Claims were brought by a master and crew for unpaid wages, disbursements, special damages, repatriation costs, and general damages. The claimants successfully sought the arrest of the Kenya-registered FV Maab Aqua 2 as security for their claims. The first defendant shipowner (the applicant) sought the vessel's release and the striking out of the claims for want of jurisdiction.

According to the applicant, art 165(5)(b) of the Constitution of Kenya deprived the High Court of jurisdiction in matters falling within the jurisdiction of the Employment and Labour Relations Court (the ELRC). The claimants argued to the contrary that in England, under s 20(2)(o) of the Senior Courts Act 1981 (UK) (SCA) 'any claim by a master or member of the crew of a ship for wages (including any sum allotted out of wages or adjudged by a superintendent to be due by way of wages' formed part of the jurisdiction of the High Court of Justice in England and accordingly by s 4 of the Judicature Act, Cap 8 (Kenya), (the Act) formed part of the admiralty jurisdiction of the High Court. The claimants further argued that they enjoyed a maritime lien for master's wages, seafarers' wages, arrears of wages, and repatriation costs. Their claims were in rem and not claims against a person.

Held: Application denied.

In Kenya, admiralty jurisdiction has been conferred to this Court by s 4 of the Act, which states as follows:

(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. ...

The Court of Appeal discussed the application of this provision in Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd [1989] eKLR. The Court noted that in the exercise of its admiralty jurisdiction, it has to apply the law of England and that, in order to discover what that law is, one has to look at the SCA, and more specifically ss 20 and 21 of the SCA. In the wake of these provisions, and the Court of Appeal's pronouncements in Caltex Oil (Kenya) Ltd, it is beyond debate that this Court is vested with jurisdiction over matters admiralty. As far as the claimants are concerned, their claims concern admiralty matters covered under ss 20(2)(o) and (p) of the SCA.

It is important to bear in mind that jurisdiction over matters admiralty is conferred not by the procedure of the High Court of England but by s 4 of the Act. It is the manner of exercise of the admiralty jurisdiction that should be as in the High Court in England, and in conformity with international laws and the comity of nations. It is up to the legislature, if in its view it is necessary, to amend and align s 4 of the Judicature Act with s 12 of the Employment and Labour Relations Act (the Employment Act) and confer certain aspects of admiralty jurisdiction on the ELRC. However, in the current scheme of things, neither of these two provisions of the law confer jurisdiction on the ELRC.

'Wages' in the context of s 20 of the SCA, are more than an employment and labour relations matter, for which only the ELRC is established to interrogate in the event of a dispute. As long as the claim for wages involves a ship or vessel or is maritime-oriented, the claim acquires the status of an admiralty matter, in respect of which only this Court is vested with the requisite jurisdiction.

This is why 'any claim by a master or member of the crew of a ship for wages (including any sum allotted out of wages or adjudged by a superintendent to be due by way of wages) or 'any claim by a master, shipper, charterer or agent in respect of disbursements made on account of a ship' is not prescribed as an employment and labour relations matter under s 12 of the Employment Act; it is rather an admiralty matter under the SCA.

It cannot be argued that in assuming jurisdiction of this matter and issuing orders to arrest the applicant’s ship, this Court usurped the jurisdiction of the ELRC and most importantly, failed to give due regard to art 162(5) of the Constitution.

The Court is not persuaded by the applicant's submission that for purposes of clothing the ELRC with the requisite jurisdiction to entertain this claim 'articles 162(2)(a) and 165(5)(b) of the Constitution altered, amended and adapted Section 4 of the Judicature Act, Cap 8, Laws of Kenya, by deleting the words "High Court" and substituting them with the words "Employment & Labour Relations Court" as regards all claims for wages by the Master, Officers and crew of ships' and that 'the High Court however retains jurisdiction in respect of other admiralty matters but not on crew wages'.

The flaw in this argument is that it presupposes conferment of jurisdiction by implication. Conferment of jurisdiction cannot be implied; to be precise, it cannot be implied that s 4 of the Act has been 'altered, amended or adapted' to confer admiralty jurisdiction or any part thereof to the ELRC.

The other flaw in the applicant’s submission is the presumption that since the admiralty jurisdiction is now shared between the ELRC and this Court, a claimant who would otherwise properly lodge a composite claim in the Admiralty Court is now enjoined to proceed in a truncated manner, filing one suit in this Court and filing another claim, against the same defendant, for wages, in the ELRC.

If the applicant's argument that the ELRC now has jurisdiction to deal with those aspects of admiralty matters relating to employment and labour relations, and that 'the High Court ... retains jurisdiction in respect of other admiralty matters' is taken to its logical conclusion, it means that there will be two parallel suits filed in two different courts by the same claimant, against the same defendant. In these circumstances, the danger of conflicting decisions or orders from two different courts in respect of the same matter, to the extent that the claims in the two courts may be intertwined, cannot be ruled out. When this happens, courts will obviously bring the administration of justice into disrepute.

The framers of the Constitution cannot be said to have intended that s 4 of the Act should be interpreted in a manner that creates a fertile ground for untidy and chaotic litigation. In short, no interpretation should be given to any of the provisions of the Constitution or of any statute, for that matter, that would lead to absurdity.