RULING
1. The Applicant, vide a Motion on Notice dated 29th June 2026, sought the following orders from the Honourable Court:
2. That the Court be pleased to issue an early hearing date for the suit and the application.
3. That an order be issued directing Evergreen Shipping Line, the Kenya Revenue Authority, the Kenya Ports Authority, or any other government agency in control of the consignment shipped in Container No. EGSU1926522/40H/EMCPSA3064/60 and under Serial No. CIC33060955 dated 26th January 2026, to release the said consignment to the Plaintiff/Applicant, and that the consignment be reshipped to the Port of Shanghai, China, or to any other destination that the Plaintiff may choose, including the country of origin, away from Kenya.
4. The application is based on grounds inter alia :
5. That on 26th January 2026, the Plaintiff/Applicant shipped one (1) 40-foot container from Shanghai, China, through the Shipping Line, Evergreen.
6. The container contained sixty (60) cartons of plush cloth weighing 24,680 kilograms, which had been ordered by the Defendant/Respondent and were destined for Mombasa, Kenya, through the Port of Mombasa.
7. The shipment was made under Bill of Lading No. 1426000822, which had been ordered by the Defendant/Respondent on 6th January 2026, pursuant to an invoice dated 7th January 2026 in the sum of United States Dollars Eleven Thousand and Forty (USD 11,040.00).
8. The Defendants were to pay for the goods at Mombasa, that is, F.O.B. Mombasa upon landing.
9. On 18th February 2026, Container No. EGSU1926522, under Bill of Lading No. 1426000822, weighing 24,680 kilograms, landed at the Port of Mombasa and remained awaiting payment by the Plaintiff/Applicant for the goods to enable the same to be cleared for onward transmission to the Defendant/Respondent upon payment of the F.O.B. cost, which had been demanded.
10. That despite numerous telephone calls and demand letters made by the Plaintiff/Applicant requiring the Defendant/Respondent to settle the demurrage costs at the Port of Mombasa, as well as proof of cargo payments made to the Plaintiff from 15th March 2026 to date, the Defendant/Respondent has failed, refused and/or neglected to make the requisite payment.
11. As a result of the Defendant/Respondent’s failure to make payment, the containers have continued to lie in situ at the Port of Mombasa.
12. The Plaintiff/Applicant now seeks to have the containers shipped back to the Port of Origin, Shanghai, China, as the Defendant/Respondent has no claim over the said goods, having failed to pay for them since March 2026.
13. The Defendant/Respondent has neither communicated with the Plaintiff/Applicant nor made payment for the containers and the goods contained therein.
14. The Plaintiff/Applicant requires the goods to be shipped back to Shanghai, China, as the goods are owned by the Plaintiff/Applicant, being the shipper, and not by the Defendant/Respondent, who has no value in or claim to the goods having failed to make payment for them.
15. The Plaintiff/Applicant has already amended the reshipment documents to reflect the Port of Shanghai, China, as the destination, and the Defendant/Respondent has no claim over the goods.
16. In the circumstances, it is in the interest of justice that the orders sought in the application be granted.
17. The application is supported by the facts set out in the Supporting Affidavit of Xiao Chengfeng sworn on 20th June 2026, which facts are on similar lines to the grounds in support of the Motion.
18. The Supporting Affidavit contains several annexures in support of the Applicant’s case, including:
a. A copy of the Commercial Invoice;
b. A copy of the Bill of Lading;
c. Letters seeking payment;
d. A Demand Letter; and
e. A Reminder on payment of the goods.
19. Despite service of the summons, plaint and application, the defendant/respondent failed to enter an appearance or defend the application.
20. The Kenya Revenue Authority, which was served by order of the Court, also failed to respond to the application.
21. The Plaintiff/Applicant filed written submissions on the application which were a carbon copy of the application, the grounds in support thereof and submissions on the facts as set out in the supporting affidavit to the application.
22. Having considered the Applicant’s Motion on Notice dated 29th June 2026, the grounds in support thereof, the Supporting Affidavit sworn by Xiao Chengfeng on 20th June 2026 together with the annexures thereto, and noting that the application was not opposed , in my view, the issue for determination:
23. Whether the Applicant has established sufficient grounds for the grant of the orders sought in the Motion dated 29th June 2026
24. The starting point is that the application is unopposed; no replying affidavit, no grounds of opposition, or other material placed before the Court by the Defendant/Respondent challenging the facts stated by the Applicant.
25. The Applicant's case, as set out in the Motion and the Supporting Affidavit of Xiao Chengfeng sworn on 20th June 2026, is that it shipped one (1) 40-foot container from Shanghai, China, containing sixty (60) cartons of plush cloth weighing 24,680 kilograms.
26. The shipment was made through Evergreen Shipping Line under Bill of Lading No. 1426000822 and was destined for Mombasa, Kenya.
27. The Applicant further states that the goods were ordered by the Defendant/Respondent pursuant to an invoice dated 7th January 2026 for USD 11,040.00 and that payment was to be made at Mombasa upon landing.
28. The Applicant's position is that, notwithstanding numerous telephone calls, letters seeking payment, demand letters and reminders, the Defendant/Respondent failed to make payment from 15th March 2026 to date.
29. The evidence placed before the Court further indicates that the container arrived at the Port of Mombasa on 18th February 2026 and has remained there, thereby attracting demurrage and related costs.
30. In the absence of any evidence controverting those averments, the Applicant's factual position remains unchallenged.
31. The Applicant has supported its case with documentary evidence, including the Commercial Invoice, Bill of Lading, correspondence seeking payment, Demand Letter, and a reminder regarding payment for the goods.
32. The documentary evidence is consistent with and supports the factual assertions made in the Supporting Affidavit.
33. The Applicant has placed before the Court sufficient material to demonstrate that the consignment was shipped from Shanghai, China, was destined for Mombasa, Kenya, and that the Defendant/Respondent has not made the payment allegedly due for the goods.
34. The Applicant seeks an order directing Evergreen Shipping Line, the Kenya Revenue Authority, the Kenya Ports Authority or any other government agency in control of the consignment to release the goods to the Applicant.
35. The Applicant's case is that it remains the owner of the goods, being the shipper, and that the Defendant/Respondent has not acquired any beneficial or proprietary interest in the goods because it has failed to pay for them.
36. There is no evidence before the Court from the Defendant/Respondent asserting ownership of the goods, disputing the Applicant's claim to ownership, or demonstrating that it has paid the purchase price or otherwise acquired an interest in the consignment.
37. In the circumstances, and particularly in view of the absence of any opposition, I am of the view that the Applicant has established a sufficient basis for the Court to grant appropriate orders facilitating the release of the consignment to the Applicant, subject, where applicable, to compliance with any statutory requirements, customs procedures, port requirements, shipping requirements and/or payment of any lawful charges attaching to the goods.
38. It is not lost on the court that the order being sought is in the nature of a mandatory injunction, as it seeks an order for the release of the consignment at an interlocutory stage of the proceedings. The position in Kenya is that such injunctions, which may effectively resolve an issue, should remain an exceptional remedy granted only where justice plainly requires immediate intervention.
39. The Court of Appeal in Kenya Breweries Limited & another v Washington O. Okeyo [2002] KECA 284 (KLR) held as follows:
The test whether to grant a mandatory injunction or not is correctly stated in Vol. 24 Halsbury’s Laws of England 4th Edn. para 948, which reads:
“A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks it ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempted to steal a march on the plaintiff …….. a mandatory injunction will be granted on an interlocutory application”.
40. Also in Locabail International Finance Ltd. V. Agroexport and others [1986] 1 ALL ER 901 at pg. 901 it was stated:
“A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be easily remedied or where the defendant had attempted to steal a march on the plaintiff. Moreover, before granting a mandatory interlocutory injunction the court had to feel a high degree of assurance that at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction.”
41. I believe the present application meets the threshold, as the case is clear; the justice of the matter demands that the goods should not be left to accumulate demurrage charges that would effectively diminish the commercial value of the goods to the eventual successful party, and it also appears at this stage that the defendant/respondent is not interested in the goods.
42. The Applicant further seeks an order allowing the consignment to be reshipped to Shanghai, China, or to any other destination that it may choose, including the country of origin.
43. The basis for this prayer is that the Defendant/Respondent has failed to pay for the goods since March 2026 and has neither communicated with the Applicant nor asserted any claim over the goods. The Applicant has also stated that it has already amended the reshipment documents to the Port of Shanghai, China.
44. The continued detention of the consignment at the Port of Mombasa will only occasion further demurrage and other charges.
45. It would be contrary to the interests of justice and the interests of the party asserting ownership of the goods to have the consignment remain indefinitely at the Port of Mombasa in circumstances where the intended purchaser has failed to make payment and has not opposed the application.
46. The Applicant has demonstrated that its preferred destination is the Port of Shanghai, China, being the port of origin.
47. In the absence of any opposition or competing claim to the goods, there appears to be no basis on the material before the Court for requiring the Applicant to continue holding the goods at the Port of Mombasa.
48. The Defendant/Respondent has had the opportunity to contest the Applicant's allegations but has not done so; the Applicant’s averments remain uncontroverted, and there is no competing claim placed before the Court in respect of the consignment. 2
49. The Applicant has made out a case for issuance of the order sought, but the release and reshipment should be subject to compliance with all applicable statutory and administrative requirements.
50. The Applicant has also sought an early hearing date for the suit and application. Taking into account that the consignment has remained at the Port of Mombasa since 18th February 2026 and that the continued retention of the goods is likely to attract further demurrage and other charges, there appears to be sufficient justification for granting the matter an early hearing date.
51. The request for an early hearing date is therefore, in my view, reasonable and consistent with the overriding objective of facilitating the just, expeditious and proportionate resolution of disputes.
The upshot is that the application succeeds and I order as follows;
A. That an order be and is hereby issued directing Evergreen Shipping Line, the Kenya Revenue Authority, the Kenya Ports Authority, or any other government agency in control of the consignment shipped in Container No. EGSU1926522/40H/EMCPSA3064/60 and under Serial No. CIC33060955 dated 26th January 2026, to release the said consignment to the Plaintiff/Applicant, and that the consignment be reshipped to the Port of Shanghai, China, or to any other destination that the Plaintiff may choose, including the country of origin, away from Kenya subject to subject to compliance with applicable statutory and administrative requirements.
B. The parties shall comply with all pre-trial requirements as provided in the Civil Procedure Rules, and the case is to be mentioned for pre-trial case conference before the Deputy Registrar on 22 nd October 2026.
C. The applicant shall have costs of the application.
Dated, signed and delivered in Mombasa this 20 th day of August 2026.
Delivered in the presence of:
Francis C/A
Kahuthu for the Applicant
N/A for Respondent
Page 2 of 2
1. The Applicant, vide a Motion on Notice dated 29th June 2026, sought the following orders from the Honourable Court:
2. That the Court be pleased to issue an early hearing date for the suit and the application.
3. That an order be issued directing Evergreen Shipping Line, the Kenya Revenue Authority, the Kenya Ports Authority, or any other government agency in control of the consignment shipped in Container No. EGSU1926522/40H/EMCPSA3064/60 and under Serial No. CIC33060955 dated 26th January 2026, to release the said consignment to the Plaintiff/Applicant, and that the consignment be reshipped to the Port of Shanghai, China, or to any other destination that the Plaintiff may choose, including the country of origin, away from Kenya.
4. The application is based on grounds inter alia :
5. That on 26th January 2026, the Plaintiff/Applicant shipped one (1) 40-foot container from Shanghai, China, through the Shipping Line, Evergreen.
6. The container contained sixty (60) cartons of plush cloth weighing 24,680 kilograms, which had been ordered by the Defendant/Respondent and were destined for Mombasa, Kenya, through the Port of Mombasa.
7. The shipment was made under Bill of Lading No. 1426000822, which had been ordered by the Defendant/Respondent on 6th January 2026, pursuant to an invoice dated 7th January 2026 in the sum of United States Dollars Eleven Thousand and Forty (USD 11,040.00).
8. The Defendants were to pay for the goods at Mombasa, that is, F.O.B. Mombasa upon landing.
9. On 18th February 2026, Container No. EGSU1926522, under Bill of Lading No. 1426000822, weighing 24,680 kilograms, landed at the Port of Mombasa and remained awaiting payment by the Plaintiff/Applicant for the goods to enable the same to be cleared for onward transmission to the Defendant/Respondent upon payment of the F.O.B. cost, which had been demanded.
10. That despite numerous telephone calls and demand letters made by the Plaintiff/Applicant requiring the Defendant/Respondent to settle the demurrage costs at the Port of Mombasa, as well as proof of cargo payments made to the Plaintiff from 15th March 2026 to date, the Defendant/Respondent has failed, refused and/or neglected to make the requisite payment.
11. As a result of the Defendant/Respondent’s failure to make payment, the containers have continued to lie in situ at the Port of Mombasa.
12. The Plaintiff/Applicant now seeks to have the containers shipped back to the Port of Origin, Shanghai, China, as the Defendant/Respondent has no claim over the said goods, having failed to pay for them since March 2026.
13. The Defendant/Respondent has neither communicated with the Plaintiff/Applicant nor made payment for the containers and the goods contained therein.
14. The Plaintiff/Applicant requires the goods to be shipped back to Shanghai, China, as the goods are owned by the Plaintiff/Applicant, being the shipper, and not by the Defendant/Respondent, who has no value in or claim to the goods having failed to make payment for them.
15. The Plaintiff/Applicant has already amended the reshipment documents to reflect the Port of Shanghai, China, as the destination, and the Defendant/Respondent has no claim over the goods.
16. In the circumstances, it is in the interest of justice that the orders sought in the application be granted.
17. The application is supported by the facts set out in the Supporting Affidavit of Xiao Chengfeng sworn on 20th June 2026, which facts are on similar lines to the grounds in support of the Motion.
18. The Supporting Affidavit contains several annexures in support of the Applicant’s case, including:
a. A copy of the Commercial Invoice;
b. A copy of the Bill of Lading;
c. Letters seeking payment;
d. A Demand Letter; and
e. A Reminder on payment of the goods.
19. Despite service of the summons, plaint and application, the defendant/respondent failed to enter an appearance or defend the application.
20. The Kenya Revenue Authority, which was served by order of the Court, also failed to respond to the application.
21. The Plaintiff/Applicant filed written submissions on the application which were a carbon copy of the application, the grounds in support thereof and submissions on the facts as set out in the supporting affidavit to the application.
22. Having considered the Applicant’s Motion on Notice dated 29th June 2026, the grounds in support thereof, the Supporting Affidavit sworn by Xiao Chengfeng on 20th June 2026 together with the annexures thereto, and noting that the application was not opposed , in my view, the issue for determination:
23. Whether the Applicant has established sufficient grounds for the grant of the orders sought in the Motion dated 29th June 2026
24. The starting point is that the application is unopposed; no replying affidavit, no grounds of opposition, or other material placed before the Court by the Defendant/Respondent challenging the facts stated by the Applicant.
25. The Applicant's case, as set out in the Motion and the Supporting Affidavit of Xiao Chengfeng sworn on 20th June 2026, is that it shipped one (1) 40-foot container from Shanghai, China, containing sixty (60) cartons of plush cloth weighing 24,680 kilograms.
26. The shipment was made through Evergreen Shipping Line under Bill of Lading No. 1426000822 and was destined for Mombasa, Kenya.
27. The Applicant further states that the goods were ordered by the Defendant/Respondent pursuant to an invoice dated 7th January 2026 for USD 11,040.00 and that payment was to be made at Mombasa upon landing.
28. The Applicant's position is that, notwithstanding numerous telephone calls, letters seeking payment, demand letters and reminders, the Defendant/Respondent failed to make payment from 15th March 2026 to date.
29. The evidence placed before the Court further indicates that the container arrived at the Port of Mombasa on 18th February 2026 and has remained there, thereby attracting demurrage and related costs.
30. In the absence of any evidence controverting those averments, the Applicant's factual position remains unchallenged.
31. The Applicant has supported its case with documentary evidence, including the Commercial Invoice, Bill of Lading, correspondence seeking payment, Demand Letter, and a reminder regarding payment for the goods.
32. The documentary evidence is consistent with and supports the factual assertions made in the Supporting Affidavit.
33. The Applicant has placed before the Court sufficient material to demonstrate that the consignment was shipped from Shanghai, China, was destined for Mombasa, Kenya, and that the Defendant/Respondent has not made the payment allegedly due for the goods.
34. The Applicant seeks an order directing Evergreen Shipping Line, the Kenya Revenue Authority, the Kenya Ports Authority or any other government agency in control of the consignment to release the goods to the Applicant.
35. The Applicant's case is that it remains the owner of the goods, being the shipper, and that the Defendant/Respondent has not acquired any beneficial or proprietary interest in the goods because it has failed to pay for them.
36. There is no evidence before the Court from the Defendant/Respondent asserting ownership of the goods, disputing the Applicant's claim to ownership, or demonstrating that it has paid the purchase price or otherwise acquired an interest in the consignment.
37. In the circumstances, and particularly in view of the absence of any opposition, I am of the view that the Applicant has established a sufficient basis for the Court to grant appropriate orders facilitating the release of the consignment to the Applicant, subject, where applicable, to compliance with any statutory requirements, customs procedures, port requirements, shipping requirements and/or payment of any lawful charges attaching to the goods.
38. It is not lost on the court that the order being sought is in the nature of a mandatory injunction, as it seeks an order for the release of the consignment at an interlocutory stage of the proceedings. The position in Kenya is that such injunctions, which may effectively resolve an issue, should remain an exceptional remedy granted only where justice plainly requires immediate intervention.
39. The Court of Appeal in Kenya Breweries Limited & another v Washington O. Okeyo [2002] KECA 284 (KLR) held as follows:
The test whether to grant a mandatory injunction or not is correctly stated in Vol. 24 Halsbury’s Laws of England 4th Edn. para 948, which reads:
“A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks it ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempted to steal a march on the plaintiff …….. a mandatory injunction will be granted on an interlocutory application”.
40. Also in Locabail International Finance Ltd. V. Agroexport and others [1986] 1 ALL ER 901 at pg. 901 it was stated:
“A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be easily remedied or where the defendant had attempted to steal a march on the plaintiff. Moreover, before granting a mandatory interlocutory injunction the court had to feel a high degree of assurance that at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction.”
41. I believe the present application meets the threshold, as the case is clear; the justice of the matter demands that the goods should not be left to accumulate demurrage charges that would effectively diminish the commercial value of the goods to the eventual successful party, and it also appears at this stage that the defendant/respondent is not interested in the goods.
42. The Applicant further seeks an order allowing the consignment to be reshipped to Shanghai, China, or to any other destination that it may choose, including the country of origin.
43. The basis for this prayer is that the Defendant/Respondent has failed to pay for the goods since March 2026 and has neither communicated with the Applicant nor asserted any claim over the goods. The Applicant has also stated that it has already amended the reshipment documents to the Port of Shanghai, China.
44. The continued detention of the consignment at the Port of Mombasa will only occasion further demurrage and other charges.
45. It would be contrary to the interests of justice and the interests of the party asserting ownership of the goods to have the consignment remain indefinitely at the Port of Mombasa in circumstances where the intended purchaser has failed to make payment and has not opposed the application.
46. The Applicant has demonstrated that its preferred destination is the Port of Shanghai, China, being the port of origin.
47. In the absence of any opposition or competing claim to the goods, there appears to be no basis on the material before the Court for requiring the Applicant to continue holding the goods at the Port of Mombasa.
48. The Defendant/Respondent has had the opportunity to contest the Applicant's allegations but has not done so; the Applicant’s averments remain uncontroverted, and there is no competing claim placed before the Court in respect of the consignment. 2
49. The Applicant has made out a case for issuance of the order sought, but the release and reshipment should be subject to compliance with all applicable statutory and administrative requirements.
50. The Applicant has also sought an early hearing date for the suit and application. Taking into account that the consignment has remained at the Port of Mombasa since 18th February 2026 and that the continued retention of the goods is likely to attract further demurrage and other charges, there appears to be sufficient justification for granting the matter an early hearing date.
51. The request for an early hearing date is therefore, in my view, reasonable and consistent with the overriding objective of facilitating the just, expeditious and proportionate resolution of disputes.
The upshot is that the application succeeds and I order as follows;
A. That an order be and is hereby issued directing Evergreen Shipping Line, the Kenya Revenue Authority, the Kenya Ports Authority, or any other government agency in control of the consignment shipped in Container No. EGSU1926522/40H/EMCPSA3064/60 and under Serial No. CIC33060955 dated 26th January 2026, to release the said consignment to the Plaintiff/Applicant, and that the consignment be reshipped to the Port of Shanghai, China, or to any other destination that the Plaintiff may choose, including the country of origin, away from Kenya subject to subject to compliance with applicable statutory and administrative requirements.
B. The parties shall comply with all pre-trial requirements as provided in the Civil Procedure Rules, and the case is to be mentioned for pre-trial case conference before the Deputy Registrar on 22 nd October 2026.
C. The applicant shall have costs of the application.
Dated, signed and delivered in Mombasa this 20 th day of August 2026.
Delivered in the presence of:
Francis C/A
Kahuthu for the Applicant
N/A for Respondent
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