[2023] KEHC 24144 (KLR)

Victoria Pumps Limited & another v Kenya Ports Authority & 4 others (Civil Suit 1 of 2000) [2023] KEHC 24144 (KLR) (24 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24144 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Suit 1 of 2000

DKN Magare, J

October 24, 2023

Between

Victoria Pumps Limited

1st Plaintiff

Kenya Haulage Agency Limited

2nd Plaintiff

and

Kenya Ports Authority

1st Defendant

Inchcape Shipping Services Kenya Limited

2nd Defendant

Ocean Freight (Ea) Limited

3rd Defendant

Mediterranean Shipping Company (Pty) Limited

4th Defendant

Consolidated Marine Service Pvt Limited

5th Defendant

Judgment

1. This suit was filed vide a Plaint dated 23rd December 1999. This was Amended on 14th February 2000 and Further Amended on 14th September 2018. The Plaintiffs further Amended the pleadings on 4/7/2023 just before the hearing. the plaintiff pleaded among others that:i.At all material times, the 1st Plaintiff was the importer of two containers numbers TRLU 3302547 and TRLU 3238598 containing hand pumps and spares from Mumbai to Mombasa.ii.The 1st Plaintiff as the owner of the goods appointed the 2nd Plaintiff to clear and forward the goods to Kampala.iii.The Plaintiffs expected the goods to arrive in Mombasa in the normal freight period of one week but due to the negligence of the 2nd and 5th Defendants, the goods passed Mombasa to Durban and were about one month later brought to Mombasa on a vessel handled as agents by the 3rd Defendant.iv.Upon the goods arriving in Mombasa, the 2nd Plaintiff complied with all the procedures and made all payments to the satisfaction of the 1st Defendant and Customs and Excise Authorities and on 30th November 1999, the Customs and Excise Authorities released the containers to the 2nd Plaintiff who obtained wagons from the Kenya Railways for transportation of the Containers.v.On or about 20th November 1999, the 3rd Defendant wrote a letter to the 1st Defendant instructing the 1st Defendant not to release any goods arriving a board MSC Angela to any party except the 3rd Defendant as a result of which the 1st Defendant declined to release the Cargo to the 2nd Plaintiff.vi.The Plaintiffs obtained order of court on 31st January 2002 directing the 1st Defendant to release the containers numbers TRLU 3302547 and TRLU 3238589 but the 1st Defendant released only container number TRLU 3302547 which remains and has never been released to date in disobedient of the Court Order.vii.As a result of the failure to release the container, the Plaintiffs suffered loss of the value of the goods therein and damages in terms of the purchase price, voyage, customs and forwarding charges that the Plaintiff had incurred to secure the release of the said container.viii.Further, that container number TRLU 3302547 was released on 23rd May 2012 and the Plaintiffs claim loss of profits for failure to utilize the goods from the date of filing the suit to the date of release at the rate of US $18149. 40 per annum with interest.ix.The Defendants jointly and severally owed a duty of care to the Plaintiffs to carry out their duties to ensure clearance and release of the goods in the two containers within the reasonable period of 30 days of the date of arrival of the vessel which they failed.x.The Plaintiffs’ particularized monetary compensation relating to Container Numbers TRLU 3302547 and TRLU 3238589 is USD.1,017,697. 79 and USD. 1,162,072. 92 respectively making a total of USD. 2,179,670. 71. xi.Consequently, the Plaintiffs sought a mandatory injunction against the 1st and 3rd Defendants to release Container Numbers TRLU 3302547 and TRLU 3238589 and the cargo therein to the Plaintiffs; exemplary and aggravated damages together with interest at court rates from the date of filing the Further Amended Plaint; and Special Damages of US $2,179,670. 71 and Cost of the suit.

2. The claim was amended vide an Application dated 3/7/2023 to 734,542. 32. A substantial claim over the initial amount of 2,179,670. 71 was this withdrawn.

3. The Plaintiff sought a mandatory injunction to compel the 1st and 3rd Defendants to release containers No. TRLU 3302547 and TRLU 323898 and cargo therein to the Plaintiffs and exemplary and aggravated damages.

4. The Amendment was allowed on the day of hearing. the plaintiff had sought to have an adjournment. This matter has been in Court since 7/1/2020 that is a record 23 years 10 months till today. The Court had to put its foot down since parties were playing games. I used to be an ardent but unwilling follower of Games People Play an American drama television series, based on the novel Games Divas Play written by Angela Burt-Murray.

5. The 1st Defendant filed its Statement of Defence dated 7th January 2000, Amended on 20th August 2007 and Further Amended Defence and Counterclaim on 10th December 2018 in which it averred, inter alia, that:a.That the 1st Defendant was unable to release to then the Plaintiffs as there was a dispute between the 2nd and 3rd Defendants as to the proper shipping agent between the two agents.b.Container number TRLU 3238598 was deposited to the customs warehouse and subsequently sold by auction as per regulation 221 of the East African Harbour Regulations, 1970. c.The 1st Defendant avers that it is ready to release container number TRLU 3302547 as the Plaintiffs may require but pray that such order should indicate the Party that shall secure all the customs and port charges.d.Section 23(1) of the Kenya Ports Authority Act limits the liability of the authority due to any delay in the delivery of goods and in any case the claim shall not exceed such declared value of the goods.e.The 1st Defendant’s Counterclaim raised the following averments:a.The Plaintiff received the Defendants’ subject containers for storage only as bailee for reward.b.The subject containers could not be released to a dispute between the agents.c.The 1st Defendant in the counterclaim states particulars of the storage charges and claims USD. 549,912. 00 being storage charges levied against container number TRLU 3302547 with interest and costs at court rates.

6. The 3rd Defendant filed its defence with bundle of documents dated 30th January 2019 denying the allegations by the Plaintiffs.

7. It was its case inter alia that the 3rd Defendant was not party to the initial contract of carriage vide bill of lading number DELMOM 334699 P/C.

8. It was further pleaded that the 3rd Defendant was the lawful local shipping agent on vessel Angela duly appointed by the operators, the 4th Defendant.

9. At the last hearing the Plaintiff’s witness summed up with a witness who did not have any report and was not on any list. There was also nothing to testify on in terms of witness statement. On objection by the defendant, the plaintiff’s witness was ruled not able to testify.

10. The Advocate for the Plaintiff, Mr. Gikandi Ngibuini, requested that I record that he was walking out in protest. He came back and I again recorded that he was walking away. Subsequently, on 28/9/2023, he had a change of mind and wanted me to review my order and have the case re-opened.

11. Upon the Application being argued, I made a ruling on 18/9/2023, dismissing the same in limine. In the case, I said as doth: -“This particular witness could not testify without his evidence being on record. The court so ordered and thereafter closed the Plaintiff’s case as he was unable to close. After closure, the court watched with horror as the Plaintiff’s Mr. Gikandi Ngibuini told the court that he was walking out. Before doing so, he sought stay which was declined. He requested that I record that he was walking out in protest. He came back and I again recorded that he was walking any again.I recorded as I mentally noted the lyrics by Craig David on ‘I am walking away.’“I'm walking away from the troubles in my lifeI'm walking away.”I'm walking away oh to find a better dayI'm walking away from the troubles in my lifeI'm walking away oh to find a better dayDespite the walk out the court did not descend into the arena to punish anyone. The case proceeded. As the case was proceeding, the Plaintiff’s advocate was hovering around the court.”

12. I recalled with nostalgia, the words of Kenny Rogers, in the coward of the county,“Promise me, Son, not to do the things I've doneSon, you don't have to fight to be a man.”I hope you're old enough to understandNow it won't mean you're weak if you turn the other cheekWalk away from trouble if you can

13. I digress. I dismissed the application to reopen the suit as I could not sit on appeal from my own decision. Further, the grounds were the same as the oral application I had dismissed. Regarding re-opening, there was no mistake. The plaintiff simply walked away. The right to be heard does not mean that one has to speak. They can keep quiet or walk away. In the case of SM v HGE [2019] eKLR, Justice W Musyoka held as doth: -“10. The court, in Pinnacle Projects Limited vs. Presbyterian Church of East Africa, Ngong Parish & another [2018] eKLR, had the following to say on Article 50 with respect to fair trial principles in civil cases:“While the wording of Article 50 of the Constitution on the right to a fair hearing prima facie seems to focus on criminal trials it’s not lost that fair trial in civil cases includes: the right of access to a court, the right to be heard by a competent independent and impartial tribunal, the right to equality of arms, the right to adduce and challenge evidence, the right to legal representation, the right to be informed of the claim in advance before the suit is filed, the right to a public hearing, and the right to be heard within a reasonable time.”

11. The court went on to say:“… it is important that in any judicial process adjudication parties involved be given opportunity to present their case and have a fair hearing before the decision against them is made by the respective judge or magistrate. It is not lost that procedural fairness is deeply ingrained in our administration of justice system.Although in particular circumstances errors, omissions, missteps and blunders are made by parties or their counsels during pretrial or in the course of trial to find appropriate balance fundamental requisite of due process of law should be accorded a purposeful meaning to protect right to a fair hearing. The Civil Procedure Act and Rules provides for time-frame rules and commitments for parties to comply with discovery; dates for closure of pleadings, filing of witness statements, production of expert material where applicable, scheduling of cases and disposition dates. Needless to say that all these commitments are aimed at each litigant to have adequate notice and fair understanding of the litigation road ahead of time disposition …”

14. Further, In Patrick Muchiri v Agnes Mumbi Ng’ang’a [2018] eKLR, Justice M A Odeny, stated as doth: -“The principles governing the exercise of judicial discretion in setting aside ex parte judgment are as was set out in the Court of Appeal case of Pithon Waweru Maina V Thuka Mugiria [1983] eKLR, which held as follows:“The principles governing the exercise of judicial discretion to set aside an exparte judgment obtained in default of either party to attend the hearing are:a)Firstly, there are no limits or restrictions on the judge’s discretion except that it should be based on such terms as may be just because the main concern of the court is to do justice to the parties.b)Secondly, this discretion is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice. Shah v Mbogo [1967] EA 116 at 123B, Shabir Din v Ram Parkash Anand (1955) 22 EACA

15. Before we proceeded for hearing, the Plaintiffs orally applied that the case against the 2nd and 5th Defendants be withdrawn with no order as to costs. Counsel for the 1st, 2nd and 3rd Defendants conceded to the Application and the suit against the 2nd and 5th Defendants was consequently withdrawn with no orders as to costs.

16. The Court was also informed that the 4th Defendant had earlier applied and was struck out of the pleadings as a party vide the Ruling of Court dated 4th December 2015.

17. The suit thus proceeded as against the 1st and 3rd Defendants only.

18. Further, counsel for the Plaintiff applied and by consent of the parties in Court during the hearing on 4th July 2023, the Plaintiffs’ claim for special damages was also reduced from USD. 2,179,670. 71 TO USD. 734,542. 32. in other words, a claim for US $1,445,128. 39 was withdrawn.

19. During the hearing, PW1, Patrick Nduva Munyao relied on his Written Witness Statement and Bundle of Documents both dated 11th March 2023 and the further list of documents dated 14th April 2018 produced in evidence and testified that he does clearing and forwarding for the 1st Plaintiff’s goods.

20. In cross examination by counsel for the 3rd Defendant, the said witness stated that the 1st Plaintiff imported container No’s TRLU 3302547 and TRLU 328598 through Consolidated Marine Ocean Freight, who were not party to it. He further stated that the 1st Plaintiff was only a notifying party and referred to page two of the Plaintiffs’ Bundle of Documents.

21. He stated that the cargo was delivered to Mombasa under the Bill of Lading No. MSCU-D1870288 using the Ship known as HIJAZ and which delivered to Durban instead of Mombasa and the shipper was Consolidated Marine Freight Services while the Consignee was Inchcape Shipping Kenya Limited.

22. Further in cross examination, the stated that the Plaintiffs were not party to the carriage from Durban to Mombasa per the Bill of Lading which required Inchcape Shipping Services Limited to clear the cargo but they failed to do so.

23. He further stated that Ocean Freight EA was the only agent representing Mediterranean Shipping Co. (Pty) Limited. The witness also confirmed that if Inchcape wanted the Plaintiffs to clear the cargo, they would have indicated as endorsed on the Bill of Lading.

24. He also testified that the Plaintiff did not contract MSC and Ocean Freight and whoever contracted them should pay their service and it is not the Plaintiff.

25. The witness had no claim against Consolidated Marine and Inchcape Shipping. On further, Cross examination by Counsel for the 1st Defendant, it was his testimony that a Bill of Lading is a contract between a shipper and consignee and the shipper was AMI India Logistics and consignee was Transami (K) Ltd and the shipping line was Consolidated Marine Services and Inchcape its agent.

26. He stated that the Plaintiffs were not party to the new contract between Consolidated Marine and Inchcape Shipping. Inchcape shipping was the new consignee. He acknowledged that parties to the contract from India were not party to the suit.

27. It was his testimony that Inchcape were not agents for Mediterranean Shipping and they issued a delivery order against another bill of lading with consignee as Transami and ship not HIJAZ but MSC Angela. It was also for a vessel from Durban, in the republic of South Africa.

28. It was his evidence that Inchcape- shipping had no authority over the Bill of Lading from Durban and referred to exhibit 5 at page 8 of the Plaintiffs’ Bundle of Documents. He Stated that there was no bill of lading from Durban that would have released the cargo as the one from Mumbai was the only one that could. Either, the Plaintiff did not understand international commerce or decided otherwise.

29. In the case of George Arab Muli Mwalabu v Senior Resident Magistrate Kangundo & 2 others; Festus Mbai Mbonye (Interested Party) [2019] eKLR, Justice G V Odunga, stated as doth on this issue: -“35. Parties who approach the seat of justice ought to base their application on facts which they believe are true. A party who sets out to twist the facts the way the applicant has done herein is clearly contemptuous of the court and I can do no better than to quote the case of Matatiele Municipality & Others vs. President of the Republic of South Africa & others (1) (CCT73/05) (2006) ZACC 2: 2006 (5) BCLR (CC); 2006(5) SA 47 (CC) that:“in my view a person who deliberately either by commission or omission misleads the court and the public that a particular state of affairs exist while knowing very well that that is not the position cannot be said to be open, candid and transparent. Dishonest in my view is an Act which is antithesis to transparency and vice versa…”

36. I associate myself with the lamentations of Madan, J (as he then was) in N vs. N [1991] KLR 685 when he expressed himself in the following terms:“I wish people would not tell me absurd and unbelievable lies. I feel disappointed if a lie told in court is not reasonable imitation of the truth and is not reasonably intelligently contrived. I wish people who tell lies before me would respect my grey hair even if they consider that my intelligence is not of high order. I wish the witness had not told me the most stupid of his lies, which both disappointed and made me feel intellectually insulted.”

30. Further he stated that Inchcape did not tell him why the cargo was not released when he wrote to them. That the cargo was offloaded through the letter from Ocean Freight East Africa limited and parties had 30 days for collect the same. After 3 months, the goods are taken to the Kenya Revenue authority customs warehouse.

31. He also stated that one container was auctioned. That the Plaintiffs went to clear 10 years after they obtained an Order of Court and so storage charges were cleared in 2012.

32. Further, that the Plaintiffs requested for a waiver of the US $205,000 and paid clearing charges of about US $700,000.

33. In re-examination, the witness reaffirmed that the shipper was AMI India and that the 1st Plaintiff’s clearance was done by 12th October 1999 and the two containers but have got only one container. The plaintiff attempted to call some witness who had not filed any statement or report. He turned up in the morning of the hearing date. I was satisfied that the witness was a ruse to keep the case in court, and obfuscate issues to derail the wagon of justice.

34. On objection by Mr Wafula for the first defendant and concurrence of counsel for the 3rd Defendant, I disallowed the witness. In utter disrespect of the court counsel for the Plaintiff, Mr. Gikandi Ngibuini decided to walk out of the court. Though, in contempt of the court, the court could not fall into the obvious trap set for the parties. The matters had to proceed as I had already disallowed an adjournment.

35. The 1st Defendant called one witness, Kevin Bartoo. DW1. He relied on his witness statement dated 3rd July 2023 and Bundle of Documents of even date and produced as exhibits the documents number from 1-17.

36. In support of the Counterclaim, the 1st Defendant sought storage charges of US $549,912. 00 due and payable as storage charges levied against the Container TRLU 3302547.

37. The basis of the counterclaim was that the subject container could not be released due to the dispute between the 3rd and 4th Defendants as to who was the proper shipping agent.

38. The Plaintiff’s advocates Mr. Gikandi Ngibuini, having walked out, after being refused the bid to produce a ghost witness. Though in the court precincts, he was not available to cross examine the defence witness. He came in when the 3rd defendant’s witness was being sworn in, only to inform the court that he had left his phone when he left in hurry, and was kind enough to wish the court a nice day. The court indeed hand a wonderful day, full of drama and exuberance.

39. The 3rd Defendant on its part called DW2, one Mose Mwaliko, who also relied on his witness statement dated 18th December 2018 and bundle of documents dated 30th January 2019. He produced the 6 documents therein as exhibits and closed his case. Their case was that they had no privity of contract wit the plaintiff. They were agents for the Mediterranean Shipping Company (Pty) Limited, whose case was terminated.

40. The 1st and 3rd defendants closed their cases without cross examination of their witness. The co-defence counsel had no questions while Mr. Gikandi had walked away earlier. It is important to commend him that in spite of walking away, he remained respectful and courteous throughout. The Court directed parties to file their respective written submissions by 15th August 2023.

41. Parties filed voluminous submissions, which I have painstakingly read and analyzed.

Plaintiff’s submissions 42. The Plaintiff first submitted the propriety of having 2 Advocates act for 2 different parties. I shall revert on this substantively in the analysis.

43. It was submitted that the Plaintiff imported the two containers TRLU 3302547 and TRU 323898 from Mumbai. These were spare parts and hand pumps. The Plaintiffs are said to have instructed the 5th Defendant to do the shipping. The 2nd Defendant were the local agent of the 5th defendant. Due to negligence of the defendants the cargo was taken to Durban South Africa and re-routed to Mombasa. The 2nd Defendant was said to be the consignee.

44. It is important to point out that the alleged negligence was attributed to the import and shipping from India to Mombasa. The shipping line and their agents were removed from the case.

45. It was further submitted that the Plaintiff paid all dues but the 1st Defendant refused to release the containers that the court ordered released. Only one container was released that is TRLU 3302547. The other was not released. They state that the container was eventually sold by the Kenya Revenue Authority. They hold the 1st Defendant responsible for the container.

46. The Plaintiff submitted these issues: -i.Whose fault is it for failure to release container.ii.Whether the containers are property of the Plaintiff and whether the refusal and detention amounted to conversion.iii.Whether the Plaintiffs are entitled to damages.

47. In the aspect of fault, it was submitted that the 1st Defendant has a duty to manage imports. There powers are said to be pursuant to Section 12 of the KPA Act.

48. The Plaintiff relied on the Ruling by Waki Judge (as he then was) and issuance of Port release order in this matter. The release order was made on the basis of the facts set out in the affidavits before him.

49. They also relied on the case of John Mburru =vs= Consolidated Bank of Kenya (2018) eKLR to question the Defence evidence.The Plaintiff further relied on the decision of Ngongesa & 4 Others =vs= Egerton University College (1990) eKLR and submitted that the other container No. TRLU 328598 has not been released to date despite the court order and was guilty of breach of the rule of law. They relied on several authorities.

50. It was their views that an order issued is binding and ought to be obeyed. There relied on the case of Trusted Society of Human Rights Alliance =vs= Cabinet Secretary for Devolution and Planning & 3 Others (2017) eKLR, where the Court stated as doth:“An order passed by a competent court, whether interim or final has to be obeyed without any reservation. The Constitutional Court of South Africa, in Burchell v. Burchell[8] underlined the importance to the rule of law, of compliance with court orders in the following terms:-“Compliance with court orders is an issue of fundamental concern for a society that seeks to base itself on the rule of law. The Constitution states that the rule of law and supremacy of the Constitution are foundational values of our society. It vests the judicial authority of the state in the courts and requires other organs of state to assist and protect the courts. It gives everyone the right to have legal disputes resolved in the courts or other independent and impartial tribunals. Failure to enforce court orders effectively has the potential to undermine confidence in recourse to law as an instrument to resolve civil disputes and may thus impact negatively on the rule of law.”

51. The Plaintiff further submitted that the argument by the 1st Defendant that the bill of lading does not confirm the Plaintiff’s name is fallacious. That despite existence of a second bill of landing, the same does not change the contract. The second bill of lading is in the name of Inchcape Shipping Services (K) Ltd. They allegedly did not claim any rights. The Plaintiff filed suit against them and withdrew the same.

52. It is their case that the detention was illegal. They pray for special damages. They state that the goods were held for 10 years resulting in massive losses. In this they rely on the decision of Douglas Kalava Ombeva =vs= David Ngama (2013) KLR.Loss of earning is a special claim.

53. They thus pray for US $169,055. 38 on the 1st container and US $565,486. 94 for the second container.

54. On the Award of interest, the plaintiff relied on Timsales Ltd versus Harun Thuo Ndugu (2010) eKLR and Franco Esposito v Assia Animal Health Limited [2019] eKLR as doth:“In the case of the so-called contract interest to be awarded is normally set out in the agreement. The court in interpreting the contract will have to give effect to the clause on interest unless there ` are factors that are in conflict with the law or public policy on rate of interest being awarded by one party against another in the contract. The court in such circumstances has the discretion to interfere with the rate of interest so as to do justice to the parties.”

55. They submitted that a successful party cannot be deprived both of money and goods. On this reliance was placed on the case of Prem Lata v Peter Musa Mbiyu 1965 EA 592, where the court held as follows on the issue of interest: -“In both these cases, the successful party was deprived of the use of goods or money by reason of the wrongful act on the part of the defendant, and in such a case it is clearly right that the party who has been deprived of the use of goods or money to which he is entitled should be compensated for such deprivation by the award of interest.”

56. As regards to aggravated loss, the Plaintiff submitted for aggravated damages and relied on Rookes =vs= Bernard & Others (1964) AC 1129. They also rely on the formula set out in the case of Godfrey Julius Ndumba Mbogori & another =vs= Nairobi City county (2018) eKLR as doth:“Lord Devlin also gave expression to 3 considerations which must be borne in mind in any case in which an award of exemplary damages is being claimed. The first category is that the plaintiff himself must be the victim of the punishable behaviour; the second category is that the power to award exemplary damages must be used with restraint for it constitutes a weapon and can be used either in defence of liberty or against liberty and thirdly, the means of the defendant, irrelevant in the assessment of compensation, are material in the assessment of exemplary damages.”

57. On the counter claim, the Plaintiff relied on PIL Kenya Limited V Joseph Oppong [2009] eKLR where the court stated as doth: -“In the circumstances of this appeal and in terms of reasoning, I adopt as good law the principle in the case of Compania Navifra Maro Pa Sa V Bowaters Lloyd Pulp And Paper Mills [1955] OB 68, 98-9 where the court stated:“Whether the damages flow from the breach in accordance with the ordinary law of damages for breach of contract. Were they the natural and probable consequences of the breach? If not, they are too remote ....... The question is one of causation, if the master, by acting as he did, either caused the damage by acting unreasonably in the circumstances in which he was placed, or failed to mitigate the damage, the defendants would be relieved from the liability which would otherwise have fallen on them.”Although I have held that there was

58. They submitted that the goods had been released by KPA on 12/10/1999 and as such no notice cancel the release order. They stated That there were no doubt on who owned the goods. They state that a letter of 30/1999 by the 3rd defendant countermanded the release of the goods to anyone other than the third defendant. There was an order for release and the released occurred in 2012, for one container.

59. They stated that Justice Waki ordered release of the containers and the third defendant should be held liable for the non- relases. They relied on the case of Mistry Amar Singh =vs= Serwani Wofunira Kulubua, UCA No 74 of 1960 to support their case.

60. The Plaintiff, in the end submitted for the suit to be allowed and the Counter claim be dismissed with cost to the Plaintiff against the 1st and 3rd Defendants.

The 1st Defendant’s Submissions 61. The 1st Defendant stated that they have no role in the whole sage. They state that the goods came from South Africa but the 2nd Defendant purported to clear them as if they are from India by the 5th Defendants vessel.

62. It was submitted that the dispute is between the 2nd and 3rd Defendant. The first Defendant stopped the release on a legitimate claim by the 3rd Defendant as the agent for the carrier from South Africa, Durban.

63. It was the submission of the 1st Defendant that the goods that were sought were released as follows: -a.By 4/3/2002 where a Court order of 31/1/2002 was served, TRLU 330247 was lying at the port.b.TRLU 3238598 were released to customs 36. The Plaintiff was notified to pay charges, outstanding port charges and lodge documents of title for clearance. No step was taken till 25/5/2013 when the 2nd plaintiff collected the container.

Analysis 64. The Court has reviewed and considered the pleadings, testimony and evidence produced by parties together with the submissions and authorities in support and opposition to their respective cases. on the propriety of having 2 Advocates act for 2 different parties. I shall not deal with this issue as it is not in any pleadings.

65. There is no contradiction when defendants appoint the same advocates to act for them. It shall never come out of the mouth of the adversary which advocate should act against them. It truly a moot point. In Daniel Kaminja & 3 others (Suing as Westland Environmental Caretaker Group) v County Government of Nairobi [2019] eKLR, Justice John M. Mativo, stated as doth regarding mootness doctrine:“26. A case or issue is considered moot and academic when it ceases to present a justiciable controversy by virtue of supervening events, so that an adjudication of the case or a declaration on the issue would be of no practical value or use. In such instance, there is no actual substantial relief which a petitioner or applicant would be entitled to, and which would be negated by the dismissal of the case. Courts generally decline jurisdiction over such cases or dismiss them on grounds of mootness, save when, among others, a compelling constitutional issue raised requires the formulation of controlling principles to guide the bench, the bar and the public; or when the case is capable of repetition yet evading judicial review.

27. The legal doctrine known as 'mootness' is well developed in constitutional law jurisprudence. Accordingly, a case is a moot one if it.“...seeks to get a judgment on a pretended controversy, when in reality there is none, or a decision in advance about a right before it has actually been asserted and contested, or a judgment upon some matter which, when rendered, for any reason, cannot have any practical effect upon a then existing controversy.”

28. Furthermore, a case will be moot-[19]“…if the parties are not adverse, if the controversy is hypothetical, or if the judgment of the court for some other reason cannot operate to grant any actual relief, and the court is without power to grant a decision.”

66. It is a controversy without a controversy. It is otiose to address the same as it will simply involve the court in chasing wind into nothingness and a bottomless bit. It is love for adventure, tragedy and conjecture in hyperbolic surmise and vanity at it nadir.

67. It is my hope that the controversy on representation stays there. To make matters worse the presentation has not one of the pleaded issues. This should have been raised in pleadings., in particular the reply to defence. Courts only deal with issues in pleadings. This controversy was not surrendered to court to deal with. The issue of representation cannot be raised at submission level. In the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR, Justice A C Mrima stated as doth; -“11. It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings: -“…..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded………In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.”

68. In the case of Malawi Railways Ltd vs Nyasulu [1998] MWSC 3, Malawi Supreme Court of Appeal stated as doth when the learned judges cited with approval an article by Sir Jack Jacob entitled “The Present Importance of Pleadings” published in [1960] Current Legal Problems at p 174 whereof the learned author posited that: -“As the parties are adversaries, it is left to each one of them to formulate his case in his own way subject to the basic rules of pleadings …….for the sake of certainty and finality; each party is bound by his own pleadings and cannot be allowed to raise a different fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation. Moreover in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice….”

69. In the adversarial system of litigation therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called “Any Other Business” in the sense that points other than those specific may be raised without notice.”

70. To buttress the point in a more poignant manner, the Supreme Court of Kenya in its ruling on inter alia scrutiny in the case of Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR found and held as doth in respect to the essence of pleadings in an election petition: -“In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings…...’”

71. The twin issues for determination in this case are as follows:a.Whether 1st and 3rd Defendants breached the contract for the carriage and delivery of goods as to entitle the Plaintiffs to the damages pleaded in the Plaint.b.whether this Court should issue a mandatory injunction to compel the 1st and 3rd Defendants to release containers TRLU 3302547 and TRLU 323898 and the cargo therein to the Plaintiffs.

72. On the first issue, in assessing breach of contracts relating to a Bill of Lading, the Court of Appeal, Bosire, JA. in PIL Kenya Limited V Joseph Oppong [2009] eKLR stated as follows: -“There is no dispute that the appellant declined to release the subject container to the respondent. The respondent was the consignee according to the shipper. The appellant admitted it received instructions regarding the change in the consignee and status of the cargo. One of the main issues at the trial and in this appeal is whether there was a contract between the appellant and the respondent which obligated the appellant to release the cargo to the respondent. In my view there was no contract between the appellant and the respondent concerning the container. There was however a contract of bailment between the shipper and the ship owners to which the bill of lading is evidence. Strond’s Judicial Dictionary, 4th Edition has a quotation from the case of Mason v Lickbarrow 1 BI.H. 359, in which Loughborough C.J, said:“A bill of lading is the written evidence of a contract for the carriage and delivery of goods, sent by sea for certain freight. The contract, in legal language, is a contract of bailment…… in the usual form of the contract, the undertaking is to deliver to the order, or assigns, of the shipper……. The indorsement of the bill of lading is simply a direction of the delivery of the goods.”While I hold that there was no privity of contract between the appellant and the respondent, strictly so peaking, it cannot be gainsaid that the appellant had a legal duty on the basis of the amended bill of lading to deliver the container to the respondent at the earliest possible time. The appellant declined to deliver the container as per the amended bill of lading and instead demanded an order of the court arguing that there were several claimants. The appellant was agent of the ship owner and it was obliged to do what the ship owner had covenanted to do, namely, deliver the cargo to the consignee.

73. In my view it was not open to the appellant to ask the claimants to obtain a court order to direct it as to whom it was to make delivery. The bill of lading was clear as to who was to take delivery. If at all it was in doubt then it was its duty to take out interpleader proceedings for the court to determine the rightful consignee. The evidence tendered was clear that the original consignee was Alice. The bill of lading was then amended to show that the consignee was the respondent. There was no basis for doubt. So regarding the status of the appellant, it was a bailee with specific instructions.

74. This case turns on facts that were placed before the court. An order for release neither determines the rights between the parties nor determines ownership. The order is issued as a mandatory order, where there are special circumstances for issuance of such a mandatory order. in case the court was wrong, then, the defendants or a true owner will be entitled to damages. That is why there is undertaking as to damages.

75. Joseph Kaloki t/a Royal Family Assembly v Nancy Atieno Ouma [2020] eKLR, the court of Appeal, was of the considered view that;-“As this Court stated in Kenya Breweries Limited & another vs. Washington O. Okeyo [2002] eKLR a mandatory injunction can be granted on an interlocutory applications as well as at the hearing but should not normally be granted in the absence of special circumstances but that if a case is clear and which the court thinks it ought to be decided at once, a mandatory injunction will be granted at an interlocutory application.”

76. In the case of referred above, Kenya Breweries Ltd & Another vs Washington O. Okeya [2002] eKLR, the Court of Appeal stated as doth: -“A mandatory injunction ought not to be granted on an interlocutory application in the absence or special circumstances, and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be easily remedied or where the defendant had attempted to steal a march on the plaintiff. Moreover, before granting a mandatory interlocutory injunction, the court had to feel a higher degree of assurance that at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction.

77. The Court of Appeal in the case of stated in Shariff Abdi Hassan v Nadhif Jama Adan [2006] eKLR restated the position on mandatory injunction as follows: -“The courts have been reluctant to grant mandatory injunction at the interlocutory stage. However, where it is prima facie established as per the standards spelt out in law as stated above that the party against whom the mandatory injunction is sought is on the wrong, the courts have taken action to ensure that justice is meted out without the need to wait for full hearing of the entire case.”

78. In the case of Kenya Power & Lighting Co. Ltd v Samwel Mandere Ogeto [2017] eKLR, the high court sitting at Kisii, stated as doth:“20. A mandatory injunction is different from a prohibitory injunction in the sense that while an in prohibitory injunction the applicant must, as was stated in the celebrated case of Giella vs Cassman Brown & Co. Ltd (1973) EA 358, establish the existence of a prima facie case with high chances of success, and that he will suffer irreparable loss/damage which cannot be adequately compensated by an award of damages if the injunction is not granted, and further that the balance of convenience tilts in his favor, an applicant in a mandatory injunction must, in addition, establish the existence of special circumstances. Furthermore, an applicant for mandatory injunction must prove his case on a standard higher than the standard in prohibitory injunctions.”

79. In the case of Nation Media Group & 2 Others vs John HarunMwau [2014] eKLR, the court of appeal said:“It is trite law that for an interlocutory mandatory injunction to issue, an applicant must demonstrate existence of special circumstances… A different standard higher than that in prohibitory injunction is required before an interlocutory mandatory injunction is granted. Besides existence of exceptional and special circumstances must be demonstrate as we have stated a temporary injunction can only be granted in exceptional and in the clearest of cases.”

80. Exparte and interlocutory orders remain that interlocutory. The determination of rights and who is entitled to damages remain the duty of the parties during full hearing. it will be tragedy of cataclysmic proportions for parties to assume that by getting orders pending the hearing of the suit entitles them to the title to the goods. It will be stealing a march on the other party contrary to the doctrine of audi alterum paterm.

81. The burden of proof is always on a party who wishes the court to belief existence of a fact. 12. In Palace Investment Ltd vs. Geoffrey Kariuki Mwenda & Another (2015) eKLR, the judges of Appeal held that:“Denning J. in Miller Vs Minister of Pensions (1947) 2 ALL ER 372 discussing the burden of proof had this to say; -“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say; we think it more probable than not; the burden is discharged, but if the probability are equal it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties…are equally (un)convincing, the party bearing the burden of proof will loose, because the requisite standard will not have been attained.”

82. What amount’s to proof has been settled. In William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526 The question as to what amounts to proof on a balance of probabilities was discussed by Kimaru, J as follows: -“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”

83. Where matters are determined is the evidence tendered. The case is as set out by the parties. It is not determined no the basis of interlocutory applications. The case herein was on contract. Therefore, I will deconstruct the parties on the two distinct contracts and remedies for each party. Then I will conceptualize, contextualize and problematize the imbroglio that, is the dispute herein in order to arrive at a just decision.

84. While at it, it is crucial to understand that a party cannot claim over a contract that he is not party to. Secondly, if there is such breach, there must be clear and unequivocal proof of breach of contract. In Mark Otanga Otiende v Dennis Oduor Aduol [2021] eKLR, Hon Lady Justice R.E. Aburili, stated as doth:“60. In its classical adaptation, the doctrine of privity of contract hypothesizes that a contract cannot confer rights or impose obligations on any person other than the parties to the contract. Accordingly, a contract cannot be enforced either by or against a third party, except in certain cases only. In Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847, Lord Haldane, LC rendered the principle thus:“My Lords, in the law of England certain principles are fundamental. One is that only a person who is a party to a contract can sue on it.”

61. In the Agricultural Finance Corporation v Lengetia Ltd (supra), quoting with approval from Halsbury’s Laws of England, 3rd Edition, Volume 8, paragraph 110, Hancox, JA, reiterated that:“As a general rule a contract affects only the parties to it, it cannot be enforced by or against a person who is not a party, even if the contract is made for his benefit and purports to give him the right to sue or to make him liable upon it. The fact that a person who is a stranger to the consideration of a contract stands in such near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration does not entitle him to sue upon the contract.”

85. Though there may be exceptions to the doctrine of privity of contract. In Kenya Women Finance Trust v Bernard Oyugi Jaoko & 2 others [2018] eKLR, the court, A. C. MRIMA, stated as follows on the aspect of the sanctitiy of the doctrine of privity of contract:-“11. The Court of Appeal had an opportunity to and deliberated on the doctrine of privity at length in Savings & Loan (K) Limited vs. Kanyenje Karangaita Gakombe & Another (2015) eKLR. The Court rendered itself as under: -“In its classical rendering, the doctrine of privity of contract postulates that a contract cannot confer rights or impose obligations on any person other than the parties to the contract. Accordingly, a contract cannot be enforced either by or against a third party. In Dunlop Pneumatic Tyre Co Ltd V Selfridge & Co Ltd [1915] AC 847, Lord Haldane, LC rendered the principles thus:“My Lords, in the law of England certain principles are fundamental. One is that only a person who is a party to a contract can sue on it.”In this jurisdiction that proposition has been affirmed in a line of decisions of this Court, among them Agricultural Finance Corporation V Lendetia Ltd (Supra), Kenya National Capitalcorporation Ltd V Albert Mario Cordeiro & Another (Supra) And William Muthee Muthami V Bank Of Baroda, (Supra).Thus in Agricultural Finance Corporation V Lendetia Ltd (supra), quoting with approval from Halsbury’s Laws of England, 3rd Edition, Volume 8, paragraph 110, Hancox, JA, as he then was reiterated:“As a general rule a contract affects only the parties to it, it cannot be enforced by or against a person who is not a party, even if the contract is made for his benefit and purports to give him the right to sue or to make him liable upon it. The fact that a person who is a stranger to the consideration of a contract stands in such near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration does not entitle him to sue upon the contract.”Over time, some exceptions to the doctrine of privity of contract have been recognized and accepted. Among these exceptions is where a contract between two parties is accompanied by a collateral contract between one of them and a third party relating to the same subject matter. Thus, in Shanklin Pier V Detel Products Ltd (1951) 2 KB 854, for example, the plaintiff owned a pier, which it wished to be repainted. After the defendant represented to the plaintiff that some particular paint was fit for purpose, the plaintiff directed its contract to use that paint. The contractor purchased the paint from the defendant, which proved unfit for purpose. Upon a suit by the plaintiff against the defendant, the court found for the plaintiff notwithstanding the fact that there was no privity of contract between the plaintiff and the defendant, as far as the contract for the sale of the paint was concerned.While the proposition that a contract cannot impose liabilities on a non-party has been widely embraced and accepted as rational and well founded, the proposition that a contract cannot confer a benefit other than to a party to it has not been readily accepted and has in fact been the subject of much criticism. In Darlington Bourough Council V Witshire Northen Ltd [1995] 1 WLR 68, Lord Steyn eloquently demonstrated the flaw in the proposition in the following terms.“The case for recognizing a contract for the benefit of a third party is simple and straightforward. The autonomy of the will of the parties should be respected. The law of contract should give effect to the reasonable expectations of contracting parties. Principle certainly requires that a burden should not be imposed on a third party without his consent. But there is no doctrinal, logical or policy reason why the law should deny effectiveness to a contract for the benefit of a third party where that is the expressed intention of the parties. Moreover, often the parties, and particularly third parties, organize their affairs on the faith of the contract. They rely on the contract. It is therefore unjust to deny effectiveness to such a contract.”Some jurisdictions have, accordingly and in a bid to introduce reforms and ameliorate the harshness of the rule, resorted to legislative intervention. The best examples are the United Kingdom and Singapore where the Contracts (Rights of Third Parties) Act, 1999 and the Contract (Rights of Third Parties Act, 2001 have respectively been enacted.’

86. The case consists two distinct international contract of goods by sea. The first contract involves, Consolidated Marine Service Pvt Limited, the shipper from India who had a duty to send the goods to the port of Mombasa and no other. That contract involved the 2nd defendant, Inchcape Shipping Services as the local agent.

87. It is important to note that the local agents for ships are Kenyan companies operating on behalf of specific shipping lines.

88. The Second contract involved Mediterranean Shipping Company (Pty) Limited and Kenya Limited Ocean Freight (EA) Limited. In this contract the consignee was the local agent in the first contract that is, Inchcape Shipping Service. It is important to distinguish the roles of Inchcape Shipping Service in the two contracts. In the first contract, they were the local agents of the shipping line. In the second they were consignees.

89. In the normal course of business, the local agents Consolidated Marine Service Pvt Limited, that is Inchcape Shipping Service was to clear the goods from their principals. After the principals failed to deliver, in other words by misdelivering to Durban, they caused the goods to be sent to Mombasa. Indeed, the plaintiffs paid Ksh 125,250, though the mistake was the 5th defendant’s.

90. The Plaintiffs went ahead to clear and get a release order from Consolidated Marine Service Pvt Limited and Inchcape Shipping Service, for goods not in their possession. The goods were in the 3rd and 4th Defendant’s custody who were entitled to be paid for delivering the cargo from South African port of Durban. Though Inchcape Shipping Service were local agents, they were mere consignees for purposes of the Durban to Mombasa voyage. They should have proceeded to the 3rd defendant to clear the goods, pay charges for transshipment from Durban and proceed to have the same delivered to their side in order for the Plaintiff to clear them.

91. The 1st defendant had a right to organize smooth operation of the port. Where the plaintiff and 2nd defendants cleared goods they don’t have, the 3rd defendant had a right to demand payment for the voyage from south Africa. What was cleared were goods form MV Manya from India. Mv Manya at the time of clearing the goods did not have them. The clearance or port release could not release the goods.

92. The goods were with Mediterranean shipping Pvt Ltd. Only the said shipping line and the 3rd Defendant could clear goods for purposes of leaving the Mediterranean shipping.

93. The person with a duty of care to both sides of the contract were Inchcape Shipping Service, who in the second contract were consignees and therefore with the ultimate right to clear the goods take ownership and then supply the first bill of lading for collection from them. Unfortunately, it looks like they eschewed their responsibilities and burden the Plaintiff with the clearance. They misled the Plaintiff into releasing them from their suit.

94. The 3rd Defendant had no contract with them. Indeed, the plaintiff insisted that their shipment were from India. I agree with them. It is the shipping line from India and their agents who owed them a duty of care to ensure that goods that were sent to Mombasa reached safely. The Durban -Mombasa voyage was an unnecessary trip caused by the 2nd and 5th Respondents.

95. Knowing they had nothing to do with the Durban voyage, the Plaintiff obtained an order that the cargo be released unconditionally. Release of cargo unconditionally does not mean that customs and freight charges are not paid. It means that the release should not be tied to original documentations.

96. The order, though issued in 2002 was executed in 2012. There is no single application on the record on any contempt. I do not believe for a moment that the defendants refused to release the cargo. There is no evidence of service of the order. in any case, the parties to release were the 2nd and 4th Defendants. There was no evidence that the 3rd defendant had the said goods. It is therefore clear that the persons liable are not party to this suit.

97. The other aspect is sale by KRA. none of the defendants are agents of the Kenya revenue authority. If they sold the goods, then, the plaintiff is fully to blame for failing to collect the goods. Any mix-up is squarely elsewhere but not in the hands of the plaintiff, 2nd Defendant and the 5th Defendant with whom the plaintiffs apparently had a contract. The plaintiff cannot enforce any action in respect to the parties to the south African contract as they are not party to that contract.

98. Had the second defendant not been remove, it could have been another ball game. For now, it is irrelevant weather the plaintiffs were the owners. They are the persons who claimed and were named as the notifying parties and owners recipients.

99. The first defendant had no role in release or non-release of the goods. The 1st defendant countermanded the release of the goods on basis of an erroneous release order. though not amount fully to fraud, it is not regular to clear and release goods in the custody of a different shipping line.

100. The third defendant carried its statutory duties. In the circumstances, they did not commit anything that can make them liable. The 3rd defendant was entitled to claim payment on behalf of the shipping line, the 4th Defendant who were its principals

101. As was held in the case of Societe Miniere Delest v Afrika Invest Limited & 2 others [2015] eKLR: -“The contract of Sale (the first contract) is clearly between the plaintiff (Societe Miniere Delest), and the first defendant (Africa Invest Limited) to the exclusion of all other parties. That contract was signed on behalf of the seller by one Ali Rashid Birindwa while one Emmanuel Mutaharugamba signed on behalf of Africa Invest limited (the buyer). The shipping contract on the other hand is between the third defendant and Marua Group Limited of Kampala Uganda, and was signed by the same Ali Rashid Birindwa and another person. That contract is in the form of the Bill of Lading. In addition to its other legal attributes already referred to above, according to “Lexis Navigator Dictionary” –“A Bill of Lading is a receipt signed by the person or his agent who contracts to carry certain specific goods, and setting out the terms of the contract of carriage under which the goods have been delivered to and received by the ship.The signed Bill of Lading is handed over to the shipper, who may either hold on to it or transfer it to a third person. During the voyage and transit, the Bill of Lading under the law merchant is considered the symbol of the goods described in it, and the endorsement and delivery of the Bill of Lading operates as a symbolic delivery of the goods. This person may be named in the Bill of Lading as the person to whom the delivery of the goods is to be made on arrival at the destination, in which case he is known as the consignee; if he is not named in the Bill of Lading, he is usually known as the holder or endorsee of the Bill of Lading.The holder of the Bill of Lading is entitled as against the shipper to have the goods delivered to him to the exclusion of other persons. It is thus in the same position as if the goods were delivered to him or in his physical possession, subject to the qualification that he takes the risk of non-delivery of the goods by the ship owner, and that, in order to obtain actual delivery of the goods from the ship owner, he may be obliged to discharge the ship owner’s lien for freight. A Bill of Lading issued by the ship owner’s agent in the absence of any contract of carriage is a nullity.”Halsbury’s Laws of England Volume 7 paragraph 314, says inter alia:-“….although a bill of lading has often been described as a negotiable instrument, it is not in the strict sense of the words. The principal points of resemblance of a bill of lading to a negotiable instrument are that:-"the right to demand delivery of the goods from the carrier is transferred by the delivery to the lawful holder of the Bill of Lading, no distinct contract of assignment and no notice to the carrier being necessary for the transfer to take effect;in some cases the transferee may acquire, by virtue of the transfer, rights over the goods which are greater than those of the transferor;the transferee of the bill may in certain cases sue and be sued on the contract contained in the Bill of Lading;the transferee, even if his title is defective may give a good discharge to the carrier who delivers the goods to him, andthe consideration provide by the transferee may be a past consideration.

102. Therefore, the only person who had title to the goods from south Durban to Nairobi was Inchcape Shipping Service, who were consignees. For purpose of this voyage the plaintiff were notionally busy bodies. By failing to clear the goods, the 2nd defendants abdicated their duties to all parties resulting in this imbroglio. However, they are no longer parties and as such the court cannot hold them liable.

103. The order given to the plaintiffs were succinct. However, by the Kenya revenue Authority for not being collected and duty paid. The Kenya revenue authority are not parties herein.

104. The court gave the Plaintiff an olive branch way back in 2002 but they did nothing to claim their goods. The parties currently in the case are strangers. The Kenya Ports authority does not have power to release suo motto. It is clear that this goods are manifested only to Inchcape Shipping Service. Only these could clear the goods. There is no suit showing any difficulties they had in clearing the cargo.

105. Lastly, the strangest thing is that despite several amendments, there are no particulars of breach of contract. This could have guided the parties that the 1st and 3rd defendants had no privity of contract and estate to the plaintiff. A question can arise, why them did they counterman, goods that the plaintiff has an interest.

106. In the case of the second contract of carriage of goods, Inchcape Shipping Service had no authority to clear as an agent. They were consignees. Goods were not to be given to the consignees before payment. It appears that the second defendant, Inchcape Shipping Service, confused their duo role. In terms of the South African constitution, Inchcape Shipping Service was the owner of the goods. They should have gone to the 3rd defendant to clear the goods from Durban. Upon clearance from the 4th defendant, then and only then can they resume their role as agents of the 5th Defendant.

107. In a nutshell, there is no case against the 1st and 3rd defendants. I shall therefore proceed and dismiss the same with costs to the 1st and 3rd defendants.

108. Even where the suit is dismissed, the court is under duty to assess damages. In the case of Andrew Mwori Kasaya v Kenya Bus Service [2016] eKLR, the court repeated the oft held principle regarding assessment of damages even if he court being under duty to assess damages, even if the case is dismissed. This was succinctly put forth as thus: -“Turning to issue No. 2, the rationale or otherwise of assessing damages even where they are withheld by the trial court was succinctly set out by the court in Mordekai Mwangi Nandwa versus Ms. Bhogals Garage Ltd Civil Appeal No 124 of 1993 (UR). The court made the following observations on this issue:“The judge was clearly under a legal duty to assess the damage she would have awarded to the appellant if he (judge) had found for him. That was in compliance with this court’s then repeated directions to trial Judges to proceed in that manner so as to obviate the need for sending back a case to them to assess damages in the event of this court allowing an appeal. The practice of assessing damages by a trial judge irrespective of whatever his findings are does not and cannot mean that such a judge is writing an alternative judgment”

109. The suit have been dismissed on the side of liability. The court has a duty to assess damages even where the suit is dismissed. However, the claim herein is a claim for breach of contract there can be no general damages for damages. In the case of Peter Umbuku Muyaka v Henry Sitati Mmbasu [2018] eKLR, Justice J. NJAGI, stated as follows: -“27. As a general rule general damages are not recoverable in cases of alleged breach of contract-see Court of Appeal decision in Kenya Tourism Development Corporation Vs Sundowner Lodge Ltd 2018 eKLR. The reason for such was explained by the court in the case of Consolata Anyango Ouma vs. South Nyanza Sugar Co. Ltd (2015) eKLR as follows:“The next question is whether the appellant was entitled to damages as a result of the breach. As a general principle, the purpose of damages for breach of contract is, subject to mitigation of loss, the claimant is to be put as far as possible in the same position he would have been if the breach complained of had not occurred. This is principle is encapsulated in the Latin phrase restitution in integrum (see Kenya Industrial Estates Ltd v Lee Enterprises Ltd NRB CA Civil Appeal No. 54 of 2004 [2009] eKLR, Kenya Breweries Ltd v Natex Distributors Ltd Milimani HCCC No. 704 of 2000 [2004] eKLR). The measure of damages is in accordance with the rule established in the case of Hadley v Baxendale (1854) 9. Exch. 341 that the measure of damages is such as may be fairly and reasonably be considered arising naturally from the breach itself or such as may be reasonably contemplated by the parties at the time the contract was made and a probable result of such breach (see Standard Chartered Bank Limited v Intercom Services Ltd & Others NRB CA Civil Appeal No. 37 of 2003 [2004] eKLR). Such damages are not damages at large or general damages but are in the nature of special damages and they must be pleaded and proved (see Coast Bus Service Ltd v Sisco Murunga Ndanyi & 2 others, NRB CA Civil Appeal No. 192 of 92 (UR) and Charles C. Sande v Kenya Co-operative Creameries Ltd, NRB CA Civil Appeal No. 154 of 1992 (UR))”.

110. On the part of exemplary and aggravated damages may issue particularly in peculiar circumstances that general and special damage only may not warrant a just compensation on the part of a party who has suffered a breach of duty and contract. They are rarely stand-alone reliefs. They flow from the need for additional recourse to soothe the victim while punishing the offender. In D K Njagi Marete v Teachers Service Commission [2020] eKLR, the court of Appeal (Nambuye, Musinga & J. Mohammed, JJ.A stated as doth: -“28. This leads us to the appellant’s claim for damages under various heads of damage as claimed in his statement of claim as well as the memorandum of appeal. To justify this award, the appellant urged us to consider the case of Obonyo and Another v Municipal Council of Kisumu (supra) at 94 where the predecessor of this Court, referring to the English Decision of Rookes v Barnard and Others (1964) AC 1129 stated that:“it will be convenient to begin summarizing very briefly the effect of Rookes v Barnard. In the first place, it was held that exemplary damages for tort may only be awarded in two classes, of case (apart from any case where it is authorized by statute, these are first, where there is oppressive, arbitrary or unconstitutional action by the servants of the government (emphasis in original) and secondly where the defendant?s conduct was calculated to procure him some benefit, not necessarily financial, at the expense of the plaintiff. As regards the actual award, the plaintiff must have suffered as a result of the punishable behavior, the punishment imposed must not exceed what would likely have been imposed in criminal proceedings if the conduct were criminal; and the means of the parties and everything which aggravates or mitigates the defendant’s conduct is to be taken into account.”

29. Based on the foregoing passage, the appellant submitted that the respondent acted arbitrarily and oppressively against him, and urged us to award damages as the respondent, being a public institution, we ought to be guided by the definition of the term ‘government’ in Obonyo and Another v Municipal Council of Kisumu (supra) where Law, JA agreeing on the position of an award of exemplary damages in actions for tort stated that:“…exemplary damages are appropriate in two classes of case: oppressive, arbitrary and unconstitutional action by the servants of government, and conduct by a defendant calculated to make a profit for himself which may well exceed the compensation payable to the plaintiff, and these classes should not be extended. This raises the question whether the expression „government? should be read as meaning the central government only, and whether it should be interpreted as including a local government ...”

111. In the case of Godfrey Julius Ndumba Mbogori & another V. Nairobi City County [2018] eKLR the Court stated as follows:“Exemplary damages are essentially different from ordinary damages. The object of damages in the usual sense of the term is to compensate. The object of exemplary damages is to punish and deter. We are guided by the case of Rookes v Barnard [1964] AC 1129 where Lord Devlin set out the categories of cases in which exemplary damages may be awarded which are: i) in cases of oppressive, arbitrary or unconstitutional action by the servants of the government, ii) cases in which the defendant’s conduct has been calculated to make a profit for himself which may well exceed the compensation payable to the Plaintiff and iii) where exemplary damages are expressly authorized by statute”.

112. In the circumstances of this suit, I am not satisfied that the Defendant’s actions were so arbitrary and oppressive as outlined in Obonyo and Another v Municipal Council of Kisumu (supra) so as to justify an award of exemplary damages.

113. The Plaintiffs are thus not entitled to exemplary and aggravated damages. Damages that would restore the Plaintiff to the position if the breach had not occurred would suffice. As was stated in in Consolata Anyango Ouma v South Nyanza Sugar Company Limited MGR HCCA No. 53 of 2015 [2015]eKLR as follows:“The next question is whether the appellant was entitled to damages as a result of the breach. As a general principle, the purpose of damages for breach of contract is, subject to mitigation of loss, the claimant is to be put as far as possible in the same position he would have been if the breach complained of had not occurred. This is principle is encapsulated in the Latin phrase restitution in integrum (see Kenya Industrial Estates Ltd v Lee Enterprises Ltd NRB CA Civil Appeal No. 54 of 2004 [2009] eKLR, Kenya Breweries Ltd v Natex Distributors Ltd Milimani HCCC No. 704 of 2000 [2004] eKLR). The measure of damages is in accordance with the rule established in the case of Hadley v Baxendale (1854) 9. Exch. 341 that the measure of damages is such as may be fairly and reasonably be considered arising naturally from the breach itself or such as may be reasonably contemplated by the parties at the time the contract was made and a probable result of such breach (see Standard Chartered Bank Limited v Intercom Services Ltd & Others NRB CA Civil Appeal No. 37 of 2003 [2004] eKLR). Such damages are not damages at large or general damages but are in the nature of special damages and they must be pleaded and proved (see Coast Bus Service Ltd v Sisco Murunga Ndanyi & 2 others, NRB CA Civil Appeal No. 192 of 92 (UR) and Charles C. Sande v Kenya Co-operative Creameries Ltd, NRB CA Civil Appeal No. 154 of 1992 (UR).”

114. On the issue for special damages, the Plaintiff pleaded for special damages of US $ 2,179,670. 71 in monetary compensation relating to the two containers. This was later amended to US $ 734,542. 32

115. Courts have stated times without number that special damages must not only be pleaded but also strictly proved. In the case of Kenya Women Microfinance Ltd v Martha Wangari Kamau [2021] eKLR the Court stated as follows:“A claim for special damages is in the nature of restitution and, where proved, it is meant to restore the claimant to the position he would have been save for the action complained of. The documents the respondent placed before the trial court did not show what, if anything, the businesses used to earn or bring and, as a result of the appellant’s actions, she lost that income which the trial court was to restore her to.The respondent’s evidence was in general terms without any specificity on the losses. For instance, she did not explain why the amount in her particulars of special damages was more than what she prayed for in the reliefs. She did not demonstrate through evidence that she was unable to access a loan from Faulu Bank. Similarly, she did not tender documentary evidence to show how much the curio and transport businesses were generating, if any, or that that her shares were frozen.What the respondent did, was to put forward documents without demonstrating to the court what they stood to prove and how. This was a clear case of the respondent throwing documents at the court on the loss she thought she had suffered and expected the court award her damages. This did not discharge the legal burden of proof placed on her to strictly prove her special damages claim. The many documents she placed before court not even referred to in evidence to assist the court on how they proved the particulars of special damages.

116. Addressing the same, the Court of Appeal stated in Capital Fish Limited v Kenya Power and Lighting Company Limited (2016) eKLR stated as follows:“The Appellant apart from listing the alleged loss and damage, it did not lead any evidence at all in support of the alleged loss and damage. As it were, the appellant merely threw figures at the trial court without any credible evidence in support thereof and expected the court to award them. Indeed, there was not credible documentary evidence in support of the alleged special damages.

117. Moreover, in David Bagine v Martin Bundi [1997] eKLR, the Court of Appeal cited the judgment by Lord Goddard CJ. in Bonham Carter v Hyde Park Hotel Limited (1948) 64 TLR 177), where he that:[The] Plaintiffs must understand that if they bring actions for damages it is for them to prove damage. It is not enough to note down the particulars and, so to speak, throw them at the head of the court saying ‘this is what I have lost’, I ask you to give me these damages; they have to prove it.in Attorney General of Jamaica v Clerke (Tanya) (nee Tyrell), Cooke, J.A. delivering the judgment of the court stated that special damages must be strictly proved; the court should be very wary to relax this principle; that what amounts to strict proof is to be determined by the court in the particular circumstance of the case and the court may consider the concept of reasonableness.

118. I have said enough to show that it is settled law that special damages must be pleaded and strictly proved. I note that the Plaintiff well particularized the special damages in paragraph 12G of the Amended Plaint.

119. However, no evidence was tendered in Court to support the special damages as pleaded. The quarterly profit margin of 7. 5% pleaded for container TRLU 3302547 and TRLU 323989 as well as the CIF Value of US $18,503. 42 for each container. The loss of profits and interest on profits were also not supported were not supported.

120. Further, the containers were lost completely. This is a total loss. The value of the containers is what needed to be provided. Though this was earlier pleaded, it was removed in lieu for other claims. In the circumstances, the claim as pleaded was untenable. Even if the plaintiff had proved liability, he did not prove damages as pleaded.

121. I have seen the plaintiff seeking the value of the goods. This is not pleaded. As hitherto stated a party is bound by their pleadings. There is no basis for to award special damages.

122. The final issue is whether I should issue a mandatory Injunction to compel the 1st and 3rd Defendants to release the container TRLU 323898. It is the Defendant’s case that the container TRLU 32385998 was deposited to the customs warehouse and subsequently sold by public auction. However, it is not in dispute that Container TRLU 3302547 was released back to the Plaintiffs.

123. I note that this Court ordered on 31st January 2002 ordered that the two containers to be released to the Plaintiffs. There is no enforcement seen in that respect. Ne of the containers was sold by public auction The Defendants’ case is that was sold by public auction.

124. I have perused the Amended Plaint. The Plaintiff did not challenge the circumstances under which the container was sold. It would be expected that the Plaintiff pleads that the sale was unlawful and prayers for either refund of the equivalent price with interest or just a recovery of the container itself with loss of user. Parties are bound by their pleadings.

125. I am unable to grant an order for the recovery of a container that was undisputedly sold in the year 2000, about 23 years ago. Court orders cannot issue in vain. Secondly, the parties who ought to release are not parties. The first defendant, can only allow release from the shipping lines. They do not have containers of their own.

126. Further Mv Jahaz never docked in Mombasa. If the 2nd defendant was to clear the same, they need to clear them CIF, Durban. It is the 5th Defendant who placed the goods on MV Jahaz enroute Mombasa knowing very well that Mombasa was not one of its ports of call. The 2nd defendant had no authority to clear goods aboard Mv Angela. This was a shipping visceral for Mediterranean shipping. Only the third defendant could clear the same.

127. The claimant and the 2nd defendant could not claim to have lawfully issued a delivery order to the Plaintiffs, when the goods were aboard Mv Angela. There was an allegation of a Slot charter agreement. No evidence was produced of this. The Plaintiff withdrew the case when the 2nd defendant has a duty to proof a Slot charter agreement. Without such, the allegations in their defence remains bare. I find and hold that there was no Slot charter agreement.

128. The Plaintiff was under duty to prove a Slot charter agreement and show the culpability of the 3rd defendant. The third defendant’s duty ws fairly simple. To lodge the manifest and await clearance. Indeed the 3rd defendant testified that they lodged a manifest wand were waiting for the 2nd defendant to present the original documentation. The original bill of lading no. MSCU D 1870288 has not been lodged to date.

129. Without lodging the original bill of lading, the plaintiffs cannot proof ownership of the goods. It is not enough that an order for released was issued by this court. The order does not place any evidentially burden on the defendants.

130. As at 20/7/2012, the 1st defendant had waived storage charges and requested for lodging of clearance documents. The plaintiff had accumulated 28,040 US $. The reason they gave was detention by KPA. This was not correct but nevertheless waiver was given. The true reason is the plaintiff’s failure to lodge a duly endorsed bill of lading.

131. This was because the 2nd defendant failed to clear with the 3rd defendant. All documents confirm that the MV Jahaz never docked or even manifested in Mombasa. The role of the 2nd defendant as a local agent was thus never activated. The 2nd defendant was a consignee only. He needed to clear with the 3rd defendant by lodging the bill of lading for Mombasa Nairobi Voyage. Indeed they even were paid by the plaintiff about 126,000/= to clear cargo. They did not do so. The 1st defendant had a right to countermand theft of cargo by the plaintiff from the port. By purporting to clear goods from MV Jahaz, which ship was not docked at the port, the 2nd defendant was stealing a match on the 3rd and 4th Defendant.

132. I have received sufficient evidence that one of the containers was released and the other sold by Kenya revenue Authority. There is nothing the 1st defendant did that is outside the law. I therefore dismiss the case against the 1st defendant as untenable in law with costs of US $22,695/=.

133. I have said enough to show that the suit herein is built on quick sand. The inescapable finding is that the suit is without merit and is dismissed with costs to the 1st and 3rd Defendants.

Counter claim 134. The counter claim was withdrawn. There is nothing to hear of it.

Determination 135. The upshot of the foregoing is that I make the following orders: -i.The Plaintiffs suit is dismissed with costs US $22,695/= to each of the 1st and 3rd Defendants.

ii.The same should be paid within 30 days from todays, failing which execution shall proceed.

iii.The file is closed.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 24TH DAY OF OCTOBER 2023. JUDGEMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGE