This was an appeal against two judgments of the Mombasa Chief Magistrate's Court. On 17 October 2016, as the appellant was crossing the ferry terminal from Likoni Ferry to Mombasa Island and boarding the MV Kilindini, people started pushing from behind, causing him to fall down. There was a stampede and people stepped on him, as a result of which his left ankle was fractured. He attributed this accident to the negligence of the respondent. The appellant was awarded KES 350,000 in general damages and KES 2,000 in special damages in the first judgment of 4 October 2018. However, this was reversed by a second judgment of the same Court on 11 August 2019.

The respondent argued, among other things, that the Court below lacked jurisdiction to hear and determine the suit. In particular, the respondent argued that the Magistrate had erred in: (a) failing to appreciate the extent and applicability of the High Court admiralty jurisdiction under s 4 of the Judicature Act (Cap 8, Laws of Kenya); (b) failing to appreciate the extent and applicability of what constitutes a 'maritime claim' under Article 1 of the International Convention on the Arrest of Ships 1999 and s 20 of the Senior Courts Act 1981 (UK); (c) making a finding on a non-existent statute termed the Supreme Court Act 1981 (UK); and (d) misconstruing the jurisdiction of the High Court strictly applicable to certain types of vessels, termed ships, in s 20(2) of the Senior Courts Act 1981 (UK), and misapplying it to ferries, contrary to s 2 of the Ferries Act (Cap 410, Laws of Kenya).

The appellant argued that s 4 of the Judicature Act clothes the High Court with Admiralty jurisdiction in all matters arising in the high seas or in territorial waters or upon any lake or other navigable inland waterways in Kenya; that this jurisdiction confers the High Court with jurisdiction to hear and determine any question and all claims under s 20 of the Senior Courts Act 1981 (UK); and that maritime claims under that section relate to ships. The Kenyan Merchant Shipping Act and the Ferries Act cater for other water vessels. The appellant cited s 2 of the Ferries Act and submitted that the lower Court had jurisdiction to deal with the case before it. He argued that s 3(1) of this Act expressly takes away application of any other law on Kenya Ferry Services Ltd and exclusively left it to the current Act and to the Road Authority. He also submitted that Kenya Ferry Services Ltd does not fall under the Maritime Authority, and that under the Ferries Act, the MV Kilindini is not a ship but a ferry boat. Thus, the accident that occurred was not an admiralty matter for the High Court to determine.

Held: Appeal upheld. The Magistrate had jurisdiction to hear and determine the dispute before him. First judgment of 4 October 2018 upheld; second judgment of 22 August 2019 set aside.

Section 4 of the Judicature Act (Cap 8 Laws of Kenya) provides:

(1) The High Court shall be a court of admiralty, and shall exercise admiralty jurisdiction in all matters arising on the high seas, or in territorial waters, or upon any lake or other navigable inland waters in Kenya.
(2) The admiralty jurisdiction of the High Court shall be exercisable -

(a) over and in respect of the same persons, things and matters; and
(b) in the same manner and to the same extent; and
(c) in accordance with the same procedure,

as in the High Court in England, and shall be exercised in conformity with international laws and the comity of nations ...

Section 20 of the Senior Courts Act 1981 (UK) provides as follows -

(1) The Admiralty jurisdiction of the High Court shall be as follows, that is to say -

(a) jurisdiction to hear and determine any of the questions and claims mentioned in subsection (2);
(b) jurisdiction in relation to any of the proceedings mentioned in subsection (3);
(c) any other Admiralty jurisdiction which it had immediately before the commencement of this Act; and
(d) any jurisdiction connected with ships or aircraft which is vested in the High Court apart from this section and is for the time being by rules of court made or coming into force after the commencement of this Act assigned to the Queen’s Bench Division and directed by the rules to be exercised by the Admiralty Court.

(2) The questions and claims referred to in subsection (1)(a) are - ...

(f) any claim for loss of life or personal injury sustained in consequence of any defect in a ship or in her apparel or equipment, or in consequence of the wrongful act, neglect or default of -

(i) the owners, charterers or persons in possession or control of a ship; or
(ii) the master or crew of a ship, or any other person for whose wrongful acts, neglects or defaults the owners, charterers or persons in possession or control of a ship are responsible.

Black’s Law Dictionary (10th ed) 1588 describes a ship as a type of vessel used or intended to be used in navigation. A ferry is defined at 1588 of the same dictionary as a boat or vessel used to carry persons or property across water with fixed terminals and short distances. It is therefore clear that there is a distinction between a ferry and a ship. The MV Kilindini is not a ship, but is a ferry boat, and falls under the provisions of the Ferries Act.