1. INTRODUCTION
The Plaintiff, Alfa Alfa Energy S.A., a company incorporated in Greece and engaged in the manufacture and export of specialised bituminous, waterproofing and construction chemical products, moved this Court by a Notice of Motion dated May 2026 brought under Order 5 Rules 21, 22B and 29, Order 40 Rules 1(a) and 4(1) of the Civil Procedure Rules, 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act.
The Plaintiff seeks leave to effect service outside Kenya through electronic mail, injunctive relief restraining release of a consignment currently at the Port of Mombasa, a mandatory order releasing the consignment into its custody for repatriation, police assistance in implementation of the orders and costs.
The application is supported by the affidavit of Christos Evangeliou, the Plaintiff's Managing Director and Chief Executive Officer, sworn on 6th May 2026.
The Defendants were duly served but neither entered appearance nor filed any response.
2. BACKGROUND
The evidence before the Court reveals that in December 2025 the Plaintiff received enquiries for purchase of specialised construction products from persons presenting themselves as representatives of IMCD UK Limited.
The 2nd Defendant negotiated the transaction using the email address imcd_group@europe.com and represented himself as Paul Hanbury of IMCD UK Limited.
Following extensive negotiations, the Plaintiff issued Proforma Invoices PI 2226.1 to PI 2226.5 with a combined value of Euros 193,725.68.
Subsequently, the Plaintiff received Purchase Order No. IMCD1001245 and shipping instructions designating the consignee as IMCD LTD of Mukono, Uganda.
Relying upon those representations, the Plaintiff manufactured, packaged and shipped the goods through CMA CGM.
The shipment was covered under Bill of Lading No. PIR0270386 and packed in the following containers:
• TCKU6388701
• CMAU7660145
• TCKU6376721
• CMAU7326267
• TLLU4521322
Payment was agreed at sixty (60) days from the Bill of Lading date.
No payment was received.
Upon inquiry, IMCD UK Limited formally confirmed on 30th April 2026 that:
(a) it had never placed any order with the Plaintiff;
(b) it had no presence in Uganda;
(c) it had no relationship whatsoever with the Defendants; and
(d) its corporate identity had been fraudulently appropriated.
The Plaintiff thereafter discovered that the Defendants had allegedly obtained possession of the original shipping documents through fraudulent misrepresentations.
CMA CGM subsequently informed the Plaintiff that the cargo would be released to the holder of the original Bills of Lading unless restrained by court order.
The Plaintiff therefore approached this Court seeking urgent intervention.
3. ISSUES FOR DETERMINATION
The issues arising for determination are:
(i) Whether leave should be granted for service outside Kenya through electronic mail.
(ii) Whether the Plaintiff has established a prima facie case.
(iii) Whether irreparable injury has been demonstrated.
(iv) Whether the balance of convenience favours the Plaintiff.
(v) Whether the Court should grant a mandatory order releasing and repatriating the cargo.
(vi) What final orders should issue.
4. ANALYSIS AND DETERMINATION
4.1 Service Outside Kenya by Email
Order 5 Rule 22B of the Civil Procedure Rules expressly recognizes service through electronic mail where the email address is the last known and confirmed address used by the recipient.
The evidence before the Court demonstrates that the Defendants conducted the entirety of the transaction through the email addresses:
• imcd_group@europe.com
• imcd.group@europe.com
• imcd.ltd@africamail.com
These addresses constitute the Defendants' last confirmed and used electronic addresses.
Further, the property forming the subject matter of the dispute is physically situated within the jurisdiction of this Court.
Accordingly, leave for service outside Kenya through the stated email addresses is merited and is hereby granted.
4.2 Prima Facie Case
The principles governing interlocutory injunctions are settled in Giella v Cassman Brown & Co. Ltd [1973] EA 358, Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125 and Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR.
The Plaintiff's claim is founded on fraudulent misrepresentation.
The documentary evidence demonstrates that the Defendants represented themselves as affiliates and agents of IMCD UK Limited.
The evidence further shows that the Plaintiff acted on those representations, manufactured goods valued at approximately Euros 193,725.68, shipped the goods and released original shipping documents.
The Statement of Fraudulent Activity issued by IMCD UK Limited unequivocally confirms that its identity was fraudulently used.
No response has been filed challenging that evidence.
The Court is satisfied that a serious and arguable claim has been established.
The Plaintiff has therefore demonstrated a prima facie case with a probability of success.
4.3 Irreparable Injury
The consignment consists of specialised industrial products currently within the Port of Mombasa.
Absent intervention by this Court, the cargo risks release to persons alleged to have procured shipping documents through fraud.
Once released, the cargo may be removed from Kenya and dissipated beyond the reach of the Court.
The Defendants operate from foreign jurisdictions and under disputed identities.
Recovery of the cargo or its monetary value would therefore be highly uncertain.
The injury likely to be suffered by the Plaintiff cannot be adequately compensated through an award of damages.
The second limb of the Giella test is therefore satisfied.
4.4 Balance of Convenience
The balance of convenience overwhelmingly favours preservation of the cargo.
If the injunction is refused and the goods are released, the Plaintiff may permanently lose cargo worth approximately Euros 193,725.68.
Conversely, if the injunction is granted and the Defendants ultimately succeed, any delay can be compensated through appropriate orders of the Court.
The balance of convenience therefore lies in favour of the Plaintiff.
4.5 The Mandatory Order for Release and Repatriation
The Plaintiff seeks a mandatory order directing that the consignment covered under Bill of Lading No. PIR0270386 be immediately released into its custody and repatriated to the country of origin or any other destination of its choice.
The principles governing the grant of a mandatory injunction at an interlocutory stage are well settled. In Kenya Breweries Limited & Another v Washington O. Okeyo [2002] eKLR, the Court of Appeal approved the decision in Locabail International Finance Ltd v Agroexport & Others [1986] 1 ALL ER 901 and held that a mandatory injunction should only issue in exceptional and clear circumstances where the Court possesses a high degree of assurance that the order will ultimately be justified at trial.
Having carefully examined the material before it, this Court is satisfied that this matter falls within that exceptional category.
The evidence presented by the Plaintiff remains wholly uncontested. The Defendants represented themselves as agents and affiliates of IMCD UK Limited. Acting upon those representations, the Plaintiff released goods valued at approximately Euros 193,725.68 and surrendered the original shipping documents. IMCD UK Limited subsequently confirmed that the Defendants were neither its agents nor affiliates and that its corporate identity had been fraudulently appropriated.
The Defendants have not challenged these allegations. They have not entered appearance. They have not filed a defence. They have not asserted any lawful proprietary interest in the goods.
The Court is therefore satisfied that the Plaintiff has established a superior proprietary claim to the cargo.
The principle of nemo dat quod non habet applies. A party who acquires shipping documents through fraud acquires no lawful title capable of defeating the rights of the true owner.
The Court further notes that continued detention of the cargo at the Port of Mombasa serves no legitimate purpose and only exposes the cargo to escalating port charges, customs liabilities, storage charges, demurrage, detention charges and the risk of deterioration.
In the circumstances, the Court possesses the requisite high degree of assurance that the Plaintiff is entitled to immediate possession of the cargo.
Accordingly, a mandatory order for release and repatriation shall issue.
4.6 Effect of Non-Appearance by the Defendants
The Defendants were duly served as evidenced by the Affidavit of Service on record.
Despite service, the Defendants have neither entered appearance nor filed any response.
They have not disputed the allegations of fraud.
They have not challenged the authenticity of the documents exhibited by the Plaintiff.
They have not asserted ownership of the cargo.
They have not explained their failure to honour payment obligations amounting to approximately Euros 193,725.68.
The Court is entitled to draw an adverse inference from such silence.
The evidence before the Court is therefore wholly uncontested.
The Court is satisfied that no triable defence has been disclosed and that the interests of justice require immediate intervention to protect the Plaintiff's proprietary rights.
The Court further notes that no person has appeared before it asserting a lawful claim to the cargo.
Nevertheless, to safeguard any legitimate future claim that may arise, the Plaintiff shall file an undertaking to indemnify the Defendants, CMA CGM Kenya Limited, Kenya Ports Authority and any other person who may subsequently establish a lawful proprietary interest in the cargo against any loss directly arising from implementation of these orders.
5. DISPOSITION
Having carefully considered the application, the affidavit evidence, the documentary exhibits and the applicable law, the Court is satisfied that:
(a) The Plaintiff has established a prima facie case with a probability of success.
(b) The Plaintiff stands to suffer irreparable loss unless the orders sought are granted.
(c) The balance of convenience overwhelmingly favours the Plaintiff.
(d) Exceptional circumstances exist warranting the grant of a mandatory injunction.
(e) The Defendants have failed to challenge the Plaintiff's evidence despite due service.
(f) The interests of justice require immediate release of the cargo to the Plaintiff.
6. FINAL ORDERS
Accordingly, the Notice of Motion dated May 2026 is allowed and the Court makes the following orders:
1. Leave is hereby granted to the Plaintiff to effect service of process outside Kenya upon the Defendants through the following email addresses:
(a) imcd_group@europe.com ;
(b) imcd.group@europe.com ; and
(c) imcd.ltd@africamail.com .
2. A permanent order is hereby issued restraining the Defendants, CMA CGM Kenya Limited, Kenya Ports Authority, their servants, agents or assigns from taking possession of, transferring, removing, releasing, dealing with or otherwise interfering with the consignment covered under Bill of Lading No. PIR0270386 and contained in Containers Nos. TCKU6388701, CMAU7660145, TCKU6376721, CMAU7326267 and TLLU4521322.
3. The said consignment is hereby released forthwith into the custody, possession and control of the Plaintiff, Alfa Alfa Energy S.A.
4. The Plaintiff shall be at liberty to repatriate the consignment to Greece or transport it to any other destination of its choice.
5. The Officer Commanding Station (OCS), Port Police Station, Mombasa, shall supervise and ensure full compliance with these orders and provide such assistance as may be necessary for implementation.
6. The Plaintiff shall bear and settle all lawful statutory charges necessary for release and exportation of the cargo including customs duties, taxes, levies, port charges, storage charges, container detention charges, demurrage and any other lawful charges payable to the relevant authorities or service providers.
7. The Plaintiff shall, within seven (7) days of this ruling, file before this Court a written undertaking indemnifying the Defendants, CMA CGM Kenya Limited, Kenya Ports Authority and any other person who may subsequently establish a lawful proprietary claim to the cargo against any loss directly attributable to implementation of these orders.
8. Any person who subsequently establishes a lawful proprietary interest in the cargo shall be at liberty to apply to this Court for appropriate relief.
9. Costs of this application and of the suit are awarded to the Plaintiff and shall be borne jointly and severally by the Defendants.
10. In view of the final determination of all issues concerning custody, possession and release of the cargo, there remains no outstanding issue requiring further adjudication before this Court. Save for purposes of enforcement of these orders or determination of any future lawful proprietary claim, this suit is hereby marked as concluded and closed.
It is so ordered.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS ....10th.... DAY OF ......June.............. 2026.
.
HON. LADY JUSTICE W. K. MICHENI
The Plaintiff, Alfa Alfa Energy S.A., a company incorporated in Greece and engaged in the manufacture and export of specialised bituminous, waterproofing and construction chemical products, moved this Court by a Notice of Motion dated May 2026 brought under Order 5 Rules 21, 22B and 29, Order 40 Rules 1(a) and 4(1) of the Civil Procedure Rules, 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act.
The Plaintiff seeks leave to effect service outside Kenya through electronic mail, injunctive relief restraining release of a consignment currently at the Port of Mombasa, a mandatory order releasing the consignment into its custody for repatriation, police assistance in implementation of the orders and costs.
The application is supported by the affidavit of Christos Evangeliou, the Plaintiff's Managing Director and Chief Executive Officer, sworn on 6th May 2026.
The Defendants were duly served but neither entered appearance nor filed any response.
2. BACKGROUND
The evidence before the Court reveals that in December 2025 the Plaintiff received enquiries for purchase of specialised construction products from persons presenting themselves as representatives of IMCD UK Limited.
The 2nd Defendant negotiated the transaction using the email address imcd_group@europe.com and represented himself as Paul Hanbury of IMCD UK Limited.
Following extensive negotiations, the Plaintiff issued Proforma Invoices PI 2226.1 to PI 2226.5 with a combined value of Euros 193,725.68.
Subsequently, the Plaintiff received Purchase Order No. IMCD1001245 and shipping instructions designating the consignee as IMCD LTD of Mukono, Uganda.
Relying upon those representations, the Plaintiff manufactured, packaged and shipped the goods through CMA CGM.
The shipment was covered under Bill of Lading No. PIR0270386 and packed in the following containers:
• TCKU6388701
• CMAU7660145
• TCKU6376721
• CMAU7326267
• TLLU4521322
Payment was agreed at sixty (60) days from the Bill of Lading date.
No payment was received.
Upon inquiry, IMCD UK Limited formally confirmed on 30th April 2026 that:
(a) it had never placed any order with the Plaintiff;
(b) it had no presence in Uganda;
(c) it had no relationship whatsoever with the Defendants; and
(d) its corporate identity had been fraudulently appropriated.
The Plaintiff thereafter discovered that the Defendants had allegedly obtained possession of the original shipping documents through fraudulent misrepresentations.
CMA CGM subsequently informed the Plaintiff that the cargo would be released to the holder of the original Bills of Lading unless restrained by court order.
The Plaintiff therefore approached this Court seeking urgent intervention.
3. ISSUES FOR DETERMINATION
The issues arising for determination are:
(i) Whether leave should be granted for service outside Kenya through electronic mail.
(ii) Whether the Plaintiff has established a prima facie case.
(iii) Whether irreparable injury has been demonstrated.
(iv) Whether the balance of convenience favours the Plaintiff.
(v) Whether the Court should grant a mandatory order releasing and repatriating the cargo.
(vi) What final orders should issue.
4. ANALYSIS AND DETERMINATION
4.1 Service Outside Kenya by Email
Order 5 Rule 22B of the Civil Procedure Rules expressly recognizes service through electronic mail where the email address is the last known and confirmed address used by the recipient.
The evidence before the Court demonstrates that the Defendants conducted the entirety of the transaction through the email addresses:
• imcd_group@europe.com
• imcd.group@europe.com
• imcd.ltd@africamail.com
These addresses constitute the Defendants' last confirmed and used electronic addresses.
Further, the property forming the subject matter of the dispute is physically situated within the jurisdiction of this Court.
Accordingly, leave for service outside Kenya through the stated email addresses is merited and is hereby granted.
4.2 Prima Facie Case
The principles governing interlocutory injunctions are settled in Giella v Cassman Brown & Co. Ltd [1973] EA 358, Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125 and Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR.
The Plaintiff's claim is founded on fraudulent misrepresentation.
The documentary evidence demonstrates that the Defendants represented themselves as affiliates and agents of IMCD UK Limited.
The evidence further shows that the Plaintiff acted on those representations, manufactured goods valued at approximately Euros 193,725.68, shipped the goods and released original shipping documents.
The Statement of Fraudulent Activity issued by IMCD UK Limited unequivocally confirms that its identity was fraudulently used.
No response has been filed challenging that evidence.
The Court is satisfied that a serious and arguable claim has been established.
The Plaintiff has therefore demonstrated a prima facie case with a probability of success.
4.3 Irreparable Injury
The consignment consists of specialised industrial products currently within the Port of Mombasa.
Absent intervention by this Court, the cargo risks release to persons alleged to have procured shipping documents through fraud.
Once released, the cargo may be removed from Kenya and dissipated beyond the reach of the Court.
The Defendants operate from foreign jurisdictions and under disputed identities.
Recovery of the cargo or its monetary value would therefore be highly uncertain.
The injury likely to be suffered by the Plaintiff cannot be adequately compensated through an award of damages.
The second limb of the Giella test is therefore satisfied.
4.4 Balance of Convenience
The balance of convenience overwhelmingly favours preservation of the cargo.
If the injunction is refused and the goods are released, the Plaintiff may permanently lose cargo worth approximately Euros 193,725.68.
Conversely, if the injunction is granted and the Defendants ultimately succeed, any delay can be compensated through appropriate orders of the Court.
The balance of convenience therefore lies in favour of the Plaintiff.
4.5 The Mandatory Order for Release and Repatriation
The Plaintiff seeks a mandatory order directing that the consignment covered under Bill of Lading No. PIR0270386 be immediately released into its custody and repatriated to the country of origin or any other destination of its choice.
The principles governing the grant of a mandatory injunction at an interlocutory stage are well settled. In Kenya Breweries Limited & Another v Washington O. Okeyo [2002] eKLR, the Court of Appeal approved the decision in Locabail International Finance Ltd v Agroexport & Others [1986] 1 ALL ER 901 and held that a mandatory injunction should only issue in exceptional and clear circumstances where the Court possesses a high degree of assurance that the order will ultimately be justified at trial.
Having carefully examined the material before it, this Court is satisfied that this matter falls within that exceptional category.
The evidence presented by the Plaintiff remains wholly uncontested. The Defendants represented themselves as agents and affiliates of IMCD UK Limited. Acting upon those representations, the Plaintiff released goods valued at approximately Euros 193,725.68 and surrendered the original shipping documents. IMCD UK Limited subsequently confirmed that the Defendants were neither its agents nor affiliates and that its corporate identity had been fraudulently appropriated.
The Defendants have not challenged these allegations. They have not entered appearance. They have not filed a defence. They have not asserted any lawful proprietary interest in the goods.
The Court is therefore satisfied that the Plaintiff has established a superior proprietary claim to the cargo.
The principle of nemo dat quod non habet applies. A party who acquires shipping documents through fraud acquires no lawful title capable of defeating the rights of the true owner.
The Court further notes that continued detention of the cargo at the Port of Mombasa serves no legitimate purpose and only exposes the cargo to escalating port charges, customs liabilities, storage charges, demurrage, detention charges and the risk of deterioration.
In the circumstances, the Court possesses the requisite high degree of assurance that the Plaintiff is entitled to immediate possession of the cargo.
Accordingly, a mandatory order for release and repatriation shall issue.
4.6 Effect of Non-Appearance by the Defendants
The Defendants were duly served as evidenced by the Affidavit of Service on record.
Despite service, the Defendants have neither entered appearance nor filed any response.
They have not disputed the allegations of fraud.
They have not challenged the authenticity of the documents exhibited by the Plaintiff.
They have not asserted ownership of the cargo.
They have not explained their failure to honour payment obligations amounting to approximately Euros 193,725.68.
The Court is entitled to draw an adverse inference from such silence.
The evidence before the Court is therefore wholly uncontested.
The Court is satisfied that no triable defence has been disclosed and that the interests of justice require immediate intervention to protect the Plaintiff's proprietary rights.
The Court further notes that no person has appeared before it asserting a lawful claim to the cargo.
Nevertheless, to safeguard any legitimate future claim that may arise, the Plaintiff shall file an undertaking to indemnify the Defendants, CMA CGM Kenya Limited, Kenya Ports Authority and any other person who may subsequently establish a lawful proprietary interest in the cargo against any loss directly arising from implementation of these orders.
5. DISPOSITION
Having carefully considered the application, the affidavit evidence, the documentary exhibits and the applicable law, the Court is satisfied that:
(a) The Plaintiff has established a prima facie case with a probability of success.
(b) The Plaintiff stands to suffer irreparable loss unless the orders sought are granted.
(c) The balance of convenience overwhelmingly favours the Plaintiff.
(d) Exceptional circumstances exist warranting the grant of a mandatory injunction.
(e) The Defendants have failed to challenge the Plaintiff's evidence despite due service.
(f) The interests of justice require immediate release of the cargo to the Plaintiff.
6. FINAL ORDERS
Accordingly, the Notice of Motion dated May 2026 is allowed and the Court makes the following orders:
1. Leave is hereby granted to the Plaintiff to effect service of process outside Kenya upon the Defendants through the following email addresses:
(a) imcd_group@europe.com ;
(b) imcd.group@europe.com ; and
(c) imcd.ltd@africamail.com .
2. A permanent order is hereby issued restraining the Defendants, CMA CGM Kenya Limited, Kenya Ports Authority, their servants, agents or assigns from taking possession of, transferring, removing, releasing, dealing with or otherwise interfering with the consignment covered under Bill of Lading No. PIR0270386 and contained in Containers Nos. TCKU6388701, CMAU7660145, TCKU6376721, CMAU7326267 and TLLU4521322.
3. The said consignment is hereby released forthwith into the custody, possession and control of the Plaintiff, Alfa Alfa Energy S.A.
4. The Plaintiff shall be at liberty to repatriate the consignment to Greece or transport it to any other destination of its choice.
5. The Officer Commanding Station (OCS), Port Police Station, Mombasa, shall supervise and ensure full compliance with these orders and provide such assistance as may be necessary for implementation.
6. The Plaintiff shall bear and settle all lawful statutory charges necessary for release and exportation of the cargo including customs duties, taxes, levies, port charges, storage charges, container detention charges, demurrage and any other lawful charges payable to the relevant authorities or service providers.
7. The Plaintiff shall, within seven (7) days of this ruling, file before this Court a written undertaking indemnifying the Defendants, CMA CGM Kenya Limited, Kenya Ports Authority and any other person who may subsequently establish a lawful proprietary claim to the cargo against any loss directly attributable to implementation of these orders.
8. Any person who subsequently establishes a lawful proprietary interest in the cargo shall be at liberty to apply to this Court for appropriate relief.
9. Costs of this application and of the suit are awarded to the Plaintiff and shall be borne jointly and severally by the Defendants.
10. In view of the final determination of all issues concerning custody, possession and release of the cargo, there remains no outstanding issue requiring further adjudication before this Court. Save for purposes of enforcement of these orders or determination of any future lawful proprietary claim, this suit is hereby marked as concluded and closed.
It is so ordered.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS ....10th.... DAY OF ......June.............. 2026.
.
HON. LADY JUSTICE W. K. MICHENI