An assortment of goods valued at Sh145 million will be cleared from the Mombasa port after five companies failed to block two companies, the Kenya Ports Authority and Kenya Revenue Authority, from releasing the consignment held in four containers.
Mombasa High Court judge Kizito Magare ruled that the five companies did not prove they had a legal or equitable interest in the proclaimed goods capable of stopping the ensuing execution process.
“I agree with the submission by the respondent that whereas the objectors placed material to demonstrate that they were previous owners, no evidence is provided in these objections proceedings to show that they are the current owners of the proclaimed goods,” said the judge.
According to Justice Magare, all materials placed before the court indicate that the proclaimed goods belong to Dooba Enterprises Ltd.
He said the objectors failed to prove they had a legal or equitable interest in the goods, and the judgment debtor had no interest in the cargo.
The five firms; Ningbo Ningshing Trading Group Inc., Top Anchor Industries, Ningbo Jiaje Water-Meter Manufacture Co. ltd Inc., Ningbo Texilong Pipe Industry Co. Ltd, and Quanzhou Datouyi Technology Co. ltd sought an interim injunction to restrain Mupeki Hauliers Ltd, KRA and KPA, their respective agents and or transporters from clearing, transporting and or otherwise removing all or any portion of the assorted goods from the port.
They also sought a declaration that the property and risk in the goods that are the subject of their respective applications had not passed to Dooba Enterprises Ltd / judgment debtor, therefore, could not be lawfully proclaimed or attached by Mupeki Hauliers Ltd.
The companies also asked for an order releasing all the goods to them and another condemning Mupeki Hauliers Ltd to pay costs of the applications, demurrage, and port charges from the date when the goods were wrongfully proclaimed until payment in full.
Their applications were primarily premised on the fact that the property and the risk in the goods, that they had dispatched following the conclusion of individual contracts with the Judgment debtor that were to be undertaken through bills of lading, had not passed to the firm (Dooba Enterprises Ltd), who was merely designated as consignee since it was yet to pay for the same.
“Property in the assorted goods would only pass to the Judgment debtor upon their delivery, tendering the original bills of lading and receiving full payment for all the attendant costs,” said the objectors.
The objectors argued that the constitution provides that every person has a right to acquire and own property which he/she should not be deprived of arbitrarily.
Those rights, the firms argued, are protected in law and give the court powers to grant a myriad of reliefs including but not limited to a temporary injunction against the disposal of property that is in danger of being wrongfully sold.
They argued that Mupeki Hauliers Ltd’s decision to proclaim the consignment ostensibly in an attempt to recover sums that stem from a dispute pitting it (Mupeki) against Dooba was unlawful and unjust.
“This is since the property and risk in the assorted goods had not passed to Dooba primarily as a result of the fact that it was yet to pay for them,” the objectors lamented.
However, Mupeki Hauliers Ltd and the government parastatals submitted that the objectors had not placed sufficient material before the court to show that they were the owners of the goods as claimed.
They argued that Section 21 (3) of the Sale of Goods Act Chapter 31 of the Laws of Kenya, which regulates contracts for the sale of goods through bills of lading, explicitly provides that where goods are shipped, by an order bill of lading, the seller is deemed to reserve the right of disposal.
The respondents, therefore, submitted that the objectors had not proved on a balance of probabilities that they were the owners of the proclaimed goods.
