[2022] KEHC 11839 (KLR)

Target Ship Chandlers v The Owners of Motor Vessel F.V.R. A Horakhty (Admiralty Claim E004 of 2022) [2022] KEHC 11839 (KLR) (1 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11839 (KLR)

Republic of Kenya

In the High Court at Mombasa

Admiralty Claim E004 of 2022

OA Sewe, J

July 1, 2022

Between

Target Ship Chandlers

Plaintiff

and

The Owners of Motor Vessel F.V.R. A Horakhty

Respondent

Ruling

1. The claimant filed this claim on April 25, 2022 seeking judgment against the respondent in the sum of Kshs 14,333,560/= together with interest at commercial rates and costs of the suit. The plaintiff’s cause of action was that, at all times material to the suit, it entered into a Chandling Agency Agreement with the respondent to supply the subject vessel with stores, equipment and foodstuff for the maintenance of the respondent and the crew members on board; and that the claimant serviced the contract by supplying goods, foodstuff and equipment worth Kshs 14,333,560/= between August 2020 to February 2022; particulars whereof have been supplied in the claim Form dated March 29, 2022.

2. Thereafter on the May 19, 2022, the claimant filed the instant application dated May 18, 2022 seeking orders that:(a)The application be certified urgent and service thereof be dispensed with in the first instance;(b)The court be pleased to enter judgment in default for the claimant against the respondent; and,(c)The costs of the application be provided for.

3. The application was premised on the grounds that although the claim form was duly served, the respondent is yet to either file an acknowledgment of service or file defence to the claim, which is for a liquidated amount. It was further the contention of the claimant that the vessel is about to be sold in satisfaction of a judgment in another claim, being Admiralty Claim No E003 of 2021; and therefore there is a high likelihood that the proceeds might be paid out before this claim has crystalized, thereby rendering it nugatory.

4. The foregoing grounds were expounded on in the supporting affidavit sworn on May 17, 2022 by Loise Mumbi Mwangi, to which she annexed a copy of the Chandling Agency Agreement dated August 10, 2020, copies of the various delivery notes duly acknowledged by both the master and the registered owners of the vessel. The claimant also exhibited a copy of a letter dated January 22, 2022 (annexure LMM-5), by which the registered owners of the vessel wrote back acknowledging the outstanding debt and promising to pay within two weeks.

5. To demonstrate that the vessel is on the verge of being sold through a judicial sale in respect of a separate claim, namely, Admiralty Claim No E003 of 2021, the claimant exhibited a copy of the newspaper advertisement marked annexure LMM-6 and added that, should that sale proceed as scheduled, there is a high likelihood that there would be nothing left to satisfy the decree herein, thus rendering these proceedings nugatory. It was thus the averment of the claimant that it is only fair and just that the application be allowed and orders granted as prayed.

6. The affidavit of service sworn by Eric Echesa Okumu filed on May 23, 2022 confirms that the application dated May 18, 2022 was duly served on Seo Hyundo the master of the subject vessel on the May 20, 2022. There is further proof, vide the affidavit of service sworn by the same court process server, Eric Echesa Okumu, that a hearing notice dated June 20, 2022, was likewise served on Seo Hyundo on the same day of June 20, 2022 at 10. 00 am; and that service was duly acknowledged by signing, stamping and dating the service copy of the hearing notice.

7. Part 61 of the English Civil Procedure Rules, as imported by section 4 of the Judicature Act, Chapter 8 of the Laws of Kenya, provides that:(1)In a claim in rem (other than a collision claim) the claimant may obtain judgment in default of –(a)an acknowledgment of service only if at the date on which judgment is entered–(i)the defendant has not filed an acknowledgment of service; and(ii)the time for doing so set out in rule 61. 3(4) has expired; and(b)defence only if at the date on which judgment is entered –(i)a defence has not been filed; and(ii)the relevant time limit for doing so has expired.

8. The respondent neither resisted the application nor attended court to defend itself. On the basis of the material placed before the court by way of the claimant’s supporting affidavit and its annexures, it is manifest that the owners of the subject vessel are truly indebted to the claimant to the tune of Kshs 14, 333,560/= as claimed. The claimant exhibited not only requisitions, delivery notes and invoices in support of the claim but also a letter dated January 22, 2022 vide which the respondent acknowledged the debt and promised to pay in two weeks. The letter reads as follows in part:“We acknowledge receipt of your letter dated January 10, 2022 regarding your overdue accounts as stated on the subject reference.We do appreciate your patience and support to our business since we commenced the business partnership. We regret that we haven’t been able to settle the subject account despite our anticipation of various financial injections to our cash flows.We do however commit to settle the account in full within 2 weeks from proceeds of sale. Kindly bear with us and in the meantime do request for your continued support for all the provisions to the vessel.Kindly hold back the anticipated legal action as we anticipate good working relations thereafter...”

9. In the premises, I am satisfied that the application dated May 18, 2022 is meritorious. The same is hereby allowed and orders granted as hereunder:(a)That default judgment be and is hereby entered in favour of the claimant against the respondent in the sum of Kshs 14,333,560/= together with interest at the prevailing commercial rates from the date hereof until payment in full.(b)Costs of the application and of the suit be borne by the respondent.

10. It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 1ST DAY OF JULY 2022. ___________________________OLGA SEWEJUDGE