RULING
1. The application before this Court is dated 24th October 2025 and seeks the following orders:
1. Spent.
2. That pending the hearing and determination of this application, this Honourable Court be pleased to issue an order directing the immediate release of Container No. CMAU5577617 under Bill of Lading No. CE10289956 held by the Defendant.
3. That the Plaintiff undertakes to pay the legitimate and lawfully assessed charge of Kshs. 320,984 if they dispute the amount of Kshs. 500,000 allegedly paid and acknowledged by the Defendant’s officer, one Mr. Henry Were.
4. That the OCS Port Police Station and the Chief Manager CFS Operations ensure compliance with the release order.
5. That costs of this application be provided for.
2. The application is supported by the affidavit of Nicholas Kitonga Mwilu, a director of the Plaintiff. He depones that the suit concerns the alleged unlawful detention and conversion of goods contained in Container No. CMAU5577617 under Bill of Lading No. CE10289956. The goods comprise four tractors imported through the Port of Mombasa.
3. It is deponed that the container arrived on 3rd September 2023 and was placed at the Defendant’s Container Freight Station (CFS) for customs clearance under Import Entry No. 24MBAIM401732780. The Plaintiff attributes delay in clearance to unavoidable natural calamities and relies on section 34(1) of the East African Community Customs Management Act, 2004 (EACCMA). It contends that after lapse of the statutory period, the goods were deemed deposited in a customs warehouse under the control of the Interested Party pursuant to section 34(5) of EACCMA.
4. The Plaintiff further avers that it applied for waiver of accrued warehouse rent under Regulation 85 of the East African Community Customs Management Regulations (EACCMR), and that the Interested Party waived Kshs. 478,616. It asserts that pursuant to section 42(8) of EACCMA and Regulation 86 of EACCMR, the goods were authorized for release within thirty (30) days.
5. The Plaintiff contends that during the said window, it requested the Defendant to waive storage charges. Upon failure by the Defendant to respond, it allegedly remitted Kshs. 500,000 to one Mr. Henry Were, said to be the Defendant’s officer, as full settlement of lawful charges. Despite this, the Defendant allegedly continued to detain the container and subsequently issued an invoice dated 17th December 2024 demanding USD 26,349.60, inclusive of storage charges of USD 21,950 for 439 days.
6. The Plaintiff maintains that under section 34(4) of EACCMA, goods not cleared within 21 days must be transferred to a customs warehouse and that storage fees thereafter become warehouse rent payable exclusively to the Interested Party. It therefore asserts that the Defendant lacks any lawful basis to levy storage charges.
7. The Plaintiff quantifies alleged losses at Kshs. 51,300,736.38, comprising loan interest, loss of business opportunities, and foregone sales. It contends that the Defendant has no statutory lien and that continued detention violates Article 47 of the Constitution.
8. The Defendant opposes the application through the affidavit of Farhad Hassan Noor sworn on 19th November 2025. It avers that the consignee named in the Bill of Lading is Equity Bank Kenya Limited and that as a document of title, the Bill of Lading confers rights upon the named consignee. The Plaintiff has not demonstrated endorsement or transfer of title.
9. The Defendant further states that it was appointed as a transit shed and customs warehouse under Gazette Notice No. 1540 dated 5th March 2014. It avers that customs warehouse rent is collected by KRA, and that the impugned charges arise under the Kenya Ports Authority Act and the applicable CFS Agreement, which are distinct from EACCMA provisions.
10. The Defendant denies the existence of any employee known as Henry Were and denies receipt of the alleged payment. It maintains that payments are only received through formal banking channels. It also states that the waiver period ran from 2nd October 2024 to 2nd November 2024 and lapsed.
11. The Plaintiff filed a supplementary affidavit asserting that Equity Bank was merely a financier and not the owner of the cargo, and that ownership is evidenced by duty payment receipts and delivery orders.
12. The Interested Party did not file a response.
13. The issues for determination are:
a) Whether the Plaintiff has met the threshold for grant of an interlocutory injunction;b) Who should bear the costs of the application.
Analysis
14. The application is brought under Order 40 Rule 1 of the Civil Procedure Rules. The principles governing interlocutory injunctions are settled in Giella v Cassman Brown & Co. Ltd (1973) EA 358 , where the Court of Appeal held that an applicant must establish:
• A prima facie case with a probability of success;
• That irreparable injury would result if the injunction is not granted;
• If in doubt, the application is determined on a balance of convenience.
15. The meaning of a prima facie case was elaborated in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 123 , as a case which on the material presented shows an apparent infringement of a right requiring rebuttal.
16. In Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR , the Court of Appeal emphasized that these conditions are sequential and must each be satisfied before moving to the next.
17. The present application, though framed as prohibitory, effectively seeks a mandatory order compelling release of the container. The threshold for mandatory injunctions at an interlocutory stage is higher.
18. In Locabail International Finance Ltd v Agro-Export & Another [1986] 1 ALL ER 901 , the Court held that a mandatory injunction will only be granted in special circumstances and in clear cases.
19. The Court of Appeal in Kenya Breweries Ltd & Another v Washington O. Okeyo [2002] 1 EA 109 adopted this position and held that such orders are granted sparingly and only in clear and straightforward cases.
20. Similarly, in Nation Media Group & 2 Others v John Harun Mwau [2014] eKLR , the Court reiterated that mandatory injunctions at interlocutory stage are exceptional remedies.
21. In the present matter, there are substantial and contested issues concerning:
• Legal ownership of the goods under the Bill of Lading;
• The legal effect of naming Equity Bank as consignee;
• The statutory and contractual framework governing storage charges;
• The alleged payment of Kshs. 500,000;
• The scope and duration of the waiver granted by the Interested Party.
22. These issues require full evidentiary interrogation at trial. This is not a plain and obvious case warranting a mandatory order at this stage.
23. On irreparable harm, the alleged losses are quantifiable and compensable by damages. As stated in Nguruman (supra) , where damages are an adequate remedy, an injunction should not ordinarily issue.
24. The balance of convenience does not favour release of the goods at this interlocutory stage, as doing so would effectively determine substantive issues prematurely.
25. The Court further notes with concern that the Applicant cited authorities in submissions which, upon scrutiny, are either inaccurately cited or non-existent in Kenyan jurisprudence. Counsel owe the Court a duty of candour and accuracy. Reliance on non-existent or unverifiable case law is a serious professional lapse and undermines the integrity of judicial proceedings. The Court has therefore relied only on established and verifiable authorities.
26. The Plaintiff has failed to establish a prima facie case, irreparable harm, or special circumstances warranting a mandatory injunction.
Costs
27. Pursuant to section 27 of the Civil Procedure Act, costs follow the event unless the Court orders otherwise. The Plaintiff has failed in this application and no reason has been advanced to depart from the general rule.
Disposition
28. The Notice of Motion dated 24th October 2025 is hereby dismissed with costs to the Defendant.
It is so ordered.
Dated, signed and delivered at Mombasa this …11 th … day of February………… 2026.
HON. LADY JUSTICE W. K. MICHENI JUDGE
In the presence of:
For the Plaintiff/Applicant
For the Defendant/RespondentCourt Assistant; Bebora
1. The application before this Court is dated 24th October 2025 and seeks the following orders:
1. Spent.
2. That pending the hearing and determination of this application, this Honourable Court be pleased to issue an order directing the immediate release of Container No. CMAU5577617 under Bill of Lading No. CE10289956 held by the Defendant.
3. That the Plaintiff undertakes to pay the legitimate and lawfully assessed charge of Kshs. 320,984 if they dispute the amount of Kshs. 500,000 allegedly paid and acknowledged by the Defendant’s officer, one Mr. Henry Were.
4. That the OCS Port Police Station and the Chief Manager CFS Operations ensure compliance with the release order.
5. That costs of this application be provided for.
2. The application is supported by the affidavit of Nicholas Kitonga Mwilu, a director of the Plaintiff. He depones that the suit concerns the alleged unlawful detention and conversion of goods contained in Container No. CMAU5577617 under Bill of Lading No. CE10289956. The goods comprise four tractors imported through the Port of Mombasa.
3. It is deponed that the container arrived on 3rd September 2023 and was placed at the Defendant’s Container Freight Station (CFS) for customs clearance under Import Entry No. 24MBAIM401732780. The Plaintiff attributes delay in clearance to unavoidable natural calamities and relies on section 34(1) of the East African Community Customs Management Act, 2004 (EACCMA). It contends that after lapse of the statutory period, the goods were deemed deposited in a customs warehouse under the control of the Interested Party pursuant to section 34(5) of EACCMA.
4. The Plaintiff further avers that it applied for waiver of accrued warehouse rent under Regulation 85 of the East African Community Customs Management Regulations (EACCMR), and that the Interested Party waived Kshs. 478,616. It asserts that pursuant to section 42(8) of EACCMA and Regulation 86 of EACCMR, the goods were authorized for release within thirty (30) days.
5. The Plaintiff contends that during the said window, it requested the Defendant to waive storage charges. Upon failure by the Defendant to respond, it allegedly remitted Kshs. 500,000 to one Mr. Henry Were, said to be the Defendant’s officer, as full settlement of lawful charges. Despite this, the Defendant allegedly continued to detain the container and subsequently issued an invoice dated 17th December 2024 demanding USD 26,349.60, inclusive of storage charges of USD 21,950 for 439 days.
6. The Plaintiff maintains that under section 34(4) of EACCMA, goods not cleared within 21 days must be transferred to a customs warehouse and that storage fees thereafter become warehouse rent payable exclusively to the Interested Party. It therefore asserts that the Defendant lacks any lawful basis to levy storage charges.
7. The Plaintiff quantifies alleged losses at Kshs. 51,300,736.38, comprising loan interest, loss of business opportunities, and foregone sales. It contends that the Defendant has no statutory lien and that continued detention violates Article 47 of the Constitution.
8. The Defendant opposes the application through the affidavit of Farhad Hassan Noor sworn on 19th November 2025. It avers that the consignee named in the Bill of Lading is Equity Bank Kenya Limited and that as a document of title, the Bill of Lading confers rights upon the named consignee. The Plaintiff has not demonstrated endorsement or transfer of title.
9. The Defendant further states that it was appointed as a transit shed and customs warehouse under Gazette Notice No. 1540 dated 5th March 2014. It avers that customs warehouse rent is collected by KRA, and that the impugned charges arise under the Kenya Ports Authority Act and the applicable CFS Agreement, which are distinct from EACCMA provisions.
10. The Defendant denies the existence of any employee known as Henry Were and denies receipt of the alleged payment. It maintains that payments are only received through formal banking channels. It also states that the waiver period ran from 2nd October 2024 to 2nd November 2024 and lapsed.
11. The Plaintiff filed a supplementary affidavit asserting that Equity Bank was merely a financier and not the owner of the cargo, and that ownership is evidenced by duty payment receipts and delivery orders.
12. The Interested Party did not file a response.
13. The issues for determination are:
a) Whether the Plaintiff has met the threshold for grant of an interlocutory injunction;b) Who should bear the costs of the application.
Analysis
14. The application is brought under Order 40 Rule 1 of the Civil Procedure Rules. The principles governing interlocutory injunctions are settled in Giella v Cassman Brown & Co. Ltd (1973) EA 358 , where the Court of Appeal held that an applicant must establish:
• A prima facie case with a probability of success;
• That irreparable injury would result if the injunction is not granted;
• If in doubt, the application is determined on a balance of convenience.
15. The meaning of a prima facie case was elaborated in Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 123 , as a case which on the material presented shows an apparent infringement of a right requiring rebuttal.
16. In Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR , the Court of Appeal emphasized that these conditions are sequential and must each be satisfied before moving to the next.
17. The present application, though framed as prohibitory, effectively seeks a mandatory order compelling release of the container. The threshold for mandatory injunctions at an interlocutory stage is higher.
18. In Locabail International Finance Ltd v Agro-Export & Another [1986] 1 ALL ER 901 , the Court held that a mandatory injunction will only be granted in special circumstances and in clear cases.
19. The Court of Appeal in Kenya Breweries Ltd & Another v Washington O. Okeyo [2002] 1 EA 109 adopted this position and held that such orders are granted sparingly and only in clear and straightforward cases.
20. Similarly, in Nation Media Group & 2 Others v John Harun Mwau [2014] eKLR , the Court reiterated that mandatory injunctions at interlocutory stage are exceptional remedies.
21. In the present matter, there are substantial and contested issues concerning:
• Legal ownership of the goods under the Bill of Lading;
• The legal effect of naming Equity Bank as consignee;
• The statutory and contractual framework governing storage charges;
• The alleged payment of Kshs. 500,000;
• The scope and duration of the waiver granted by the Interested Party.
22. These issues require full evidentiary interrogation at trial. This is not a plain and obvious case warranting a mandatory order at this stage.
23. On irreparable harm, the alleged losses are quantifiable and compensable by damages. As stated in Nguruman (supra) , where damages are an adequate remedy, an injunction should not ordinarily issue.
24. The balance of convenience does not favour release of the goods at this interlocutory stage, as doing so would effectively determine substantive issues prematurely.
25. The Court further notes with concern that the Applicant cited authorities in submissions which, upon scrutiny, are either inaccurately cited or non-existent in Kenyan jurisprudence. Counsel owe the Court a duty of candour and accuracy. Reliance on non-existent or unverifiable case law is a serious professional lapse and undermines the integrity of judicial proceedings. The Court has therefore relied only on established and verifiable authorities.
26. The Plaintiff has failed to establish a prima facie case, irreparable harm, or special circumstances warranting a mandatory injunction.
Costs
27. Pursuant to section 27 of the Civil Procedure Act, costs follow the event unless the Court orders otherwise. The Plaintiff has failed in this application and no reason has been advanced to depart from the general rule.
Disposition
28. The Notice of Motion dated 24th October 2025 is hereby dismissed with costs to the Defendant.
It is so ordered.
Dated, signed and delivered at Mombasa this …11 th … day of February………… 2026.
HON. LADY JUSTICE W. K. MICHENI JUDGE
In the presence of:
For the Plaintiff/Applicant
For the Defendant/RespondentCourt Assistant; Bebora