Kenya Ports Authority v Threeways Shipping Services (k) Limited
The bottom line
#Kenya's Court of Appeal confirmed that negligence claims against Kenya Ports Authority belong in the High Court, not arbitration.
What this practically means
#Executive summary
#Key legal issues
#Whether Section 62 of the Kenya Ports Authority Act ousts the jurisdiction of the High Court over a claim founded on negligence and mis-delivery of goods
It does not. Section 62(2)(a) and (b) contains a negligence exception, and Section 22 imposes liability for loss occasioned by mis-delivery caused by want of reasonable foresight and care. The claim, being founded on negligence, lies outside Section 62 and within the High Court's jurisdiction.
The court examined prior decisions holding that Section 62 ousts jurisdiction and distinguished them because they did not consider the negligence exception in Section 62(2)(a) and (b) nor the relationship between Sections 22 and 62. Section 22 imposes liability for mis-delivery caused by want of reasonable foresight and care, while Section 62 governs compensation for damage arising from the exercise of powers under Sections 12, 14, 15 and 16. A negligence claim falls within the exception, so the arbitration route does not apply.
Whether Section 62 should be interpreted as a carte blanche shielding the Authority from liability
No. Section 62 should be interpreted to enhance efficiency in port management and expeditious dispute resolution, not to deny access to the courts or escape liability from the common law duty of care.
The court reasoned that access to justice under Article 48 is a fundamental right that cannot be derogated from, and that ADR such as arbitration, while crucial for expeditious disposal of disputes, is inferior to the principle of access to justice. Section 62 was therefore not aimed at shielding the Authority from liability arising from negligence, and should be applied purposively rather than as an absolute ouster of judicial jurisdiction.
The appellate court's approach on a first appeal
A first appellate court has jurisdiction to review the evidence to determine whether the conclusion originally reached should stand.
Relying on the long-standing guidance in Peters v Sunday Post Ltd, the court confirmed that as a first appeal it may review the evidence and conclusions below. It applied that framework in analysing the High Court ruling on jurisdiction before affirming the judge's conclusion that the High Court had jurisdiction.
Legal principles established
#- Section 62 of the Kenya Ports Authority Act does not oust the High Court's jurisdiction over claims founded on negligence; the negligence exception in Section 62(2)(a) and (b), read with Section 22, leaves mis-delivery and want-of-care claims within the High Court's jurisdiction.
- A statutory ouster clause should not be interpreted so as to impede access to justice, and ADR mechanisms are subordinate to the constitutional right of access to justice.
- Memoranda of appeal should be crafted precisely, concisely and briefly; repetitive grounds that obscure the key issue are deprecated.
Court orders
#- 1.The appeal is dismissed with costs
- On appeal from
- High Court of Kenya at Mombasa
- HCCC No. 28 of 2010
- Jurisdiction invoked
- First appeal under the Court of Appeal's appellate jurisdiction over the High Court ruling of 16 February 2012 (Constitution of Kenya 2010, Article 164)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Ports Authority v Threeways Shipping Services (k) Limited", Case Analysis (2019). Civil Appeal No. 18 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/472/eng@2019-07-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.