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The Plaintiff, a limited liability company incorporated under the laws of India, engages in the manufacture of aluminium conductors and other power distribution solutions in the field of electrical transmission and distribution.
The Plaintiff’s claim arises from a Purchase Order dated 17th June 2025, issued by the 1st Defendant purportedly on behalf of the 2nd Defendant, for the supply of aluminium alloy conductors valued at USD 202,400, delivered on CIF terms to the Port of Mombasa.
Upon shipment, the Plaintiff’s bankers, Bank of India – Kolkata Branch, forwarded the original Bill of Lading to the 2nd Defendant’s alleged bankers, UBS Group AG – Switzerland, for payment under the agreed Cash Against Documents (CAD) terms.
The goods arrived at the Port of Mombasa on 20th September 2025 but to date, no payment has been made to the Plaintiff. The original Bill of Lading had already been dispatched to the purported bank address, which was later discovered to be fictitious.
Investigations revealed that the 1st and 3rd Defendants, acting jointly, had fraudulently misrepresented themselves as agents of the 2nd Defendant and had used a deceptive email domain “@westernpacificient.com” to perpetrate the fraud. The 3rd Defendant was also found not to be a registered company in Uganda.
The 4th and 5th Defendants were the shipping agent and principal carrier respectively, while the 6th Defendant is the Kenya Ports Authority, the statutory custodian of goods landed at the Port of Mombasa.
The Plaintiff now seeks, inter alia, declarations of ownership, injunctions restraining release of the goods to the fraudulent parties, and an order for release of the goods to itself.
The Defendants were duly served with Summons but none entered appearance or filed any defence.
Order 19 Rule 1 of the Civil Procedure Rules states as follows-
“Any court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the court thinks reasonable:
Provided that, where it appears to the court that either party bona fides desires the production of a witness for cross-examination and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit.”
Firstly, this court relies on the above provisions in the determination of this case by way of affidavit evidence as the defendant neither entered appearance nor filed a statement of defense
11. Secondly, the consignment of goods stacked the containers are accruing demurrage at the Port of Mombasa on a daily basis, which cost will befall the plaintiff. Thirdly, courts are under an obligation to expeditiously deal with cases of this nature where goods have been ordered for through fraudulent means and costs have been incurred for shipment, which ultimately will be paid for by the plaintiff as the shipper of the goods. Fourthly, the plaintiff stands to suffer the blow of paying the costs which will be incurred for re-shipment.
12. The Civil Procedure Act in Section 1A provides the overriding objectives of the Civil Procedure Act. It states as follows-
“(1) The overriding objective of this act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.
(2) The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1).
(3) A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that eff ect, to participate in the process of the Court and to comply with the directions and orders of the Court.”
13. Section 1B places an obligation on courts to purposively work towards achievement of the objective specified in Section 1A of the Civil Procedure Act. Section 1B states that the Court: -
“Shall handle all matters presented before it for the purpose of attaining the following aims –
a. The just determination of the proceedings;
b. The efficient disposal of the business of the Court ;
c. The efficient use of the available judicial and administrative resources;
. The timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties ; and
e. The use of suitable technology”. (emphasis added).
. When determining a case whose circumstances are almost similar to this one, Judge J.A Makau in Rotem Kimyevi Maddeler Sanayi ve Ticaret A.S v Sunland Chemicals Uganda Limited proceeded to hear the said case based on affidavit evidence under the provisions of Order 19 Rule 1 of the Civil Procedure Rules. So, I am not sailing in uncharted waters
14. In considering if the plaintiff still has good title to the consignment of goods after issuing a bill of lading in the name of the defendant, it is necessary to look into the value attached to the said document. Lexis Navigator Dictionary states as follows in regard to bills of lading-
“A Bill of lading is a receipt signed by the person or his agent who contracts to carry certain specific goods, and setting out the terms of the contract of carriage under which the goods have been delivered to and received by the ship. The signed bill of lading is handed over to the shipper, who may either hold onto it or transfer it to a third person. During the voyage and transit, the bill of lading under the law merchant is considered the symbol of the goods described in it, and the endorsement and delivery of the bill of lading operates as a symbolic delivery of the goods. This person named in the Bill of lading as the person to whom the delivery of goods is to be made on arrival at the destination, in which case he is known as the consignee; if he is not named in the Bill of lading, he is usually known as the holder or endorsee of the Bill of lading. The holder of the bill of lading is entitled as against the shipper to have the goods delivered to him to the exclusion of other persons. It is thus the same position as if the goods were delivered to him or in his physical possession, subject to the qualification that he takes the risk of non-delivery of the goods by the ship owner, and that, in order to obtain actual delivery of the goods from the ship owner, he may be obliged to discharge the ship owner’s lien for freight. A bill of lading issued by the ship owner’s agent in the absence of any contract of carriage is a nullity.” (emphasis added). In instances like the present one where the plaintiff has proved that the consignment of goods was obtained fraudulently, it is evident that the bill of lading cannot pass good tile to the defendant for the said consignment
15. Title to goods obtained through fraud does not pass to the fraudster. The
Plaintiff therefore remains the lawful owner of the cargo.
See:
Junca Gelatines S.L v Hilton Ingredients (U) Ltd [2021] KEHC 9363;
TIB Chemicals AG v MSC S.A. & 2 others [2021] KEHC 9292; and
Oman Formaldehyde Chemical Co. v Nilands Ltd Africa; KRA & 3 others
[2023] KEHC 27234.
Determination
From the uncontroverted evidence, it is clear that the 1st and 3rd Defendants fraudulently procured the Purchase Order by impersonating the 2nd Defendant and using falsified credentials and addresses. The 2nd Defendant was not party to the transaction, and there is no evidence that it ever authorised the 1st Defendant to act on its behalf.
The court is persuaded that the Plaintiff was an innocent party who shipped goods under a fraudulent misrepresentation. The title in the goods therefore never passed to the 1st, 2nd, or 3rd Defendants, and remains vested in the Plaintiff.
The 4th, 5th, and 6th Defendants are properly joined, as they are custodians of the goods and responsible for their release or retention pending court orders.
In the absence of payment, and upon proof of fraud, the Plaintiff is entitled to protection of its proprietary interests and to the recovery of its goods.
Accordingly, I find that the Plaintiff has proved its case on a balance of probabilities.
Orders
A declaration is hereby issued that the Purchase Order dated 17th June 2025 was procured through fraud and is void ab initio.
A declaration is hereby issued that the Plaintiff is the lawful owner of the goods the subject of these proceedings.
A permanent injunction is hereby issued restraining the 1st, 2nd, and 3rd Defendants, whether by themselves, their agents, or assigns, from claiming, receiving, obtaining, or otherwise taking possession of the said goods.
A permanent injunction is hereby issued restraining the 4th, 5th, and 6th Defendants, their agents, servants, or assigns, from releasing the said goods to the 1st, 2nd, or 3rd Defendants, or to any person claiming under them.
An order is hereby made directing the 4th, 5th, and 6th Defendants to release the goods to the Plaintiff or its duly authorised representative , subject to compliance with all port and regulatory requirements , and upon the Plaintiff furnishing an undertaking to indemnify the 1st and 2nd Defendants should they lawfully appear and establish any proprietary claim.
Ordinarily costs follow the suit but, in this case, it would not be practical to execute against the 1 st and 3 rd defendants the faceless fraudsters. The other defendants were joined a matter cause as necessary parties.
The Plaintiff may of course pursue the actual culprits for damages and costs if the investigations yield fruit.
It is so ordered.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 30 DAY OF OCTOBER, 2025
HON. JUSTICE WENDY K. MICHENI
JUDGE
IN THE PRESENCE OF MR MURITHI FOR THE PLAINTIFF
NO APPEARANCE BY ALL THE DEFENDANTS
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The Plaintiff, a limited liability company incorporated under the laws of India, engages in the manufacture of aluminium conductors and other power distribution solutions in the field of electrical transmission and distribution.
The Plaintiff’s claim arises from a Purchase Order dated 17th June 2025, issued by the 1st Defendant purportedly on behalf of the 2nd Defendant, for the supply of aluminium alloy conductors valued at USD 202,400, delivered on CIF terms to the Port of Mombasa.
Upon shipment, the Plaintiff’s bankers, Bank of India – Kolkata Branch, forwarded the original Bill of Lading to the 2nd Defendant’s alleged bankers, UBS Group AG – Switzerland, for payment under the agreed Cash Against Documents (CAD) terms.
The goods arrived at the Port of Mombasa on 20th September 2025 but to date, no payment has been made to the Plaintiff. The original Bill of Lading had already been dispatched to the purported bank address, which was later discovered to be fictitious.
Investigations revealed that the 1st and 3rd Defendants, acting jointly, had fraudulently misrepresented themselves as agents of the 2nd Defendant and had used a deceptive email domain “@westernpacificient.com” to perpetrate the fraud. The 3rd Defendant was also found not to be a registered company in Uganda.
The 4th and 5th Defendants were the shipping agent and principal carrier respectively, while the 6th Defendant is the Kenya Ports Authority, the statutory custodian of goods landed at the Port of Mombasa.
The Plaintiff now seeks, inter alia, declarations of ownership, injunctions restraining release of the goods to the fraudulent parties, and an order for release of the goods to itself.
The Defendants were duly served with Summons but none entered appearance or filed any defence.
Order 19 Rule 1 of the Civil Procedure Rules states as follows-
“Any court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the court thinks reasonable:
Provided that, where it appears to the court that either party bona fides desires the production of a witness for cross-examination and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit.”
Firstly, this court relies on the above provisions in the determination of this case by way of affidavit evidence as the defendant neither entered appearance nor filed a statement of defense
11. Secondly, the consignment of goods stacked the containers are accruing demurrage at the Port of Mombasa on a daily basis, which cost will befall the plaintiff. Thirdly, courts are under an obligation to expeditiously deal with cases of this nature where goods have been ordered for through fraudulent means and costs have been incurred for shipment, which ultimately will be paid for by the plaintiff as the shipper of the goods. Fourthly, the plaintiff stands to suffer the blow of paying the costs which will be incurred for re-shipment.
12. The Civil Procedure Act in Section 1A provides the overriding objectives of the Civil Procedure Act. It states as follows-
“(1) The overriding objective of this act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.
(2) The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1).
(3) A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that eff ect, to participate in the process of the Court and to comply with the directions and orders of the Court.”
13. Section 1B places an obligation on courts to purposively work towards achievement of the objective specified in Section 1A of the Civil Procedure Act. Section 1B states that the Court: -
“Shall handle all matters presented before it for the purpose of attaining the following aims –
a. The just determination of the proceedings;
b. The efficient disposal of the business of the Court ;
c. The efficient use of the available judicial and administrative resources;
. The timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties ; and
e. The use of suitable technology”. (emphasis added).
. When determining a case whose circumstances are almost similar to this one, Judge J.A Makau in Rotem Kimyevi Maddeler Sanayi ve Ticaret A.S v Sunland Chemicals Uganda Limited proceeded to hear the said case based on affidavit evidence under the provisions of Order 19 Rule 1 of the Civil Procedure Rules. So, I am not sailing in uncharted waters
14. In considering if the plaintiff still has good title to the consignment of goods after issuing a bill of lading in the name of the defendant, it is necessary to look into the value attached to the said document. Lexis Navigator Dictionary states as follows in regard to bills of lading-
“A Bill of lading is a receipt signed by the person or his agent who contracts to carry certain specific goods, and setting out the terms of the contract of carriage under which the goods have been delivered to and received by the ship. The signed bill of lading is handed over to the shipper, who may either hold onto it or transfer it to a third person. During the voyage and transit, the bill of lading under the law merchant is considered the symbol of the goods described in it, and the endorsement and delivery of the bill of lading operates as a symbolic delivery of the goods. This person named in the Bill of lading as the person to whom the delivery of goods is to be made on arrival at the destination, in which case he is known as the consignee; if he is not named in the Bill of lading, he is usually known as the holder or endorsee of the Bill of lading. The holder of the bill of lading is entitled as against the shipper to have the goods delivered to him to the exclusion of other persons. It is thus the same position as if the goods were delivered to him or in his physical possession, subject to the qualification that he takes the risk of non-delivery of the goods by the ship owner, and that, in order to obtain actual delivery of the goods from the ship owner, he may be obliged to discharge the ship owner’s lien for freight. A bill of lading issued by the ship owner’s agent in the absence of any contract of carriage is a nullity.” (emphasis added). In instances like the present one where the plaintiff has proved that the consignment of goods was obtained fraudulently, it is evident that the bill of lading cannot pass good tile to the defendant for the said consignment
15. Title to goods obtained through fraud does not pass to the fraudster. The
Plaintiff therefore remains the lawful owner of the cargo.
See:
Junca Gelatines S.L v Hilton Ingredients (U) Ltd [2021] KEHC 9363;
TIB Chemicals AG v MSC S.A. & 2 others [2021] KEHC 9292; and
Oman Formaldehyde Chemical Co. v Nilands Ltd Africa; KRA & 3 others
[2023] KEHC 27234.
Determination
From the uncontroverted evidence, it is clear that the 1st and 3rd Defendants fraudulently procured the Purchase Order by impersonating the 2nd Defendant and using falsified credentials and addresses. The 2nd Defendant was not party to the transaction, and there is no evidence that it ever authorised the 1st Defendant to act on its behalf.
The court is persuaded that the Plaintiff was an innocent party who shipped goods under a fraudulent misrepresentation. The title in the goods therefore never passed to the 1st, 2nd, or 3rd Defendants, and remains vested in the Plaintiff.
The 4th, 5th, and 6th Defendants are properly joined, as they are custodians of the goods and responsible for their release or retention pending court orders.
In the absence of payment, and upon proof of fraud, the Plaintiff is entitled to protection of its proprietary interests and to the recovery of its goods.
Accordingly, I find that the Plaintiff has proved its case on a balance of probabilities.
Orders
A declaration is hereby issued that the Purchase Order dated 17th June 2025 was procured through fraud and is void ab initio.
A declaration is hereby issued that the Plaintiff is the lawful owner of the goods the subject of these proceedings.
A permanent injunction is hereby issued restraining the 1st, 2nd, and 3rd Defendants, whether by themselves, their agents, or assigns, from claiming, receiving, obtaining, or otherwise taking possession of the said goods.
A permanent injunction is hereby issued restraining the 4th, 5th, and 6th Defendants, their agents, servants, or assigns, from releasing the said goods to the 1st, 2nd, or 3rd Defendants, or to any person claiming under them.
An order is hereby made directing the 4th, 5th, and 6th Defendants to release the goods to the Plaintiff or its duly authorised representative , subject to compliance with all port and regulatory requirements , and upon the Plaintiff furnishing an undertaking to indemnify the 1st and 2nd Defendants should they lawfully appear and establish any proprietary claim.
Ordinarily costs follow the suit but, in this case, it would not be practical to execute against the 1 st and 3 rd defendants the faceless fraudsters. The other defendants were joined a matter cause as necessary parties.
The Plaintiff may of course pursue the actual culprits for damages and costs if the investigations yield fruit.
It is so ordered.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 30 DAY OF OCTOBER, 2025
HON. JUSTICE WENDY K. MICHENI
JUDGE
IN THE PRESENCE OF MR MURITHI FOR THE PLAINTIFF
NO APPEARANCE BY ALL THE DEFENDANTS
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