party.

16. Therefore, when the plaintiff submitted it would be demonstrating that it had served a Complaint timeously, upon the defendants, that does not constitute a denial of the assertion by the 1st defendant, concerning the non-service of a complaint.

17. In KODAK LIMITED Vs LYNDALVAN AIR FREIGHTERS & FORWARDERS LTD & 2 OTHERS, Hccc No. 1221/1999 (Milimani) Mbaluto J. said;

“Consequently, where in an application such as the one before me, an allegation is made that notices required by law to be given were not given, and that the suit is thereby extinguished or that the suit is incompetent, which allegation is denied by the other side, it is obvious that the dispute cannot be resolved without recourse to evidence, which in turn means that the matter cannot be the subject of an application under Order V1 rule 13 (1) (a). It follows from the foregoing that this application is misconceived and must be dismissed with costs?.

18. When determining an application for striking out a pleading, when the applicant had asserted that the pleading does not disclose a cause of action or, that it does not disclose any reasonable defence, the court is enjoined to limit itself to considering the pleadings.

19. In this case, the court would have to limit itself to considering the Plaint and the Defence.

20. At paragraph 24 of the Plaint, it was stated thus;

“The 1st Defendant is liable for damage sustained in the event of the destruction or loss of, or damage to any cargo if the occurrence which caused the damage so sustained took place during the carriage by air?.

21. It is therefore the plaintiff who placed the claim within the ambit of compensation sought because the damage in issue took place during Carriage by Air.

22. Therefore, this case is distinguishable from KENYA AIRFREIGHT HANDLING LIMITED Vs INDEMNITY INSURANCE COMPANY of NOTH AMERICA & 3 OTHERS, CIVIL APPEAL No. 217 of 2000, because in this case, it is common ground that the matters in issue, took place during carriage by air. It follows, therefore, that the applicability of the MONTREAL CONVENTION is not an issue in this case.

23. Indeed, the plaintiff does not appear to be challenging the applicability of the Convention.

24. If anything, the plaintiff appears to be confirming that the Convention was applicable. It then added, through its submissions, that it had complied with the requirement for the timely service of a complaint.

25. As regards the date when the Cause of Action accrued, paragraph 16 of the Plaint states thus;

“Between 25th and 27th December 2012, flood water entered the 2nd Defendant’s warehouse and inundated the floor where the plaintiff’s cargo were stowed, causing extensive damage thereto?.

26. Clearly, therefore, the plaintiff identified the exact period of time and dates when the damage was caused to the cargo.

27. It thus follows that, going by the plaintiff’s pleading, a complaint ought to have been lodged with the airline within 14 days, from 27th December 2012.

28. Pursuant to Article 31 (2), (3) and (4) of the Convention for the Unification of certain rules of International Carriage by Air (The Montreal Convention) of 28th May 1999;

“(2) In the case of damage, the person entitled to delivery must complain to the carrier forthwith after the discovery of the damage, and, at least within seven days from the date of receipt in the case of checked baggage and fourteen days from the date of receipt in the case of cargo. In the case of delay, the complaint must be made at the latest within twenty-one days from the date on which the baggage or cargo have been placed at his or her disposal.

(3) Every complaint must be made in writing and given or dispatched within the times aforesaid.

(4) If no complaint is made within the times aforesaid, no action shall lie against the carrier, save in the case of fraud on its part?.

29. Going by the plaintiff’s pleading, concerning the date when the cause of action accrued, a written Complaint ought to have been given to the carrier by 10th January 2013.

30. As the carrier’s Defence made it clear that the said carrier would, at the earliest possible opportunity, apply to have the suit struck out due to the failure by the plaintiff to give the requisite Notice or Complaint, the plaintiff ought to have filed a Reply to Defence, to challenge that assertion.

31. But the plaintiff did not file a Reply to Defence.

32. The point I am making is that, whilst evidence is not admissible in an application which seeks to strike out a pleading which is said to disclose no cause of action or defence in law, the plaintiff had sufficient notice (in the Defence), which ought to have prompted it to file a Reply to Defence.

33. As the plaintiff made a choice, not to file a Reply to Defence, I find that there is no denial, in the pleadings, to the 1st defendant’s assertion, that the plaintiff failed to give a Complaint to the carrier, within the time allowed by law.

34. I am alive to the fact that the striking out of a plaint or a defence is a task which the court must be very slow to undertake. It is a step which should only be taken when the court is convinced that the case was so hopeless that it cannot be cured by an amendment.

35. In this case, the applicant has pointed to the fact that the only Notices or Complaints which the plaintiff has exhibited, do not comply with the law.

36. But the plaintiff insists that it will be in a position to demonstrate to the court that it did give the requisite compliant Notice or Complaint.

37. Much as the plaintiff failed to utilize the opportunity of providing that demonstration through a Reply to Defence, I am unable to conclude that if given the chance, the plaintiff would be unable to provide the requisite Notice or Complaint.

38. In TIVERTON ESTATES LIMITED Vs WEARWELL LIMITED [1974] 1 ALL E.R. 209, Lord Denning said;

“There is no point in going formally to trial when the discussion at the trial would be merely a repetition of the discussion on the summary procedure. We have often decided cases under 125 C Order 14 when the only point is one of construction, even though it is a difficult and arguable point. So also under R S C Order 86, in regard to which RusseL L J said, in Bigg Vs Boyd Gibbins Ltd;

‘ …if one has simply a short matter of construction, with a few documents the learned Judge, on his summary application should simply decide what is, in his judgement, the true construction’.

39. Of course, those views were expressed in applications for judgement on Admission. Therefore, they may not be applicable to applications for striking out.

40. Having come to the conclusion that there might be a possibility that the plaintiff could demonstrate that it had given the requisite Notice or Complaint within the time stipulated in Article 31 (2), (3) and (4) of the Montreal Convention, I find that the case is not so hopeless that it must be struck out.

41. Accordingly, the 1st defendant’s application is dismissed.

42. However, I order that the costs of the said application shall be in the cause. Whichever party is ultimately successful in the substantive case, shall also be awarded the costs of the application dated 1st March 2017.

DATED, SIGNED and DELIVERED at NAIROBI this9th dayof October2017.

FRED A. OCHIENG

JUDGE

Ruling read in open court in the presence of

Miss Asekenye for Madialo for the Plaintiff

No appearance for the 1st Defendant

Okoth for the 2nd Defendant.

Collins Odhiambo – Court clerk.