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Court of AppealDismissedNot stated in the judgment as provided

Starryway Trading & Shipping Company Ltd v Et Timbers PTE Limited & another (Civil Appeal E121 of 2022) [2023] KECA 1323 (KLR)

Court of Appeal of Kenya
10 November 2023
5,877 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~24 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled a shipping company could not use joinder to an admiralty suit to stall proceedings and protect a lien pending foreign arbitration.

What this practically means

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Executive summary

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This is an appeal to the Court of Appeal at Mombasa against an interlocutory ruling of Njoki Mwangi, J delivered on March 18, 2022 in Admiralty Cause No E003 of 2021, an in rem claim by ET Timbers PTE Limited against the owners of MV Dolphin Star for about USD 2 million arising from an alleged breach of a voyage charter. The appellant, which claimed to be the disponent owner under a time charter and voyage charterer with the 1st respondent, sought to be joined as an interested party to the admiralty proceedings, to protect an alleged contractual lien over the cargo, and to stay the proceedings pending arbitration in London. The High Court dismissed the application, holding that the in rem claim and the appellant's in personam arbitration claim were not connected and that the appellant would not assist the court. The Court of Appeal, comprising Nyamweya, Lesiit and Odunga, JJA, in a single unanimous judgment, reaffirmed the practice that interlocutory appeals are decided only on a prima facie basis and applied the strict criteria for interfering with discretionary decisions: error of law or principle, irrelevant or ignored considerations, or a plainly wrong decision. Relying on Departed Asians Property Custodian Board v Jaffer Brothers and Barclays Bank v C B Patel, the court held that the appellant, against whom no claim was made in the suit, had to show a matured interest legally affected by the orders sought, and that it could not use joinder to in rem proceedings to secure collateral in personam relief or stagnate the proceedings. Part 61.8(7) of the English Civil Procedure Rules was held to be read together with Part 19.2(2). Finding no basis to fault the trial judge, the court dismissed the appeal and awarded costs of the appeal to the 1st respondent, to be borne by the appellant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial court was justified in declining to join the appellant to the in rem admiralty proceedings as an interested party
  2. 2.Whether the court proceedings ought to have been stayed pending the arbitration proceedings in London between the appellant and the 1st respondent
  3. 3.Whether the appellant could exercise a right of lien over the 1st respondent's cargo on board the vessel
  4. 4.Whether the court should interfere with the exercise of the trial court's discretion

Key legal issues

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01

Whether the trial judge's discretion in refusing joinder was properly exercised

Holding

The appeal fails because the appellant showed no error of law or principle, no irrelevant or ignored considerations, and the decision was not plainly wrong.

Reasoning

The court applied the Supreme Court decision in Apungu Arthur Kibira v IEBC and the stricter criteria for appeals against discretionary decisions drawn from Kacem v Bashir. Joinder is an exercise of discretion and a case management decision; the trial judge correctly identified and applied the three conditions in Dr Donna Molavi v Guy Hibbert and found the second and third conditions unmet. Nothing was placed before the appellate court to fault that exercise.

p. 9
02

Conditions for joinder of a party to in rem proceedings

Holding

A proposed joinder party with no claim against it in the suit must show its interest had accrued or matured and that the orders sought would legally affect it, or that joinder is desirable to avoid multiplicity of suits.

Reasoning

There was no claim by the 1st respondent against the appellant, nor by the 2nd respondent against the appellant. Citing Departed Asians Property Custodian Board v Jaffer Brothers and Barclays Bank D C O v C B Patel, the court held the appellant had to show a right to relief arising out of the same transaction and a common question of law or fact, or that its presence was necessary for effectual settlement. The appellant's claim against the 1st respondent was in personam and belonged in arbitration, not in the in rem suit.

p. 8
03

Joinder as a device to stay proceedings pending arbitration

Holding

Joinder cannot be used to stagnate proceedings where the joining party has no claim in the suit; the appellant's object was collateral.

Reasoning

The appellant sought joinder solely to stay the proceedings and protect a lien in aid of the London arbitration, which was in personam against the 1st respondent, while the suit was in rem against the vessel. The court held that such use of joinder achieves collateral purposes and that the effect of joinder would be the stultification of the proceedings rather than the furtherance of the overriding objective.

Legal principles established

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  • An appellate court will not interfere with a trial court's exercise of discretion unless an error of law or principle is shown, irrelevant considerations were taken into account, a relevant consideration was ignored, or the decision is plainly wrong.
  • In interlocutory appeals an appellate court may only express its views on a prima facie basis and must not conclude the merits so as to tie the hands of the trial judge.
  • A party cannot be joined to in rem admiralty proceedings under the guise of joinder in order to obtain relief that ought to be sought in separate in personam proceedings.
  • Part 61.8(7) of the Civil Procedure Rules of England must be read together with Part 19.2(2) of the same Rules, which guide the court's discretion on joinder.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The costs of the appeal are awarded to the 1st respondent, to be borne by the appellant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Mombasa
Admiralty Cause No E003 of 2021
Jurisdiction invoked
Appeal against an interlocutory decision of the High Court in admiralty proceedings, heard under the Court of Appeal Rules; specific appellate jurisdiction provision not stated in the judgment

Relief refused

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Joinder of the appellant as an interested party to the admiralty proceedings

The appellant had no claim against it in the proceedings and failed to show its presence was necessary for effectual and complete settlement or that its interests would be legally affected; joinder would stultify the proceedings

p. 9

Stay of the superior court proceedings pending determination of the London arbitration

The appellant sought joinder only to stagnate the proceedings and pursue collateral arbitration purposes; the trial judge's discretion was not shown to have been wrongly exercised

p. 8

Protection/exercise of the appellant's contractual lien over the 1st respondent's cargo

Since the appellant could not be joined in the proceedings, it could not exercise a right of lien over the cargo on board the vessel

p. 3

Costs

We award the costs of the appeal to the 1st respondent to be borne by the appellant.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

at interlocutory stage the court may only express its views in the matters in controversy on a prima facie basis.
p. 6Appellate restraint on interlocutory appeals
In this case, it is our view that by seeking to be joined to the in rem proceedings in order to secure a decree that it may obtain against the 1st respondent in the arbitration proceedings, the appellant set out, through judicial craft, to achieve collateral purposes not connected with the proceedings which were before the court.
p. 8Abuse of joinder in in rem admiralty proceedings
Joinder of parties to proceedings is not meant to assist parties who have claims in other cases to secure their interests in those other cases by stagnating proceedings in the cases in which they seek to join when they have no claim in those claims.
p. 9Purpose of joinder
Accordingly, we find no merit in this appeal, which we hereby dismiss. We award the costs of the appeal to the 1st respondent to be borne by the appellant.
p. 9Disposition and costs

Issues in the judgment

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minor

The judgment does not print the names of the parties in the title or coram; the appellant's actual name is never stated, it being referred to only as 'the appellant' (described elsewhere as having been wrongfully described as owners of the vessel, with Fairwind International Shipping Company Limited mentioned as the party with whom negotiations were carried out).

minor

The judgment appears to truncate a sentence regarding submissions on part 61.8(7) of the Civil Procedure Rules of England.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Starryway Trading & Shipping Company Ltd v Et Timbers PTE Limited & another (Civil Appeal E121 of 2022) [2023] KECA 1323 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1323/eng@2023-11-10

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.