The defendants sought to set aside a warrant of arrest issued against the R Ocean, to release the vessel, and to strike out the claim on the basis that the Court lacked jurisdiction to hear and determine the suit.

Held: Applications dismissed.

In Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd [1989] KLR it was held:

Jurisdiction is everything. Without it a court has no power to make one more step. Where a court has no jurisdiction there would be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. ... Where a court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgment is given.

Section 4 of the Judicature Act of Kenya confers on the High Court jurisdiction to hear admiralty matters 'in the same manner and to the same extent; and ... in accordance with the same procedure, as in the High Court in England, ... exercised in conformity with international laws and the comity of nations'.

The relevant law for a claim in rem is to be found in s 20 of the Act which provides for the admiralty jurisdiction of the High Court. The claim arose from a dispute in respect of a vessel that was chartered to carry bitumen from Bashar, Iraq, to Mombasa, Kenya. The claimant's case was that due to the vessel's mismanagement, diversion for technical maintenance, and misrepresentation of seaworthiness of the vessel, there was a 26-day delay causing severe damage to the claimant including cancellation of the order, loss of profits, loss of business, charging of interest on the financed vessel, and loss of reputation.

The claim falls squarely under s 20 of the Act, more specifically, s 20(2)(h) and (k) of the Act. It arises out of an agreement related to the carriage of goods in the vessel or in this case, the hire of a ship, and also related to a claim in the nature of towage in respect of the vessel. It follows that the Court is vested with jurisdiction to hear and determine the claim against the first defendant vessel.

As regards jurisdiction over the other defendants, it is evident that the claim in rem has been brought against the owners and manager of the vessel. The applicants admit that the first and third defendants are owners of the vessel, and the second defendants are managers of the vessel. It follows that the claim could be brought against such parties in personam. In The Nordglimt [1987] 2 Lloyd’s Rep 470 (CMI2230), Hobhouse J, stated as follows in regard to the issue of when an action in rem becomes enforceable in personam:

Unless and until anyone appears to defend an action in rem, the action proceeds solely as an action in rem and any judgment given is solely against the res. It is determinative and conclusive as against all the world in respect of the rights in the res, but does not create any rights that are enforceable in personam. An action in rem may be defended by anyone who has a legitimate interest in resisting the plaintiff's claim on the res. Such a person may be the owner of the res but, equally, it may be someone who has a different interest in the res which does not amount to ownership, or, again, it may be simply someone who also has a claim in rem against the res and is competing with the plaintiff for a right to the security of a res of an inadequate value to satisfy all the claims that are being made upon it. ... Unless and until a person liable in personam chooses to defend an action in rem, the action in rem will not give rise to any determination as against such person or any personal liability on his part, nor will it give rise to any judgment which is enforceable in personam against any such person.

Applying s 21(4)(b)(i) of the Act, it is apparent that the claimant properly brought the claim in rem, as the ship is beneficially owned and managed by the first, second, and third defendants. This Court is thus vested with jurisdiction to entertain the claim.