The procedure of maritime dispute resolution in Kenya

In the realm of globalization in which we exist today, a large number of transactions are facilitated by players that trek the 7 seas of the globe. Given the complexity of issues that arise in the sea such as jurisdiction, border disputes and piracy, it is thus no wonder that disputes arise given the inability to replace the high seas as a means to an ends in attaining the goal of global trade. This article delves into the procedure applicable in resolution of maritime disputes that arise in Kenya. The article further concludes by exploring the use of alternative dispute resolution in resolving maritime disputes.

Maritime law/admiralty law is a group of laws that govern anything that occurs on the sea or navigable waters. Generally, any incidents that occur on navigable waters are subject to admiralty and maritime jurisdiction. In Kenya, admiralty jurisdiction is exercised by the Admiralty High Court which sits in Mombasa.

Section 4 of the Judicature Act, Cap 8 Laws of Kenya provides that, ‘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.’

It is important to note that the Civil Procedure Rules do not apply to matters pursued in the Admiralty High Court but rather England’s 1979 High Court (Admiralty) Rules.

Procedure of Maritime Litigation in Kenyan Courts

The procedure for instituting admiralty claims in the English Courts, which is similar to Kenyan Courts, is enumerated in Part 61 in the Rules and Practice Directions of the Civil Procedure Rules. Under these rules, there is a distinction in terms of the various admiralty claims. These include claim in rem, collision claim, limitation claim and salvage claim. However, the procedure involved in the resolution of these claims is basically similar.

In the Kenyan courts, the process of bringing a cause of action in an admiralty court begins with the filing of a maritime claim in the admiralty court in Mombasa.

Actions that constitute maritime claims include:

1. Damage caused by any ship either in collision or otherwise.
2. Loss of life or personal injury caused by any ship or occurring in connection with the operation of any ship.
3. Agreement relating to the use or hire of any ship whether by charter party or otherwise.
4. Agreement relating to the carriage of goods in any ship whether by charter party or otherwise.
5. Loss of or damage to goods including baggage carried in any ship.
6. Construction, repair or equipment of any ship or dock charges and dues.
7. Wages of Masters, Officers, or crew.
8. Disputes as to the title to or ownership of any ship and
9. The mortgage or hypothecation of any ship.

In East African Power Management Limited v Owners of the vessel “Victoria Eight”, the procedure for litigating maritime claims in Kenya was affirmed by J.W Mwera the then sitting admiralty judge. The learned judge stated in his ruling that the office of the Registrar in the UK can be taken to be equal to that of the Deputy Registrar in charge of the High Court civil registry. The High Court of Kenya is supposed to exercise admiralty jurisdiction in consonance with the Admiralty Procedure Rules of the High Court in England; by virtue of section 4 of the Judicature Act. The High Court (Admiralty) Rules 1979 provide that the forms to be used in admiralty proceedings shall be those in use for the time being in the Queen’s Bench Division (Admiralty Court) in England, subject to any variations of whatever nature which may be expedient.

According to the High Court Registry and operational manual of Kenya, admiralty matters can be filed and heard at any time when the need arises. The operational manual further sets out the requirements for instituting an admiralty claim.

Requirements for Instituting an Admiralty Claim in Kenya

The requirements to start an admiralty claim in Kenya are similar to the requirements in the UK. Other than the type of forms that are involved, the procedure is clearly adopted from the English court procedure.

In the first instance, a claim form is issued which specifically identifies the nature of the claim and the particulars around it. The particulars include timing and the amounts of wages to be collected. Thereafter, the claimant files a declaration which enables the judge to determine whether there is a justified reason to issue an arrest warrant. After the case is established, the admiralty judge may then commission a warrant of arrest which then paves the way for the beginning of an admiralty proceeding. Essentially, the Claim form and warrant of arrest must be sealed before service.

Registration Procedure

An Application and undertaking for arrest is filed by way of Certificate of Urgency. The certificate of urgency is assessed and the necessary court fees are paid. Afterwards, a file is opened and taken to the Deputy Registrar who ascertains whether there is a cause of action. The deputy registrar then forwards the file to the admiralty judge who is the judicial officer mandated to hear admiralty matters and also sign orders and warrants of arrests in admiralty matters.

Hearing and Execution

According to the High Court of Kenya Registry Operation Manual, the following are the steps involved in the hearing and execution of admiralty claims:

1. Once the matter is heard and orders issued, service is effected by the court bailiff. The bailiff executes the warrant of arrest by serving it to the Port police or the harbor master.
2. The bailiff serves the captain or the highest ranking officer on board the vessel and makes sure that a copy of the warrant is attached on the wheel house (cabin).
3. In the event that the claimant’s advocate files consent for release of the vessel, and the same is adopted by court, it has to be accompanied by an order issued and signed by a Judge for the vessel in question to be released.
4. The execution of Admiralty decisions are overseen by an Admiralty Marshal (a Registrar, a Deputy Registrar or a Magistrate) appointed by the Chief Justice.
5. When there is a sale of the vessel, Admiralty Marshal receives bids from potential buyer, opens the bids in open Court with the bid being awarded to the highest bidder.
6. Monies received from the sale of the vessel are deposited in an account in the name of the claimant advocate and the Admiralty Marshal until such a time the money is released to the claimant.

Also, from the High Court (Admiralty) Rules, it is the admiralty marshal who is endowed with powers and authority to carry out duties and functions similar to the admiralty marshal of the High court of justice in England.

Use of Alternative Dispute Resolution in Maritime Disputes

Given the complex and delicate nature of maritime disputes, parties often opt to use Alternative Dispute Resolution mechanisms as best practice in resolving the said disputes.

The more pronounced maritime dispute resolver is the London Maritime Arbitrators Association, created pursuant to the 1996 UK Arbitration Act. The Association handles over 1700 cases annually and make over 500 awards annually. These awards are enforceable in over 160 countries, including Kenya by virtue of being signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

In 2015, BAILLI (England’s equivalent of Kenyalaw.org) established that in the last 3 years to 2015 there were 56 applications to overturn awards of which 24 were given permission to appeal but in less than 1% of cases was the award actually overturned.

The preference for ADR arising in maritime disputes has also been highlighted in the Kenyan context as witnessed in the case of E-Star Shipping & Trading Company v The Nabiha Queen [2021] eKLR. In this case, it was argued that Section 6 (1) of the Arbitration Act provides that a party must at the earliest opportunity make it known to the Court that there exists an arbitration agreement which would lead to the matter being stayed pending the outcome of the arbitration. Opposing Counsel stated that failure to raise it at the earliest opportunity nullifies the effectiveness of said section. The Court noted that justice would not be done if the matter was tried despite the arbitration agreement not being brought to its attention at the earliest opportunity.

As it stands, therefore, Alternative Dispute Resolution is favoured over litigation in maritime disputes and as such the Admiralty Courts are more of administrative as they are largely employed for the enforcement of arbitral awards. It is no wonder that it Alternative Dispute Resolution, arbitration in particular, is considered best international practice in maritime dispute resolution.