This case involved the defendant's application seeking to set aside warrants of arrest and the claim form, and the claimant's application seeking judicial sale of the arrested motor vessel.

Held: The warrants of arrest are set aside and the claim form is dismissed.

The defendant argues that the declaration in support of the warrant of arrest states that the person who would be liable on the claim in an action in personam is Mr Yoni Bendas, who was shown to have never been a beneficial owner as respects all the shares in the motor vessel as required by s 21(4) of the Senior Courts Act 1981 (UK) as applied to Kenya. In support of its application, the defendant exhibited the bill of sale of the vessel and provisional certificate of registry showing the registered owner of the vessel as Chantiers de Normandie France since 2013.

The claimant contends that the statement of claim and application for warrant of arrest is an action in rem against the motor vessel Tanya and not against Mr Yoni Bendas. There is a maritime lien whose existence, nature, and quantum has not been denied, and the defendant has therefore submitted to the jurisdiction of the Court. The claimant noted that s 20 of the Senior Courts Act (UK), as applied in Kenya, allows and recognises as an admiralty claim the sum claimed on account of goods, materials and services rendered to Tanya for its towage, operation and maintenance arising out of an operation and maintenance agreement between the parties including disbursements and on account of a maritime lien.

The incontestable position of the law is that parties are bound by their pleadings. The claimant said:

• The person who would be liable on the claim is an action in personam ('the relevant person') is [Mr Yoni Bendas].
• When the right to bring the claim arose, Mr Yoni Bendas was the owner or in possession or in control of the Motor Vessel Tanya.
• Mr Yoni Bendas was as at the date hereof the beneficial owner of all the shares in the Motor Vessel Tanya or was the charterer of it under a charter by demise.

These words underscore the fact that if a claim in personam was to be pursued, the defendant would be Yoni Bendas, the owner or a person in possession and control of the vessel by virtue of beneficial ownership of all the shares in the motor vessel Tanya. Those words are never declared in an application for arrests in vain. They are so declared to invoke the admiralty jurisdiction of the Court. The need to make that declaration was explained by Nyarangi JA, in Re MV Lillian 'S' [1989] KLR to 'serve the purpose of identifying the person who would be liable on a claim in an action in personam to have his ship arrested'.

Now that the documents filed by both sides displace assertion of Mr Benda’s ownership, it follows that the jurisdiction was not properly invoked and the ensuing warrant of arrest was erroneously issued, and that error must be corrected by setting the warrants aside, and the claim being unfounded for that reason ought to be dismissed. The claimant's application for judicial sale accordingly falls away.