1. By a claim form dated 27 March 2025, the claimant has sought judgment against the “respondent” for:
“a) Unpaid wages amounting to USD 75,706 from the date of instituting this Claim to the date of sale of the vessel.
b) Costs of this claim.
c) Interest on (a) and (b) above from date of filing suit.
d) Arrest of the vessel as security for A, B and C.
e) Judicial Sale of the Vessel in default of A, B, C, D and E.”
2. The claimant is described in the claim as an adult male residing in Kenya and who, at all times material to this claim, was employed as “Master of Motor Vessel 'SEA MFALME”, which is a fishing vessel.
3. The 1st respondent, on the other hand, was at all material times the Owner of the Motor Vessel SEA MFALME registered at the Port of Mombasa in the Republic of Kenya under IMO number 8805298; it has a gross tonnage of 622 tonnes and it is 49.91 metres long. The respondent (apparently, the 1st respondent) is said to have been in control of the vessel. The 2nd respondent is a limited liability company and which, at the material time, was an agent of the 1st respondent.
4. The claimant’s claim against the vessel is in the sum of USD 75,706 for what the claimant has described as “unclaimed wages” from the Month of April,2024 to the date of filing suit. The particulars of the claim have been given in the claim.
5. According to the claimant, he was abandoned by the respondents on the vessel in April, 2024 without pay or provisions and that he never disembarked from the vessel and, therefore, his wages have continued to accrue.
6. In response to the claim, the respondents filed a preliminary objection, objecting to the jurisdiction of this Honourable Court to hear and determine the claim because, according to them, the claim is based on personna and that the vessel flies a Kenyan flag. It is also contended that the contract in issue is based on Kenya Employment Act, 2007 and so the proper court to dispose of the claim is the Employment and Labour Relations Court.
7. In support of the preliminary objection, the respondents’ counsel submitted that although under the English law a claim for crew wages is an admiralty claim, the position in this country has since changed in the wake of the promulgation of the Constitution, 2010. In particular, article 165(5) (b) of the Constitution has transferred the High Court jurisdiction in labour matters to the Employment and Labour Relations Court. Accordingly, this Honourable Court lacks the requisite jurisdiction to hear and determine the claim before it.
8. The learned counsel for the respondent has relied on Didovsky Igor & 11 Others Vs. International Bulk Carrier SPA & 2 Others (1015) eKLR in which the Employment and Labour Relations Court asserted its jurisdiction in a claim for wages in what was otherwise an admiralty claim. To be precise, the claim was instituted as an admiralty claim for wages and other employment benefits by the crew of the Motor Vessel Blida against the Owners of that Vessel. The High Court, sitting as an admiralty court, transferred the claim to the industrial court, for hearing and determination.
9. It has further been submitted that when the claim was in the High Court, the dispute was an admiralty action in rem, but that the moment it was transferred to the Employment and Labour Relations Court, it became an ordinary civil suit in personam, as a claim by employees against their employers. The vessel was discharged of any liability and its release was secured.
10. Turning back to this case, it is urged that according to articles 162(2)(a) and 165(5)(6) of the Constitution, Section 4 of the Judicature Act, Cap 8, was changed by deletion of the words "High Court" and substituted with the words "Employment & Labour Relations Court" as regards all claims for wages by crew of ships. Accordingly, the arrest and continued arrest of Motor Vessel Sea Mfalme is unlawful as the claim is said to fall squarely within the jurisdiction of the Employment and Labour Relations Court.
11. In response to the preliminary objection, it has been urged on behalf of the claimant that the claimant’s suit is not a personal action against an employer, but a claim in rem against the Motor Vessel “SEA MFALME” for unpaid maritime wages. The claim is founded upon the vessel's detention and continuing obligation, and seeks, among other things, arrest and judicial sale of the vessel, which reliefs are only available under admiralty jurisdiction.
12. While the Employment and Labour Relations Court is competent to determine employment disputes in personam, the court has no jurisdiction to entertain admiralty claims in rem such as the present claim. In this submission, the claimant’s learned counsel relied on Priyantha & 8 others v Owners of the Vessel “FV Maab Aqua 2'' & another [2025] KEHC 8678 (KLR) in which I overruled an objection similar to the one raised in this suit.
13. It is true that indeed an objection on jurisdiction of this Honourable Court was raised in Priyantha & 8 others v Owners of the Vessel “FV Maab Aqua 2'' & another (supra). To the extent that the same question which arose in that case has been posed in this suit, I need not say anything more than what I said in that case, of course, at the risk of sounding repetitive.
14. To begin with, the term “admiralty” is said to have its origins from the time when the admiral in England “…exercised significant powers over the sovereign’s naval fleet, as well as over those matters that occurred at sea over which common law courts had no jurisdiction. (see E. Gold, A. Chircop and H. Kindred, Maritime Law, Irwin Law Inc. 2003 p1). According to these authors, at its inception, the common law was ill-equipped to handle matters of the sea, that is, maritime matters (at page 749) and, therefore, admiralty courts were established to deal with such matters. It follows that admiralty jurisdiction may be defined as the power or authority invested in an admiralty court to hear and determine admiralty matters.
15. In his book, Admiralty and Maritime Law in Tanzania, Ibrahim Mbiu Bendera, says (at p.2) that admiralty jurisdiction in Tanzania is not inherent; it is conferred by statute which expressly lists matters that can be determined under this jurisdiction and the procedure for initiating, conducting and determining them.
16. In Kenya, admiralty jurisdiction has been conferred to this Honourable Court by section 4 of the Judicature Act, cap. 8 which states as follows:
(1) The High Court shall be a court of admiralty, and shall exercise admiralty jurisdiction in all matters arising on the high seas, or in territorial waters, or upon any lake or other navigable inland waters in Kenya.
(2) The admiralty jurisdiction of the High Court shall be exercisable—
(a) over and in respect of the same persons, things and matters; and
(b) in the same manner and to the same extent; and
(c) in accordance with the same procedure, as in the High Court in England, and shall be exercised in conformity with international laws and the comity of nations.
(3) In the exercise of its admiralty jurisdiction, the High Court may exercise all the powers which it possesses for the purpose of its other civil jurisdiction.
(4) An appeal shall lie from any judgment, order or decision of the High Court in the exercise of its admiralty jurisdiction within the same time and in the same manner as an appeal from a decree of the High Court under Part VII of the Civil Procedure Act.
17. The Court of Appeal discussed the application of this provision in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (supra). In that case, the court noted, in the exercise of its admiralty jurisdiction, this Honourable Court has to apply the law of England and that, in order to discover what that law is, one has to look at the Supreme Court Act, 1981, (now called the Senior Courts Act, 1981) and more specifically Sections 20 and 21 of the said Act. These provisions state as follows:
20.(1) The Admiralty jurisdiction of the High Court shall be as follows, that is to say-
(a) jurisdiction to hear and determine any of the questions and claims mentioned in subsection (2);
(b) jurisdiction in relation to any of the proceedings mentioned in subsection (3);
(c) any other Admiralty jurisdiction which it had immediately before the commencement of this Act; and
(d) any jurisdiction connected with ships or aircraft which is vested in the High Court apart from this section and is for the time being by rules of court made or coming into force after the commencement of this Act assigned to the Queen’s Bench Division and directed by the rules to be exercised by the Admiralty Court.)
(2) The questions and claims referred to in subsection (1)(a) are—
(a) any claim to the possession or ownership of a ship or to the ownership of any share therein;
(b) any question arising between the co-owners of a ship as to possession, employment or earnings of that ship;
(c) any claim in respect of a mortgage of or charge on a ship or any share therein;
(d) any claim for damage received by a ship;
(e) any claim for damage done by a ship;
(f) any claim for loss of life or personal injury sustained in consequence of any defect in a ship or in her apparel or equipment, or in consequence of the wrongful act, neglect or default of—
(i) the owners, charterers or persons in possession or control of a ship; or
(ii) the master or crew of a ship, or any other person for whose wrongful acts, neglects or defaults the owners, charterers or persons in possession or control of a ship are responsible, being an act, neglect or default in the navigation or management of the ship, in the loading, carriage or discharge of goods on, in or from the ship, or in the embarkation, carriage or disembarkation of persons on, in or from the ship;
(g) any claim for loss of or damage to goods carried in a ship;
(h) any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship;
(i) any claim in the nature of salvage (including any claim arising by virtue of the application, by or under section 51 of the Civil Aviation Act 1949, of the law relating to salvage to aircraft and their apparel and cargo);
(k) any claim in the nature of towage in respect of a ship or an aircraft:
(1) any claim in the nature of pilotage in respect of a ship or an aircraft;
(m) any claim in respect of goods or materials supplied to a ship for her operation or maintenance;
(n) any claim in respect of the construction, repair or equipment of a ship or in respect of dock charges or dues;
(0) any claim by a master or member of the crew of a ship for wages (including any sum allotted out of wages or adjudged by a superintendent to be due by way of wages);
(p) any claim by a master, shipper, charterer or agent in respect of disbursements made on account of a ship;
(q) any claim arising out of an act which is or is claimed to be a general average act;
(r) any claim arising out of bottomry;
(s) any claim for the forfeiture or condemnation of a ship or of goods which are being or have been carried, or have been attempted to be carried, in a ship, or for the restoration of a ship or any such goods after seizure, or for droits of Admiralty.
(3) The proceedings referred to in subsection (1)(b) are—
(a) any application to the High Court under the Merchant Shipping Acts 1894 to 1979 other than an application under section 55 of the Merchant Shipping Act 1894 for the appointment of a person to act as a substitute for a person incapable of acting;
(b) any action to enforce a claim for damage, loss of life or personal injury arising out of—
(i) a collision between ships; or
(ii) the carrying out of or omission to carry out a manoeuvre in the case of one or more of two or more ships; or
(iii) non-compliance, on the part of one or more of two or more ships, with the collision regulations;
(c) any action by shipowners or other persons under the Merchant Shipping Acts 1894 to 1979 for the limitation of the amount of their liability in connection with a ship or other property.
(4) The jurisdiction of the High Court under subsection (2)(b) includes power to settle any account outstanding and unsettled between the parties in relation to the ship, and to direct that the ship, or any share thereof, shall be sold, and to make such other order as the court thinks fit.
(5) Subsection (2)(e) extends to—
(a) any claim in respect of a liability incurred under the Merchant Shipping (Oil Pollution) Act 1971; and
(b) any claim in respect of a liability falling on the International Oil Pollution Compensation Fund under Part I of the Merchant Shipping Act 1974.
(6) The reference in subsection (2)(j) to claims in the nature of salvage includes a reference to such claims for services rendered in saving life from a ship or an aircraft or in preserving cargo, apparel or wreck as, under sections 544 to 546 of the Merchant Shipping Act 1894, or any Order in Council made under section 51 of the Civil Aviation Act 1949, are authorised to be made in connection with a ship or an aircraft.
(7) The preceding provisions of this section apply—
(a) in relation to all ships or aircraft, whether British or not and whether registered or not and wherever the residence or domicile of their owners may be;
(b) in relation to all claims, wherever arising (including, in the case of cargo or wreck salvage, claims in respect of cargo or wreck found on land); and
(c) so far as they relate to mortgages and charges, to all mortgages or charges, whether registered or not and whether legal or equitable, including mortgages and charges created under foreign law:
Provided that nothing in this subsection shall be construed as extending the cases in which money or property is recoverable under any of the provisions of the Merchant Shipping Acts 1894 to 1979.
18. As far as the mode of exercising jurisdiction is concerned, it is covered in section 21 of the Act which reads as follows:
21. (1) Subject to section 22, an action in personam may be brought in the High Court in all cases within the Admiralty jurisdiction of that court.
(2) In the case of any such claim as is mentioned in section 20(2)(a), (c) or (s) or any such question as is mentioned in section 20(2)(b), an action in rem may be brought in the High Court against the ship or property in connection with which the claim or question arises.
(3) In any case in which there is a maritime lien or other charge on any ship, aircraft or other property for the amount claimed, an action in rem may be brought in the High Court against that ship, aircraft or property.
(4) In the case of any such claim as is mentioned in section 20(2)(e) to (r), where—
(a) the claim arises in connection with a ship; and
(b) the person who would be liable on the claim in an action in personam (“the relevant person’’) was, when the cause of action arose, the owner or charterer of, or in possession or in control of, the ship, an action in rem may (whether or not the claim gives rise to a maritime lien on that ship) be brought in the High Court against—
(i) that ship, if at the time when the action is brought the relevant person is either the beneficial owner of that ship as respects all the shares in it or the charterer of it under a charter by demise; or
(ii) any other ship of which, at the time when the action is brought, the relevant person is the beneficial owner as respects all the shares in it.
(5) In the case of a claim in the nature of towage or pilotage in respect of an aircraft, an action in rem may be brought in the High Court against that aircraft if, at the time when the action is brought, it is beneficially owned by the person who would be liable on the claim in an action in personam.
(6) Where, in the exercise of its Admiralty jurisdiction, the High Court orders any ship, aircraft or other property to be sold, the court shall have jurisdiction to hear and determine any question arising as to the title to the proceeds of sale.
(7) In determining for the purposes of subsections (4) and (5) whether a person would be liable on a claim in an action in personam it shall be assumed that he has his habitual residence or a place of business within England or Wales.
(8) Where, as regards any such claim as is mentioned in section 20(2)(e) to (r), a ship has been served with a writ or arrested in an action in rem brought to enforce that claim, no other ship may be served with a writ or arrested in that or any other action in rem brought to enforce that claim; but this subsection does not prevent the issue, in respect of any one such claim, of a writ naming more than one ship or of two or more writs each naming a different ship.
19. Against the background of these provisions, the Court of Appeal concluded that:
“admiralty actions therefore may be either in rem or in personam. An admiralty action in rem is in effect an action against a res. A res is usually a ship but may in some cases be cargo or freight or an aircraft. In such an action the plaintiff may cause the res to be arrested if it is within jurisdiction.”
20. In the wake of these provisions, and the Court of Appeal’s pronouncements in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd, it is beyond debate that this Honourable Court is vested with jurisdiction over matters admiralty.
21. I noted in Priyantha & 8 others v Owners of the Vessel “FV Maab Aqua 2'' & another (supra) that as far as the claimants in that case were concerned, their claim was against res, The Owners of the Vessel “F.V. Maab Aqua 2 and, amongst other prayers, they sought wages, disbursements, repatriation costs and, damages, both special and general. In my humble view, all these claims are admiralty matters covered under section 20 (2) (o) and (p) of the Senior Courts Act, 1981. The entire section 20 has been reproduced above but I reproduce here the pertinent parts thereof for emphasis’ sake. They are as follows:
20.(1) The Admiralty jurisdiction of the High Court shall be as follows, that is to say-
(a) jurisdiction to hear and determine any of the questions and claims mentioned in subsection (2);
(2) The questions and claims referred to in subsection (1)(a) are—
(h) any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship.
(o) any claim by a master or member of the crew of a ship for wages (including any sum allotted out of wages or adjudged by a superintendent to be due by way of wages);
(p) any claim by a master, shipper, charterer or agent in respect of disbursements made on account of a ship;
22. Just like in the instant case, it was urged in the Priyantha & 8 others v Owners of the Vessel “FV Maab Aqua 2'' & another case (supra) that to the extent that the claimants were seeking wages for their labour, the 1st defendant is of the firm view that this Honourable Court had no jurisdiction to entertain the claim and that the matter should have been left to the Employment and Labour Relations Court because section 12 (1) of the Employment and Labour Relations Court Act reserves such matters for the Employment and Labour Relations Court. This section reads as follows:
12. Jurisdiction of the Court
(1) The Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the Court relating to employment and labour relations including —
(a)disputes relating to or arising out of employment between an employer and an employee;
(b)disputes between an employer and a trade union;
(c)disputes between an employers' organisation and a trade unions organisation;
(d)disputes between trade unions;
(e)disputes between employer organizations;
(f)disputes between an employers' organisation and a trade union;
(g)disputes between a trade union and a member thereof;
(h)disputes between an employer's organisation or a federation and a member thereof;
(i)disputes concerning the registration and election of trade union officials; and
(j)disputes relating to the registration and enforcement of collective agreements.
23. And like in the Priyantha & 8 others v Owners of the Vessel “FV Maab Aqua 2'' & another case (supra) where the 1st defendant cited Didovsky Igor & 11 Others Vs. International Bulk Carrier SPA & 2 Others (supra), the respondents in this case have relied on the same decision in support of their argument that this Honourable Court lacks jurisdiction. In that case, this Honourable Court is said to have downed its tools in a matter which commenced as an admiralty claim for wages and other employment benefits by the crew of the Motor Vessel Blida against the Owners of that Vessel. While the dispute was initiated in this Honourable Court as an admiralty action in rem, it was transferred to the Employment and Labour Relations Court as an ordinary civil suit in personam, by employees against employers.
24. It has been urged in the instant case, as it was in Priyantha & 8 others v Owners of the Vessel “FV Maab Aqua 2'' & another, that I should follow suit and down tools for want of jurisdiction considering that the claim is for alleged unpaid wages, and for that reason, falls under the jurisdiction of the Employment and Labour Relations Court.
25. Besides the Didovsky Igor & 11 Others Vs. International Bulk Carrier SPA & 2 Others case, it has been urged that according to article 165(5)(b) of the Constitution, this Honourable Court is deprived of jurisdiction to entertain matters within the jurisdiction of the Employment and Labour Relations Court.
26. Article 165(5) (b) of the Constitution reads as follows:
The High Court shall not have jurisdiction in respect of matters—
(a)…
(b) falling within the jurisdiction of the courts contemplated in Article 162(2).
27. Article 162 (2) to which reference has been made in article 162(5)(b) reads as follows:
Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—
(a) employment and labour relations; and
(b) the environment and the use and occupation of, and title to, land.
28. In Didovsky Igor & 11 Others Vs. International Bulk Carrier SPA & 2 Others (1015) eKR, it would appear that the court, on its own motion, transferred the suit before it to the Employment and Labour Relations Court. Unlike in the instant case, the question whether the court was properly seized of jurisdiction to entertain the dispute before it was never argued and a determination made.
29. Without arguments and a reasoned determination, that case is of little precedent value to this case. The mere fact of transfer of a case, by a judge of coordinate jurisdiction, from one court to another, is not, of itself, sufficient to compel me, to follow the example, so to speak, and down tools. Needless to say, even if a reasoned determination had been made, it would only go as far as being persuasive so that I would be entitled to depart from it if I have reasons to.
30. I am minded that when Didovsky Igor & 11 others v International Bulk Carrier Spa & 2 others (supra) finally landed in the Employment and Labour Relations Court, Rika, J. asserted the jurisdiction of that court over the dispute and noted, inter alia, that:
“61. The continued reliance on the procedure of the High Court of England in dealing with our admiralty matters, appears to this Court out-dated. There have been calls for amendment of Section 4 of the Judicature Act, and for development of homegrown admiralty legal regime.”
31. Perhaps, because of what my learned brother understood to be the inadequacies associated with section 4 of the Judicature Act, hence the call for its amendment, he held that where there is a composite admiralty claim part of which is a claim for wages, the then Industrial Court, now the Employment and Labour Relations Court, would assume jurisdiction and there would be no need for a truncated approach. The truncated approach in this instance meant that one claim being lodged in the High Court while another being filed in the Employment and Labour Relations Court.
32. In the learned judge’s words:
65. “…the claimants should have filed their admiralty claims for recovery of wages and repatriation expenses as well as the present claim for damages, under one single Cause, at the Industrial Court. The subject matter of the claims that were litigated at the High Court in its admiralty jurisdiction- employment wages- is a core subject of the jurisdiction of the Industrial Court. Recovery of wages should not have been severed from the present claim and pursued in a different Court.”
33. It is important to bear in mind that jurisdiction on matters admiralty is conferred not by the procedure of the High Court of England but by section 4 of the Judicature Act. It is the manner of exercise of the admiralty jurisdiction that should be as in the High Court in England, and in conformity with international laws and the comity of nations. (See section 4 (2) of the Judicature Act).
34. Subject to my reservations about the danger of truncated approach to admiralty claims, and which I have illustrated later in this ruling, it is up to the legislature, if in its view it is necessary, to amend and align section 4 of the Judicature Act together with the section 12 of the Employment and Labour Relations Act and confer certain aspects of admiralty jurisdiction to the Employment and Labour Relations Court. However, in the current scheme of things, neither of these two provisions of the law confer the jurisdiction to the Employment and Labour Relations Court.
35. While I agree with my learned brother that there is no basis for a truncated approach in an admiralty action in a composite claim, I respectfully disagree that the Employment and Labour Relations Court should assume jurisdiction in an otherwise admiralty action only because a demand for wages is part of the composite claim.
36. Turning to article 162(2) (b) of the Constitution, it ought to be read with article 162(3) in order to appreciate its import. Article 162(3) reads as follows:
(3). Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2).
37. The Employment and Labour Relations Court is, of course, one of the two courts contemplated under clause (2) of article 162. As earlier noted, Parliament has determined the jurisdiction of that court in section 12 of the Employment and Labour Relations Court Act.
38. It is obvious from that section that Employment and Labour Relations Court does not have jurisdiction over admiralty matters. The only court that has admiralty jurisdiction is, of course, this Honourable Court. It has been noted that under section 4 of the Judicature Act, admiralty matters, amongst other matters for which this Honourable Court is seized of jurisdiction, include claim for wages. Section 4 of the Judicature should be viewed from the perspective of article 165 (3) (e) of the Constitution that the jurisdiction of this Honourable Court is not just that circumscribed by the Constitution but that the court has “any other jurisdiction, original or appellate, conferred on it by legislation.”
39. In my humble opinion, “wages”, in the context of section 20 of the Senior Courts Act, 1981 is more than an employment and labour relations matter, for which only the Employment and Labour Relations Court is established to interrogate in the event of a dispute. As along as the claim for wages involves a ship or vessel or is maritime oriented, the claim acquires the status of an admiralty matter and which, only this Honourable Court is vested with the requisite jurisdiction to oversee whenever a dispute arises.
40. This is why “any claim by a master or member of the crew of a ship for wages (including any sum allotted out of wages or adjudged by a superintendent to be due by way of wages) or any claim by a master, shipper, charterer or agent in respect of disbursements made on account of a ship” is not prescribed as an employment and labour relations matter under section 12 of the Employment and Labour Relations Act; it is an admiralty matter under section 20 (2) (o) and (p) of the Senior Courts Act, 1981.
41. I held in the Priyantha & 8 others v Owners of the Vessel “FV Maab Aqua 2'' & another case (supra) that in assuming jurisdiction in that case and issuing orders to arrest the ship, this Honourable Court could not be said to have usurped the jurisdiction of the Employment and Labour Relations Court and most, importantly, that it failed to give due regard to article 162(5) of the Constitution.
42. I held further that if one was to consider the question of the claimant’s claim for wages from the narrow perspective that it is an employment and labour relations matter, there would be a genuine and legitimate ground to doubt this Honourable Court’s assumption of jurisdiction over the claim. But if the question is considered strictly on the understanding that, beyond what would ordinarily be an employment and labour relations matter, the claim is an admiralty action under section 20 (2) (o) and (p) of the Senior Court Act, 1981, then the issue of usurpation of jurisdiction would not arise. Neither can it be urged that this Honourable Court is deprived of jurisdiction to entertain this claim by dint of article 165(5) (b) of the Constitution.
43. For the same reason and, in the same breath, I was not persuaded by the applicant’s submission in the Priyantha & 8 others v Owners of the Vessel “FV Maab Aqua 2'' & another case (supra) that for purposes of clothing the Employment and Labour Relations Court with the requisite jurisdiction to entertain this claim, “articles 162(2)(a) and 165(5)(b) of the Constitution altered, amended and adapted Section 4 of the Judicature Act, Cap 8, Laws of Kenya, by
[...truncated]
“a) Unpaid wages amounting to USD 75,706 from the date of instituting this Claim to the date of sale of the vessel.
b) Costs of this claim.
c) Interest on (a) and (b) above from date of filing suit.
d) Arrest of the vessel as security for A, B and C.
e) Judicial Sale of the Vessel in default of A, B, C, D and E.”
2. The claimant is described in the claim as an adult male residing in Kenya and who, at all times material to this claim, was employed as “Master of Motor Vessel 'SEA MFALME”, which is a fishing vessel.
3. The 1st respondent, on the other hand, was at all material times the Owner of the Motor Vessel SEA MFALME registered at the Port of Mombasa in the Republic of Kenya under IMO number 8805298; it has a gross tonnage of 622 tonnes and it is 49.91 metres long. The respondent (apparently, the 1st respondent) is said to have been in control of the vessel. The 2nd respondent is a limited liability company and which, at the material time, was an agent of the 1st respondent.
4. The claimant’s claim against the vessel is in the sum of USD 75,706 for what the claimant has described as “unclaimed wages” from the Month of April,2024 to the date of filing suit. The particulars of the claim have been given in the claim.
5. According to the claimant, he was abandoned by the respondents on the vessel in April, 2024 without pay or provisions and that he never disembarked from the vessel and, therefore, his wages have continued to accrue.
6. In response to the claim, the respondents filed a preliminary objection, objecting to the jurisdiction of this Honourable Court to hear and determine the claim because, according to them, the claim is based on personna and that the vessel flies a Kenyan flag. It is also contended that the contract in issue is based on Kenya Employment Act, 2007 and so the proper court to dispose of the claim is the Employment and Labour Relations Court.
7. In support of the preliminary objection, the respondents’ counsel submitted that although under the English law a claim for crew wages is an admiralty claim, the position in this country has since changed in the wake of the promulgation of the Constitution, 2010. In particular, article 165(5) (b) of the Constitution has transferred the High Court jurisdiction in labour matters to the Employment and Labour Relations Court. Accordingly, this Honourable Court lacks the requisite jurisdiction to hear and determine the claim before it.
8. The learned counsel for the respondent has relied on Didovsky Igor & 11 Others Vs. International Bulk Carrier SPA & 2 Others (1015) eKLR in which the Employment and Labour Relations Court asserted its jurisdiction in a claim for wages in what was otherwise an admiralty claim. To be precise, the claim was instituted as an admiralty claim for wages and other employment benefits by the crew of the Motor Vessel Blida against the Owners of that Vessel. The High Court, sitting as an admiralty court, transferred the claim to the industrial court, for hearing and determination.
9. It has further been submitted that when the claim was in the High Court, the dispute was an admiralty action in rem, but that the moment it was transferred to the Employment and Labour Relations Court, it became an ordinary civil suit in personam, as a claim by employees against their employers. The vessel was discharged of any liability and its release was secured.
10. Turning back to this case, it is urged that according to articles 162(2)(a) and 165(5)(6) of the Constitution, Section 4 of the Judicature Act, Cap 8, was changed by deletion of the words "High Court" and substituted with the words "Employment & Labour Relations Court" as regards all claims for wages by crew of ships. Accordingly, the arrest and continued arrest of Motor Vessel Sea Mfalme is unlawful as the claim is said to fall squarely within the jurisdiction of the Employment and Labour Relations Court.
11. In response to the preliminary objection, it has been urged on behalf of the claimant that the claimant’s suit is not a personal action against an employer, but a claim in rem against the Motor Vessel “SEA MFALME” for unpaid maritime wages. The claim is founded upon the vessel's detention and continuing obligation, and seeks, among other things, arrest and judicial sale of the vessel, which reliefs are only available under admiralty jurisdiction.
12. While the Employment and Labour Relations Court is competent to determine employment disputes in personam, the court has no jurisdiction to entertain admiralty claims in rem such as the present claim. In this submission, the claimant’s learned counsel relied on Priyantha & 8 others v Owners of the Vessel “FV Maab Aqua 2'' & another [2025] KEHC 8678 (KLR) in which I overruled an objection similar to the one raised in this suit.
13. It is true that indeed an objection on jurisdiction of this Honourable Court was raised in Priyantha & 8 others v Owners of the Vessel “FV Maab Aqua 2'' & another (supra). To the extent that the same question which arose in that case has been posed in this suit, I need not say anything more than what I said in that case, of course, at the risk of sounding repetitive.
14. To begin with, the term “admiralty” is said to have its origins from the time when the admiral in England “…exercised significant powers over the sovereign’s naval fleet, as well as over those matters that occurred at sea over which common law courts had no jurisdiction. (see E. Gold, A. Chircop and H. Kindred, Maritime Law, Irwin Law Inc. 2003 p1). According to these authors, at its inception, the common law was ill-equipped to handle matters of the sea, that is, maritime matters (at page 749) and, therefore, admiralty courts were established to deal with such matters. It follows that admiralty jurisdiction may be defined as the power or authority invested in an admiralty court to hear and determine admiralty matters.
15. In his book, Admiralty and Maritime Law in Tanzania, Ibrahim Mbiu Bendera, says (at p.2) that admiralty jurisdiction in Tanzania is not inherent; it is conferred by statute which expressly lists matters that can be determined under this jurisdiction and the procedure for initiating, conducting and determining them.
16. In Kenya, admiralty jurisdiction has been conferred to this Honourable Court by section 4 of the Judicature Act, cap. 8 which states as follows:
(1) The High Court shall be a court of admiralty, and shall exercise admiralty jurisdiction in all matters arising on the high seas, or in territorial waters, or upon any lake or other navigable inland waters in Kenya.
(2) The admiralty jurisdiction of the High Court shall be exercisable—
(a) over and in respect of the same persons, things and matters; and
(b) in the same manner and to the same extent; and
(c) in accordance with the same procedure, as in the High Court in England, and shall be exercised in conformity with international laws and the comity of nations.
(3) In the exercise of its admiralty jurisdiction, the High Court may exercise all the powers which it possesses for the purpose of its other civil jurisdiction.
(4) An appeal shall lie from any judgment, order or decision of the High Court in the exercise of its admiralty jurisdiction within the same time and in the same manner as an appeal from a decree of the High Court under Part VII of the Civil Procedure Act.
17. The Court of Appeal discussed the application of this provision in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd (supra). In that case, the court noted, in the exercise of its admiralty jurisdiction, this Honourable Court has to apply the law of England and that, in order to discover what that law is, one has to look at the Supreme Court Act, 1981, (now called the Senior Courts Act, 1981) and more specifically Sections 20 and 21 of the said Act. These provisions state as follows:
20.(1) The Admiralty jurisdiction of the High Court shall be as follows, that is to say-
(a) jurisdiction to hear and determine any of the questions and claims mentioned in subsection (2);
(b) jurisdiction in relation to any of the proceedings mentioned in subsection (3);
(c) any other Admiralty jurisdiction which it had immediately before the commencement of this Act; and
(d) any jurisdiction connected with ships or aircraft which is vested in the High Court apart from this section and is for the time being by rules of court made or coming into force after the commencement of this Act assigned to the Queen’s Bench Division and directed by the rules to be exercised by the Admiralty Court.)
(2) The questions and claims referred to in subsection (1)(a) are—
(a) any claim to the possession or ownership of a ship or to the ownership of any share therein;
(b) any question arising between the co-owners of a ship as to possession, employment or earnings of that ship;
(c) any claim in respect of a mortgage of or charge on a ship or any share therein;
(d) any claim for damage received by a ship;
(e) any claim for damage done by a ship;
(f) any claim for loss of life or personal injury sustained in consequence of any defect in a ship or in her apparel or equipment, or in consequence of the wrongful act, neglect or default of—
(i) the owners, charterers or persons in possession or control of a ship; or
(ii) the master or crew of a ship, or any other person for whose wrongful acts, neglects or defaults the owners, charterers or persons in possession or control of a ship are responsible, being an act, neglect or default in the navigation or management of the ship, in the loading, carriage or discharge of goods on, in or from the ship, or in the embarkation, carriage or disembarkation of persons on, in or from the ship;
(g) any claim for loss of or damage to goods carried in a ship;
(h) any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship;
(i) any claim in the nature of salvage (including any claim arising by virtue of the application, by or under section 51 of the Civil Aviation Act 1949, of the law relating to salvage to aircraft and their apparel and cargo);
(k) any claim in the nature of towage in respect of a ship or an aircraft:
(1) any claim in the nature of pilotage in respect of a ship or an aircraft;
(m) any claim in respect of goods or materials supplied to a ship for her operation or maintenance;
(n) any claim in respect of the construction, repair or equipment of a ship or in respect of dock charges or dues;
(0) any claim by a master or member of the crew of a ship for wages (including any sum allotted out of wages or adjudged by a superintendent to be due by way of wages);
(p) any claim by a master, shipper, charterer or agent in respect of disbursements made on account of a ship;
(q) any claim arising out of an act which is or is claimed to be a general average act;
(r) any claim arising out of bottomry;
(s) any claim for the forfeiture or condemnation of a ship or of goods which are being or have been carried, or have been attempted to be carried, in a ship, or for the restoration of a ship or any such goods after seizure, or for droits of Admiralty.
(3) The proceedings referred to in subsection (1)(b) are—
(a) any application to the High Court under the Merchant Shipping Acts 1894 to 1979 other than an application under section 55 of the Merchant Shipping Act 1894 for the appointment of a person to act as a substitute for a person incapable of acting;
(b) any action to enforce a claim for damage, loss of life or personal injury arising out of—
(i) a collision between ships; or
(ii) the carrying out of or omission to carry out a manoeuvre in the case of one or more of two or more ships; or
(iii) non-compliance, on the part of one or more of two or more ships, with the collision regulations;
(c) any action by shipowners or other persons under the Merchant Shipping Acts 1894 to 1979 for the limitation of the amount of their liability in connection with a ship or other property.
(4) The jurisdiction of the High Court under subsection (2)(b) includes power to settle any account outstanding and unsettled between the parties in relation to the ship, and to direct that the ship, or any share thereof, shall be sold, and to make such other order as the court thinks fit.
(5) Subsection (2)(e) extends to—
(a) any claim in respect of a liability incurred under the Merchant Shipping (Oil Pollution) Act 1971; and
(b) any claim in respect of a liability falling on the International Oil Pollution Compensation Fund under Part I of the Merchant Shipping Act 1974.
(6) The reference in subsection (2)(j) to claims in the nature of salvage includes a reference to such claims for services rendered in saving life from a ship or an aircraft or in preserving cargo, apparel or wreck as, under sections 544 to 546 of the Merchant Shipping Act 1894, or any Order in Council made under section 51 of the Civil Aviation Act 1949, are authorised to be made in connection with a ship or an aircraft.
(7) The preceding provisions of this section apply—
(a) in relation to all ships or aircraft, whether British or not and whether registered or not and wherever the residence or domicile of their owners may be;
(b) in relation to all claims, wherever arising (including, in the case of cargo or wreck salvage, claims in respect of cargo or wreck found on land); and
(c) so far as they relate to mortgages and charges, to all mortgages or charges, whether registered or not and whether legal or equitable, including mortgages and charges created under foreign law:
Provided that nothing in this subsection shall be construed as extending the cases in which money or property is recoverable under any of the provisions of the Merchant Shipping Acts 1894 to 1979.
18. As far as the mode of exercising jurisdiction is concerned, it is covered in section 21 of the Act which reads as follows:
21. (1) Subject to section 22, an action in personam may be brought in the High Court in all cases within the Admiralty jurisdiction of that court.
(2) In the case of any such claim as is mentioned in section 20(2)(a), (c) or (s) or any such question as is mentioned in section 20(2)(b), an action in rem may be brought in the High Court against the ship or property in connection with which the claim or question arises.
(3) In any case in which there is a maritime lien or other charge on any ship, aircraft or other property for the amount claimed, an action in rem may be brought in the High Court against that ship, aircraft or property.
(4) In the case of any such claim as is mentioned in section 20(2)(e) to (r), where—
(a) the claim arises in connection with a ship; and
(b) the person who would be liable on the claim in an action in personam (“the relevant person’’) was, when the cause of action arose, the owner or charterer of, or in possession or in control of, the ship, an action in rem may (whether or not the claim gives rise to a maritime lien on that ship) be brought in the High Court against—
(i) that ship, if at the time when the action is brought the relevant person is either the beneficial owner of that ship as respects all the shares in it or the charterer of it under a charter by demise; or
(ii) any other ship of which, at the time when the action is brought, the relevant person is the beneficial owner as respects all the shares in it.
(5) In the case of a claim in the nature of towage or pilotage in respect of an aircraft, an action in rem may be brought in the High Court against that aircraft if, at the time when the action is brought, it is beneficially owned by the person who would be liable on the claim in an action in personam.
(6) Where, in the exercise of its Admiralty jurisdiction, the High Court orders any ship, aircraft or other property to be sold, the court shall have jurisdiction to hear and determine any question arising as to the title to the proceeds of sale.
(7) In determining for the purposes of subsections (4) and (5) whether a person would be liable on a claim in an action in personam it shall be assumed that he has his habitual residence or a place of business within England or Wales.
(8) Where, as regards any such claim as is mentioned in section 20(2)(e) to (r), a ship has been served with a writ or arrested in an action in rem brought to enforce that claim, no other ship may be served with a writ or arrested in that or any other action in rem brought to enforce that claim; but this subsection does not prevent the issue, in respect of any one such claim, of a writ naming more than one ship or of two or more writs each naming a different ship.
19. Against the background of these provisions, the Court of Appeal concluded that:
“admiralty actions therefore may be either in rem or in personam. An admiralty action in rem is in effect an action against a res. A res is usually a ship but may in some cases be cargo or freight or an aircraft. In such an action the plaintiff may cause the res to be arrested if it is within jurisdiction.”
20. In the wake of these provisions, and the Court of Appeal’s pronouncements in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd, it is beyond debate that this Honourable Court is vested with jurisdiction over matters admiralty.
21. I noted in Priyantha & 8 others v Owners of the Vessel “FV Maab Aqua 2'' & another (supra) that as far as the claimants in that case were concerned, their claim was against res, The Owners of the Vessel “F.V. Maab Aqua 2 and, amongst other prayers, they sought wages, disbursements, repatriation costs and, damages, both special and general. In my humble view, all these claims are admiralty matters covered under section 20 (2) (o) and (p) of the Senior Courts Act, 1981. The entire section 20 has been reproduced above but I reproduce here the pertinent parts thereof for emphasis’ sake. They are as follows:
20.(1) The Admiralty jurisdiction of the High Court shall be as follows, that is to say-
(a) jurisdiction to hear and determine any of the questions and claims mentioned in subsection (2);
(2) The questions and claims referred to in subsection (1)(a) are—
(h) any claim arising out of any agreement relating to the carriage of goods in a ship or to the use or hire of a ship.
(o) any claim by a master or member of the crew of a ship for wages (including any sum allotted out of wages or adjudged by a superintendent to be due by way of wages);
(p) any claim by a master, shipper, charterer or agent in respect of disbursements made on account of a ship;
22. Just like in the instant case, it was urged in the Priyantha & 8 others v Owners of the Vessel “FV Maab Aqua 2'' & another case (supra) that to the extent that the claimants were seeking wages for their labour, the 1st defendant is of the firm view that this Honourable Court had no jurisdiction to entertain the claim and that the matter should have been left to the Employment and Labour Relations Court because section 12 (1) of the Employment and Labour Relations Court Act reserves such matters for the Employment and Labour Relations Court. This section reads as follows:
12. Jurisdiction of the Court
(1) The Court shall have exclusive original and appellate jurisdiction to hear and determine all disputes referred to it in accordance with Article 162(2) of the Constitution and the provisions of this Act or any other written law which extends jurisdiction to the Court relating to employment and labour relations including —
(a)disputes relating to or arising out of employment between an employer and an employee;
(b)disputes between an employer and a trade union;
(c)disputes between an employers' organisation and a trade unions organisation;
(d)disputes between trade unions;
(e)disputes between employer organizations;
(f)disputes between an employers' organisation and a trade union;
(g)disputes between a trade union and a member thereof;
(h)disputes between an employer's organisation or a federation and a member thereof;
(i)disputes concerning the registration and election of trade union officials; and
(j)disputes relating to the registration and enforcement of collective agreements.
23. And like in the Priyantha & 8 others v Owners of the Vessel “FV Maab Aqua 2'' & another case (supra) where the 1st defendant cited Didovsky Igor & 11 Others Vs. International Bulk Carrier SPA & 2 Others (supra), the respondents in this case have relied on the same decision in support of their argument that this Honourable Court lacks jurisdiction. In that case, this Honourable Court is said to have downed its tools in a matter which commenced as an admiralty claim for wages and other employment benefits by the crew of the Motor Vessel Blida against the Owners of that Vessel. While the dispute was initiated in this Honourable Court as an admiralty action in rem, it was transferred to the Employment and Labour Relations Court as an ordinary civil suit in personam, by employees against employers.
24. It has been urged in the instant case, as it was in Priyantha & 8 others v Owners of the Vessel “FV Maab Aqua 2'' & another, that I should follow suit and down tools for want of jurisdiction considering that the claim is for alleged unpaid wages, and for that reason, falls under the jurisdiction of the Employment and Labour Relations Court.
25. Besides the Didovsky Igor & 11 Others Vs. International Bulk Carrier SPA & 2 Others case, it has been urged that according to article 165(5)(b) of the Constitution, this Honourable Court is deprived of jurisdiction to entertain matters within the jurisdiction of the Employment and Labour Relations Court.
26. Article 165(5) (b) of the Constitution reads as follows:
The High Court shall not have jurisdiction in respect of matters—
(a)…
(b) falling within the jurisdiction of the courts contemplated in Article 162(2).
27. Article 162 (2) to which reference has been made in article 162(5)(b) reads as follows:
Parliament shall establish courts with the status of the High Court to hear and determine disputes relating to—
(a) employment and labour relations; and
(b) the environment and the use and occupation of, and title to, land.
28. In Didovsky Igor & 11 Others Vs. International Bulk Carrier SPA & 2 Others (1015) eKR, it would appear that the court, on its own motion, transferred the suit before it to the Employment and Labour Relations Court. Unlike in the instant case, the question whether the court was properly seized of jurisdiction to entertain the dispute before it was never argued and a determination made.
29. Without arguments and a reasoned determination, that case is of little precedent value to this case. The mere fact of transfer of a case, by a judge of coordinate jurisdiction, from one court to another, is not, of itself, sufficient to compel me, to follow the example, so to speak, and down tools. Needless to say, even if a reasoned determination had been made, it would only go as far as being persuasive so that I would be entitled to depart from it if I have reasons to.
30. I am minded that when Didovsky Igor & 11 others v International Bulk Carrier Spa & 2 others (supra) finally landed in the Employment and Labour Relations Court, Rika, J. asserted the jurisdiction of that court over the dispute and noted, inter alia, that:
“61. The continued reliance on the procedure of the High Court of England in dealing with our admiralty matters, appears to this Court out-dated. There have been calls for amendment of Section 4 of the Judicature Act, and for development of homegrown admiralty legal regime.”
31. Perhaps, because of what my learned brother understood to be the inadequacies associated with section 4 of the Judicature Act, hence the call for its amendment, he held that where there is a composite admiralty claim part of which is a claim for wages, the then Industrial Court, now the Employment and Labour Relations Court, would assume jurisdiction and there would be no need for a truncated approach. The truncated approach in this instance meant that one claim being lodged in the High Court while another being filed in the Employment and Labour Relations Court.
32. In the learned judge’s words:
65. “…the claimants should have filed their admiralty claims for recovery of wages and repatriation expenses as well as the present claim for damages, under one single Cause, at the Industrial Court. The subject matter of the claims that were litigated at the High Court in its admiralty jurisdiction- employment wages- is a core subject of the jurisdiction of the Industrial Court. Recovery of wages should not have been severed from the present claim and pursued in a different Court.”
33. It is important to bear in mind that jurisdiction on matters admiralty is conferred not by the procedure of the High Court of England but by section 4 of the Judicature Act. It is the manner of exercise of the admiralty jurisdiction that should be as in the High Court in England, and in conformity with international laws and the comity of nations. (See section 4 (2) of the Judicature Act).
34. Subject to my reservations about the danger of truncated approach to admiralty claims, and which I have illustrated later in this ruling, it is up to the legislature, if in its view it is necessary, to amend and align section 4 of the Judicature Act together with the section 12 of the Employment and Labour Relations Act and confer certain aspects of admiralty jurisdiction to the Employment and Labour Relations Court. However, in the current scheme of things, neither of these two provisions of the law confer the jurisdiction to the Employment and Labour Relations Court.
35. While I agree with my learned brother that there is no basis for a truncated approach in an admiralty action in a composite claim, I respectfully disagree that the Employment and Labour Relations Court should assume jurisdiction in an otherwise admiralty action only because a demand for wages is part of the composite claim.
36. Turning to article 162(2) (b) of the Constitution, it ought to be read with article 162(3) in order to appreciate its import. Article 162(3) reads as follows:
(3). Parliament shall determine the jurisdiction and functions of the courts contemplated in clause (2).
37. The Employment and Labour Relations Court is, of course, one of the two courts contemplated under clause (2) of article 162. As earlier noted, Parliament has determined the jurisdiction of that court in section 12 of the Employment and Labour Relations Court Act.
38. It is obvious from that section that Employment and Labour Relations Court does not have jurisdiction over admiralty matters. The only court that has admiralty jurisdiction is, of course, this Honourable Court. It has been noted that under section 4 of the Judicature Act, admiralty matters, amongst other matters for which this Honourable Court is seized of jurisdiction, include claim for wages. Section 4 of the Judicature should be viewed from the perspective of article 165 (3) (e) of the Constitution that the jurisdiction of this Honourable Court is not just that circumscribed by the Constitution but that the court has “any other jurisdiction, original or appellate, conferred on it by legislation.”
39. In my humble opinion, “wages”, in the context of section 20 of the Senior Courts Act, 1981 is more than an employment and labour relations matter, for which only the Employment and Labour Relations Court is established to interrogate in the event of a dispute. As along as the claim for wages involves a ship or vessel or is maritime oriented, the claim acquires the status of an admiralty matter and which, only this Honourable Court is vested with the requisite jurisdiction to oversee whenever a dispute arises.
40. This is why “any claim by a master or member of the crew of a ship for wages (including any sum allotted out of wages or adjudged by a superintendent to be due by way of wages) or any claim by a master, shipper, charterer or agent in respect of disbursements made on account of a ship” is not prescribed as an employment and labour relations matter under section 12 of the Employment and Labour Relations Act; it is an admiralty matter under section 20 (2) (o) and (p) of the Senior Courts Act, 1981.
41. I held in the Priyantha & 8 others v Owners of the Vessel “FV Maab Aqua 2'' & another case (supra) that in assuming jurisdiction in that case and issuing orders to arrest the ship, this Honourable Court could not be said to have usurped the jurisdiction of the Employment and Labour Relations Court and most, importantly, that it failed to give due regard to article 162(5) of the Constitution.
42. I held further that if one was to consider the question of the claimant’s claim for wages from the narrow perspective that it is an employment and labour relations matter, there would be a genuine and legitimate ground to doubt this Honourable Court’s assumption of jurisdiction over the claim. But if the question is considered strictly on the understanding that, beyond what would ordinarily be an employment and labour relations matter, the claim is an admiralty action under section 20 (2) (o) and (p) of the Senior Court Act, 1981, then the issue of usurpation of jurisdiction would not arise. Neither can it be urged that this Honourable Court is deprived of jurisdiction to entertain this claim by dint of article 165(5) (b) of the Constitution.
43. For the same reason and, in the same breath, I was not persuaded by the applicant’s submission in the Priyantha & 8 others v Owners of the Vessel “FV Maab Aqua 2'' & another case (supra) that for purposes of clothing the Employment and Labour Relations Court with the requisite jurisdiction to entertain this claim, “articles 162(2)(a) and 165(5)(b) of the Constitution altered, amended and adapted Section 4 of the Judicature Act, Cap 8, Laws of Kenya, by
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