This was an application brought by the defendant to stay admiralty proceedings in rem, direct that the matter be referred to arbitration in London, strike out the claim in rem brought against the MV Ioannis G, and set aside the warrant of arrest.

The application was brought on the grounds that:

(i) The claimant had agreed to refer the dispute in this matter to arbitration under the terms and conditions of carriage under the relevant bill of lading issued at Novorossiyki;

(ii) The Admiralty Court's jurisdiction had not been invoked pursuant to s 20 of the Senior Courts Act 1981 (UK) (the Act);

(iii) No reference had been made to any of the provisions of the Admiralty Court's jurisdiction under s 20(1)(a) of the Act, as well as s 4 of the Judicature Act, Cap 8 Laws of Kenya, which were not pleaded;

(iv) No basis had been laid as to the mode of exercise of the Admiralty Court's jurisdiction which arises in this claim in rem under the provisions of s 21(4) of the Act;

(v) There had been failure to comply with the mandatory admiralty rules and practice directions under Pt 61 of the Civil Procedure Rules (UK) (the CPR) resulting in the warrant of arrest of the vessel being wrongly issued;

(vi) This Court therefore has no jurisdiction to hear and determine this admiralty claim; and

(vii) The claim form and warrant of arrest are otherwise an abuse of the process of the Court and/or the arrest of the vessel is unjust and or wrongful.

Held: Application granted. As the mandatory requirements provided under Pt 61.5 of the CPR and Practice Direction 61 on Admiralty claims were not complied with, the claim in rem is struck out and the warrant of arrest set aside.

This Court has jurisdiction to hear admiralty cases by virtue of the provisions of s 4 of the Judicature Act, Cap 8 Laws of Kenya:

(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.

(3)  In the exercise of its admiralty jurisdiction, the High Court may exercise all the powers which it possesses for the purpose of its other civil jurisdiction.

Section 20(2) of the Act lists 18 types of maritime claims which may be brought under the admiralty jurisdiction of the High Court in respect of which a vessel may be arrested. The information that needs to be filled in the claim form (Form ADM1) is brief details of the claim and particulars of the claim at the time of filing or at a later date. With regard to the applicable provisions of the law, these could have been provided in Form ADM4 (application and undertaking for arrest and custody) as a matter of good practice.

Form ADM4 contains the following inscription:

The Admiralty Marshal is requested to execute the warrant in the above claim lodged herewith by the arrest of motor vessel 'IOANNIS G' of the port of Valleta, Malta, lying at the Port of Mombasa. The Court is requested to issue the Warrant of Arrest even though the claimant has not stated the owner of that vessel due to time constraints. [emphasis added].

There is no doubt that the claimant failed to comply with the mandatory requirement of disclosing the beneficial owner of the vessel when filing its claim form and application and undertaking for arrest and custody. This Court takes judicial notice that information about the ownership of the vessel could have been readily obtained at the time the claimant's counsel was filling the documents in issue, through an internet search from the Lloyd's Register of ships and supplements, together with an appropriate inquiry of Lloyd's intelligence of any changes that may have occurred in ownership of a ship. This should not have been a difficult hurdle to surmount. Forms ADM1 and ADM4 do not give leeway to a claimant to disclose the beneficial owner of a ship at a later date other than at the time of filing the claim.

Singapore admiralty law is largely similar to the law applicable in England in admiralty claims. In The Bunga Melati 5 [2012] 4 SLR 546, the Singapore Court of Appeal considered the standard of proof that has to be satisfied where a party invokes the admiralty jurisdiction. The Court stated that Step 1 was the need for a claimant to show that it had a claim falling within the statute; step 2 was the requirement that the claim arose in connection with a ship; step 3 involved identifying the person liable on the claim in personam; step 4 required showing that the relevant person was, when the cause of action arose, the owner or charterer of, or in possession or control of, the vessel; and step 5 involved showing that the relevant person had, at the time the action was brought, the requisite beneficial interest.

The claimant argues that its failure to comply is a technicality that is curable under the provisions of art 159(2)(d) of the Constitution. Admiralty proceedings fall under a specialised area of law governed by Conventions that are developed through member States of the International Maritime Organization. Kenya applies the law in England as the Parliament of Kenya has not enacted an Admiralty Jurisdiction Act. Part 61 of the CPR are therefore binding on admiralty practice in Kenya. For this reason, failure by the respondent to follow the laid down rules and practice directions cannot be brushed off as a mere technicality that is curable under art 159(2)(d) of the Constitution of Kenya. This Court declines to lower the bar for the respondent just because the admiralty claim was filed in Kenya. An admiralty claim filed in Kenya must be on all fours with an admiralty claim filed in England. 

Another non-compliance on the part of the claimant is that there is no evidence of a request for a search having been made in the Register before the warrant of arrest was issued to determine whether there was a caution in force against arrest of the vessel. In reference to Form ADM4, there is no endorsement from the Admiralty Marshal to confirm that no caution had been filed or entered against the arrest of the vessel. The claimant submitted that a search was done but the Admiralty Marshal failed to endorse the form. It is difficult to establish from the record if that is the correct position, other than to note that the requirement for a search being made in the Register to ascertain if there is a caution against arrest of a ship before a warrant is issued, is a mandatory provision under r 61.5(3)(a) CPR.