1. In the admiralty claim dated 2 April 2025, the claimants sought to orders whose prayers were captured as follows:
“A. Judgment, jointly and severally against the defendants, in the sum of Kes.4,590,000 for unpaid wages in terms of the various contracts up to the date of instituting this claim in terms of the various contracts.
B. Judgment, jointly and severally against the defendants, for the unpaid wages in terms of the various contracts from the date of instituting this claim to the date of the sale of the vessel F.V. MAAB AQUA 2 or until payment in full, whichever is the earlier.
C. Judgment, jointly and severally against the defendants, in the sum of US$5,000 being disbursements by the 1st claimant.
D. Judgment, jointly and severally against the defendants, in the sum of Kes.74,879.67 being special damages incurred by the 5th claimant.
E. Judgment, jointly and severally against the defendants, in the sum of US$17,250 being the repatriation costs for the claimants to their various countries.
F. Judgment, jointly and severally against the defendants, for general damages for the predicament faced by the claimants, including the arrest of the claimants in Madagascar
G. Costs of this claim.
H. Interest pursuant to section 35A of the Senior Courts Act, 1981 of England and/or under the inherent jurisdiction of this Honourable Court on A, B, C, D, E and F.
I. Arrest of the vessel F.V. MAAB AQUA 2 as security for A, B, C, D, E, F and G.
J. Judicial Sale of the vessel F.V. MAAB AQUA 2 in default of A, B, C, D, E, F and G.”
2. The 1st claimant’s claim is for unpaid wages with respect to the vessels F.V. MAAB AQUA 1 and the claim by the 1st to 9th claimants is for seafarer’s wages and arrears of the same with respect to the vessel F.V. MAAB AQUA 1 (which is owned by the owners of the F.V. MAAB AQUA 2). The claim by the 1st claimant being a master’s claim for disbursements on behalf of the vessel F.V. MAAB AQUA 1 (which is owned by the owners of the F.V. MAAB AQUA 2) and the claim by the claimants for their repatriation costs.
3. According to the claimants, the Owners of the vessel F.V. MAAB AQUA 2 are said to be in breach of contract in that they have failed, refused or neglected to pay the claimants their wages and arrears of the same and have further failed, or neglected to pay the 2nd claimant for disbursements on behalf of the vessel F.V. MAAB AQUA 1 (which is owned by the owners of the F.V. MAAB AQUA 2).
4. The 1st claimant is a national of the Democratic Socialist Republic of Sri Lanka (Sri Lanka) and he is also the Master or Captain of the 1st vessel. The 2nd claimant has been at all material times employed as Master or Captain on the 1st vessel. The rest of the claimants are nationals of Kenya and Sri Lanka employed in various capacities on the 1st vessel.
5. The defendant was at all material times to this suit the owners of the vessel F.V. MAAB AQUA 1 registered at the port of Mombasa in the Republic of Kenya under certificate of registry number 101261 and IMO number -, length 14.25 metres and the claimants aver that the defendant has at all material times been in control of the vessel F.V. MAAB AQUA 1 and were and are at all material times to this suit the owners of F.V. MAAB AQUA 2 registered at the port of Mombasa in the Republic of Kenya under certificate of registry number 101262 and IMO number -, length 14.25 metres. The claimants aver that the defendant has, at all material times, been in control of the vessel F.V. MAAB AQUA 2.
6. The claimants aver that they were detailed to work on the vessel and receive a monthly pay for the said work. They further contend that the in breach and total disregard of the various contracts aforesaid, and also in breach of various provisions of the law, including the Maritime Labour Convention, 2006, especially regulation 2.2 of Title 2 of the said convention, the defendant has failed, neglected and/or refused to pay the claimants the wages rightfully due to them and/or failed neglected and/or refused to fully pay the claimants the wages rightfully due to them, which breach is continuing and owing to the breach of contracts/agreements as aforesaid, the claimants have suffered great loss and damage.
7. They claim damages under section 105 (1) (a) of the Merchant Shipping Act, 2009 of Kenya, section 20 (2) (o) of the Senior Courts Act, 1981 of England, regulation 2.2 of Title 2 of the Maritime Labour Convention and all enabling laws.
8. As far as jurisdiction is concerned, the claimants have pleaded as follows:
“28.The claimants aver that for the matters raised in this claim relating to the vessel F.V. MAAB AQUA 1, the Honourable court has jurisdiction, under article 3 of the 1952 International Convention for the Unification of Certain Rules Relating to the Arrest of Sea-going Ships (the Arrest Convention) as read with section 21 (4) of the Senior Courts Act, 1981, to arrest the vessel F.V. MAAB AQUA 2 and the claimants reiterate the content of paragraph 10 of this claim form.
29.The claimants aver that for the matters raised in this claim relating to the vessel F.V. MAAB AQUA 1, the Honourable court has jurisdiction, under article 3 of the 1952 International Convention for the Unification of Certain Rules Relating to the Arrest of Sea-going Ships (the Arrest Convention) as read with section 21 (4) of the Senior Courts Act, 1981, to arrest the vessel F.V. MAAB AQUA 2 and the claimants reiterate the content of paragraph 10 of this claim form.
30.The claimants aver that their claims against the 2nd defendant are claims brought under section 20 (1) (b) and (c) of the Senior Courts Act, 1981 of the United Kingdom as read with the Merchant Shipping Act, Cap 389 of Kenya.
31.The claimants further claim interest pursuant to the provisions of section 35A of the Senior Courts Act, 1981 of the United Kingdom and/or the inherent jurisdiction of this Honourable Court.
32.The claimants aver that their claims are maritime liens in accordance with the provisions of section 105 (1) (a) of the Merchant Shipping Act, 2009 of Kenya, which is the law of this Honourable Court and the law of the Registry of the vessel and under the common law of England, which section 4 of the Judicature Act, Cap 8 imports.
33.The claimants aver that the vessel F.V. MAAB AQUA 2 is currently within Kenya’s territorial waters within the meaning of article 5 of the Constitution of the Republic of Kenya, articles 2 and 3 of the United Nations Convention on the Law of the Sea, 1982 which is part of law of Kenya and section 3 of the Maritime Zones Act, Cap 371 and as such this Honourable Court has the jurisdiction to entertain try and dispose of this matter.”
9. When I considered the claimant’s application dated 3 April 2025 ex parte, on even date, I ruled as follows:
“I have read and considered the claimants' application dated 3 April 2025 filed under a certificate of urgency of even date. I am satisfied that the application is urgent and it is so certified. Subject to determination/confirmation of whether there is in force a caution against arrest of motor vessel “F.V. MAAB AQUA 2” registered in Kenya under certificate of registry 101262, a warrant is hereby issued to arrest the said motor vessel pending the hearing and determination of the applicant's application. The applicant is directed to serve the application and the claim forthwith and in any event before the close of business on 4 April 2025. The application shall be mentioned for further directions 7 April 2025. It is so ordered.”
10. The defendant, who is the applicant in this application, was aggrieved by this order and so by an application dated 23 April, 2025 it applied for the following orders:
“a. This application be certified urgent and be heard expeditiously on a priority basis.
b. The Warrants of Arrest issued against the Motor Fishing Vessel "Maab Agua 2" be set aside and that vessel be released from arrest.
c. This claim be struck out with costs for want of Jurisdiction.
d. The costs of this application be paid by the Claimants.”
11. In a ruling I delivered on 18 June 2025, I determined that this Honourable Court is seized of jurisdiction to entertain the claim. Subsequently, by an application dated 28 June 2025, the defendant sought the following orders:
“a.This application be certified extremely urgent and be heard expeditiously on a priority basis.
b. The Court be pleased to hold that the Claimants have no case against the Motor Fishing Vessel "Maab Aqua 1" or "Maab Aqua 2", to declare that the application for the arrest and custody of the Motor Fishing Vessel "Maab Aqua 2" was malicious and unlawful, to strike it out and to assess damages to be paid to the 1st Defendant by the Claimants and their Advocates.
c. The warrants of Arrest signed by Honourable Akee, Deputy Registrar for the arrest of the Motor Fishing Vessel "Maab Aqua 2” on behalf of the Chief Justice of the Republic of Kenya be nullified.
d. The Court be pleased to set aside and discharge the orders made herein for the arrest of the Motor Fishing Vessel "Maab Aqua 2" and to release that vessel from arrest unconditionally.
e. After the hearing and determination of this application on the release of the Motor Fishing Vessel "Maab Aqua 2" all further proceedings in this claim be stayed pending the hearing and determination of Mombasa Civil Appeal No..... of 2025.
f. The costs of this application be paid by the Claimants.”
12. The application is supported by the affidavit of Wanninayake Mudiyanselage Shihan Lakshitha who has sworn that he is the Operations Manager of the Defendant, Maab Aqua Limited, the registered owners of the Motor Fishing Vessel "Maab Aqua 2".
13. The basis of the defendant’s application is that all warrants of arrest in Admiralty Claims are given in the name of the President and Commander in Chief of the Republic of Kenya and are signed by a Judge of the High Court on behalf of the Chief Justice and President of the Supreme Court. They are not signed by the Admiralty Marshal as they constitute a command to the Admiralty Marshal to arrest the vessel. The Admiralty Marshal cannot command himself. Accordingly, the Warrants of Arrest as signed are null and void and ought not to have been executed.
14. It is also contended that the person that signed the Warrant of Arrest is not Honourable Kalo, Admiralty Marshal, and, since they were not signed by the Admiralty Marshal, they constitute a forgery and are to that extent null and void. Forged Court documents cannot be the basis for arresting and holding the Motor Fishing Vessel "Maab Aqua 2".
15. Also, the Resident Judge at Mombasa, seized of this claim did not appoint a Deputy Marshal under Rule 5 of the High Court (Admiralty) Rules contained in the Judicature Act. In any case, the person who signed the Warrants of Arrest did so without lawful authority and those Warrants are, therefore, null and void.
16. The defendant also contends that the claimants are fishers within the meaning of Section 2 of the Fisheries Management and Development Act. They are not seamen and, therefore, are not sailors or crew on board any cargo ship. If they were seamen they would have exhibited Discharge Certificates otherwise called “Seamen's Books”. Only the 5ᵗʰ Claimant held a Seaman Book which was not relevant to a fisher conducting fishing activities in Kenyan territorial or fisheries waters.
17. It is also pleaded that the Motor Fishing Vessel "Maab Aqua l" was equipped with equipment to warn the Claimants that they were leaving Kenyan territorial waters. The same equipment would have warned Kenya Fisheries Service, together with the Kenya Maritime Authority and Maab Aqua Limited that the vessel was moving beyond Kenyan waters but the Claimants criminally switched off the Vessel Monitoring System and all communications gear and vessel locator equipment on board to defeat the Provisions of the Fisheries Management and Development Act and International Laws to avoid detection.
18. The claimants then sailed to Madagascar to conduct illegal fishing activities for their own personal profit and hence incurring a direct loss to the defendant.
19. The claim is also said to be based on false allegation by the Claimants and their Advocates that the "Maab Aqua 1" was sailing near the Kenyan ocean boarder with Madagascar and that the vessel veered into Madagascar. The Republic of Kenya does not share an ocean boarder with Madagascar as Kenya is located on the Eastern Coast of Africa along the Indian Ocean, while Madagascar is an Island nation situated Southeast of Kenya across the Indian Ocean. The 2 countries are separated by open sea and there is no direct maritime border between them.
20. Madagascar lies several hundred kilometers to the Southeast beyond the Mozambique channel. The Claimants for purposes of illegal fishing and in violation of Kenyan and Madagascar laws illegally entered into Madagascar to conduct illegal fishing of sharks in Madagascar fishery waters.
21. Hence, the Court cannot be asked to order the Claimants to be compensated for their crimes committed against the Fisheries Management and Development Act and Regulations, the Laws of Madagascar and International Law. The Court should not be seen to be facilitating crimes against domestic and international law.
22. Further it is contended that the Claimants failed to specify the amount of the security required for the claim in violation of the Practice Directions and the High Court had no jurisdiction to order the arrest of the Motor Fishing Vessel "Maab Aqua 2". In the absence of the amount of security for which the Vessel was arrested the orders for the arrest of that Vessel are null and void. The Claimants failed to disclose the amount of security sought as there are no wages due to the Claimants from the Motor Fishing Vessel "Maab Aqua 1".
23. Because the Claimants in violation of Kenyan and International Law escaped with the Fishing Vessel "Maab Aqua 1" to Madagascar where they conducted illegal fishing and they, together with the Vessel "Maab Aqua 1" were arrested and detained by the Authorities in Madagascar and the penalties to be paid by Maab Aqua Limited for the release of "Maab Aqua l" by the Malagasy Authorities range between Kshs. 26,000,000.00 and Kshs. 61,000,000.00.
24. It is the defendant’s position that the Claimants cannot benefit from their crimes that are directly responsible for the loss of the Motor Vessel "Maab Aqua 1". Having considered that the Motor Fishing Vessel "Maab Aqua 1" was acquired at Kshs. 15,000,000.00 Maab Aqua Limited could not spend more than double that amount to recover the Vessel and made the painful decision to abandon it at Nosy Bay in Madagascar.
25. The Defendant is not liable for the arrest and detention of the Claimants in Madagascar from 8.7.2024 to 8.10.2024 nor are the Defendants responsible for payment of any wages during and after that period. he Claimants failed to inform the 1st Defendant and Kenya Fisheries service that they had left Kenyan waters and were headed to conduct illegal fishing in different jurisdictions.
26. Payment of any money to the claimants was conditional upon catching fish, landing it at authorized fish landing sites in Kenya and handing it over to Maab Aqua Limited. Instead, the Claimants did not land any fish in Kenya for the benefit of Maab Aqua Limited in any of the fishing voyages. There was, therefore, no consideration.
27. It is a custom in the fishing industry that instead of paying fixed wages the fishers are paid a proportion of the proceeds of sale of the catch after the employer or owner of the Fishing Vessel deducts all expenses in financing the fishing voyage. This, it is contended, is the difference between employment of fishers onboard fishing vessels and employment of crew in cargo ships, tug boats and other ships used in sea trade.
28. Further, in the declaration for arrest and custody of the Motor Fishing Vessel "Maab Aqua l" the Claimants' Advocate Mr. Ousa Okello did not disclose the amount of security the Claimants sought from the Defendant on the excuse that he did not know of the Admiralty Marshal's expenses. The Admiralty Marshal's expenses for service of the Warrant of Arrest through a Court Bailiff do not exceed Kshs. 10,000/-. This Honourable Court therefore ordered the arrest of the Vessel and is holding that Vessel worth Millions of Shillings on account of only Kshs. 10,000/-. According to the defendant, this is inequitable and oppressive.
29. The defendant avers that seeking and obtaining Warrants of Arrest without disclosing the amount of security demanded constitutes the use of Court process for extortion purposes. The Court could not order the lawful arrest of the vessel without specifying the amount of security for which it was ordering the arrest.
30. The illegal fishing venture by the Claimants in Madagascar caused an international incident when the Malagasy Navy intercepted and captured the vessel and the crew leading to written notification by the Embassy of the Republic of Madagascar to the Kenyan Embassy in Addis Ababa that "Maab Aqua 1" flying the Kenyan flag was intercepted by the Malagasy National Navy for carrying out undeclared, unregulated and illegal fishing activities in waters under Madagascar jurisdiction.
31. As the vessel was intercepted while her long fishing lines were duly bated and in the water the allegation by Mr. Ousa Okello in paragraphs 19 and 20 of the Claim Form that the Vessel had a broken bottom, took in water and veered off to Madagascar is false and he knew it to be false. As a matter of fact, the vessel was captured by the Malagasy National Navy with freshly caught sharks with all their fins cut off ready to be smuggled.
32. The Claimants were supposed to catch tuna. Instead of locating and catching tuna in Kenyan waters they broke Kenyan and International Law and deviated to Madagascar to catch sharks, cut their fins off and sell them for profit at sea.The Claimants, thus, committed offences under Kenyan law, international law and Malagasy law. Any payment made in their favour pursuant to any order by this Court will be liable to forfeiture under the Proceeds of Crime and Anti-Money Laundering Act.
33. It is the defendant’s position that it would be a violation of Article 10(2)(a) and (c) for the High Court to maintain the Warrant of arrest against "Maab Aqua 2" so as to enable the Claimants to benefit from their domestic and international crimes in deviating to Madagascar in order to conduct illegal fishing for their own benefit.
34. The defendant has proposed that the Court places a restriction with the Registrar of Kenyan ships to the effect that the vessel will not change ownership and will not create any mortgage or lease-and that Maab Aqua Limited will not part with possession of that vessel and that the Vessel will always return to Kenya after every fishing voyage until the appeal is heard and determined.
35. It is urged on behalf of the defendant that English Law, Advocates who sign or permit their clients to sign false Statements of Truth are responsible for the costs and other consequences including punishment for contempt of Court. Under the same law, the firm of Okello Kinyanjui & Co. LLP which filed the claim, takes responsibility for all matters of fact alleged in the Claim Form. The responsibility includes the payment of costs and damages caused to the Defendant. The counsel in the defendant’s advocates firm is said to have lied to the Honourable Court that Kenya shares an ocean border with Madagascar as part of his collusion with his clients to explain away the presence of the Maab Aqua 1 in Madagascar.
36. The 1ˢᵗ 6ᵗʰ 7ᵗʰ 8ᵗʰ and 9ᵗʰ Claimants are citizens of the Democratic Socialist Republic of Sri Lanka. They are beyond the jurisdiction of this Court for purposes of recovery of damages and costs after their application for arrest and custody of "Maab Aqua 2" is found by the Court of Appeal and/or this Court to have been malicious and unlawful. The 2ⁿᵈ, 3ʳᵈ, 4ᵗʰ and 5ᵗʰ Claimants are men of straw and will not afford to compensate the 1st Defendant for the arrest and detention of its vessel.
37. It follows that it is Okello Kinyanjui & Co. LLP that signed the false Statement of Claim and the false declaration and it is that law firm that is responsible for the payment of damages and costs. The Motor Fishing Vessel "Maab Aqua 2" has foreign and local crew on board. It is expensive to maintain them on board for a vessel that is not engaged in fishing activity.
38. The Fishing Vessel "Maab Aqua 2" is registered at the Port of Mombasa and is Kenyan owned. She will remain registered and owned by Maab Aqua Limited until the appeal is heard and determined and until further orders pursuant to the determination are made. There is therefore no need for her owners, Maab Aqua Limited, to provide additional or separate security particularly as no security was sought in the declaration for arrest and custody.
39. Mr. Odunga, the learned counsel for the claimants, swore a replying affidavit opposing the application. Counsel has sworn the arrest orders have not been set aside and neither have they been appealed against, reviewed or varied in any way.
Upon issuance of the arrest orders, the Warrants were subsequently signed by a Judicial Officer. The circumstances under which the Warrants were executed by a different Judicial Officer not in the rank of an Admiralty Marshal are beyond the litigants' control.
40. Even where the Warrants were signed by a Judicial Officer not the rank of an Admiralty Marshal, that in itself does not extinguish the arrest orders properly issued by this Court. In any event, where this was a mistake, then proper directions should be that the earlier Warrants are recalled and fresh Warrants issued bv the rightful judicial officer; the Admiralty Marshall.
41. In the Motion, the Judicial Officer is known and mentioned by name. Her signature on the Arrest Warrants cannot be forgeries, as this points to administrative blunders which should not be visited upon any litigant, in particular, the Claimants herein to say the least. In any event, the Applicant has not demonstrated how if at all, the Claimants participated in the alleged fraud.
42. To urge that the Court declares the Claimants have no cause of action against the Defendants amounts to determining the Claim summarily and contrary to the constitutional rights to fair hearing, merely on procedural technicalities. In particular, the l ˢᵗ Defendant has not informed the Court whether they have addressed the issues raised in the Claim Form, including the reliefs on the face thereof.
43. Additionally, the factual averments raised in the Motion can only be addressed at hearing, not at inter partes stage as sought herein.
44. At the hearing of the application, Mr. Kinuyua the learned counsel for the applicant, submitted that paragraph 61.5(3)(b) of the English Procedure Rules, a declaration must be filed and under paragraph 61.5(3)(c) the declaration must be verified by a statement of truth. The amount of security must be stated and if not the ship cannot be arrested. In any event Mr. Okello for the claimant was not authorised to sign the statement. Karisa, who is one of the claimants is the person who ought to have signed the statement.
45. Like Mr. Okello, Mr. Odunga, the learned counsel who took over for the claimants brief from Mr. Okello’s firm, did not have authority to make the declaration.
46. The learned counsel for the defendant also urged that he had filed an appeal in the Court of Appeal against the ruling of the court delivered on 18 June 2025. The appeal is said to have been registered as appeal no. 114 of 2025. Counsel submitted that there is no provision for appeal against the order for arrest of the vessel. On the question of signing the warrant of arrest by an improper officer, the learned counsel admitted that the wrongly signed warrant could be replaced with a warrant properly signed by a proper officer.
47. On his part, Mr. Odunga, urged that the amount of security can only be stated if known and that there is nothing that bars a party from making a subsequent declaration of the amount of security. Counsel reiterated that the order for the arrest of the vessel has not been appealed against and that the signature of the deputy registrar that can be rectified. Further, there is no evidence of forgery. It was also urged that the only security available for satisfaction of the claimants’ claim is the vessel.
48. Having considered the application and the response thereto and respective counsel’s submissions, I must state at the outset that the factual grounds upon which the application has been made are largely made up of contentious issues that cannot be resolved on the basis of affidavit evidence. It will be necessary for this Honourable Court to hear the witnesses and weigh their answers upon cross-examination on their depositions in order for it to reach conclusive findings on facts or disputed evidence. Suffice to say, it would be premature to grant the orders in the application if the basis upon which they are sought are contested facts the determination of which has to await the full hearing of the claimant’s claim.
49. On the question of signing of the warrant of arrest, it is not in dispute that the warrant was signed by the Honourable Akee and not Hon. Kalo, who is the duly gazetted Admiralty Marshall. But the fact that the warrant was signed by an unauthorised officer does not, of itself, invalidate the legal basis upon which this Honourable Court granted the order for the arrest of the ship. Until it is discharged, set aside or overturned, this Honourable Court’s order which is the basis upon which the warrant of arrest was issued, remains a valid order.
50. The signing of the order by a person other than the gazetted admiralty marshal was no more than an administrative lapse on the part of the court registry, a mistake that could easily have been corrected if the warrant of arrest erroneously signed by Honourable Akee was returned to registry and replaced with a properly signed warrant.
51. A more fundamental question that has been raised in this application is whether these proceedings ought to be stayed considering that the defendant has appealed to the Court of Appeal against the decision of this Honourable Court of 18 June 2025 in which I held that the court is seized of jurisdiction to dispose of the claim.
Among other determinations that the Court of Appeal may come to, either of the two outcomes is possible: that my ruling of 18 June 2025 is set aside or overturned and this Honourable Court is found to be without jurisdiction to determine the claimant’s claim or my decision is affirmed.
52. If the court of Appeal was to come to the conclusion that this Honourable Court lacks jurisdiction, any proceedings towards the determination of the claimants’ claim would turn out to have been an exercise in futility. It is, therefore, prudent that the proceedings be stayed pending the determination of the defendant’s appeal.
53. Since the arrest of the ship has been questioned on the ground that this Honourable Court does not have jurisdiction, I cannot lift the warrant until the question of jurisdiction has been determined. Nonetheless, the defendant has the option of providing a bank guarantee as security in leu of the vessel in which event the order for arrest of the vessel would be discharged and the vessel released, accordingly.
54. One final thing I need to say is that the defendant acknowledged service of the claim and duly contested it on the basis of this court’s want of jurisdiction. By a ruling delivered by this Honourable Court on 18 June 2025, the defendant was overruled. There is nothing to suggest that notwithstanding the ruling of this Honourable court, the defendant has submitted itself to the jurisdiction of the court in order to defend itself against the suit.
55. Of course, the defendant has no obligation to submit itself to the court’s jurisdiction having escalated the question of jurisdiction to the Court of Appeal. But in the same breath, the defendant cannot proceed and ask of this court determination of questions that can only be determined once it has submitted itself to the jurisdiction of the Honourable Court. I cannot, therefore, delve in detail, into the issues raised by the defendant in this application. The Honourable Court cannot proceed with this matter as if the defendant has submitted itself to the jurisdiction of this Honourable Court when the question of jurisdiction is pending determination in the Court of Appeal.
56. For the foregoing reasons, except for the order of staying proceedings and the defendant’s option to provide alternative security for the settlement of the claimant’s claim in the event it succeeds, the defendant’s application is dismissed. Costs will abide the outcome of the claim. It is so ordered.
“A. Judgment, jointly and severally against the defendants, in the sum of Kes.4,590,000 for unpaid wages in terms of the various contracts up to the date of instituting this claim in terms of the various contracts.
B. Judgment, jointly and severally against the defendants, for the unpaid wages in terms of the various contracts from the date of instituting this claim to the date of the sale of the vessel F.V. MAAB AQUA 2 or until payment in full, whichever is the earlier.
C. Judgment, jointly and severally against the defendants, in the sum of US$5,000 being disbursements by the 1st claimant.
D. Judgment, jointly and severally against the defendants, in the sum of Kes.74,879.67 being special damages incurred by the 5th claimant.
E. Judgment, jointly and severally against the defendants, in the sum of US$17,250 being the repatriation costs for the claimants to their various countries.
F. Judgment, jointly and severally against the defendants, for general damages for the predicament faced by the claimants, including the arrest of the claimants in Madagascar
G. Costs of this claim.
H. Interest pursuant to section 35A of the Senior Courts Act, 1981 of England and/or under the inherent jurisdiction of this Honourable Court on A, B, C, D, E and F.
I. Arrest of the vessel F.V. MAAB AQUA 2 as security for A, B, C, D, E, F and G.
J. Judicial Sale of the vessel F.V. MAAB AQUA 2 in default of A, B, C, D, E, F and G.”
2. The 1st claimant’s claim is for unpaid wages with respect to the vessels F.V. MAAB AQUA 1 and the claim by the 1st to 9th claimants is for seafarer’s wages and arrears of the same with respect to the vessel F.V. MAAB AQUA 1 (which is owned by the owners of the F.V. MAAB AQUA 2). The claim by the 1st claimant being a master’s claim for disbursements on behalf of the vessel F.V. MAAB AQUA 1 (which is owned by the owners of the F.V. MAAB AQUA 2) and the claim by the claimants for their repatriation costs.
3. According to the claimants, the Owners of the vessel F.V. MAAB AQUA 2 are said to be in breach of contract in that they have failed, refused or neglected to pay the claimants their wages and arrears of the same and have further failed, or neglected to pay the 2nd claimant for disbursements on behalf of the vessel F.V. MAAB AQUA 1 (which is owned by the owners of the F.V. MAAB AQUA 2).
4. The 1st claimant is a national of the Democratic Socialist Republic of Sri Lanka (Sri Lanka) and he is also the Master or Captain of the 1st vessel. The 2nd claimant has been at all material times employed as Master or Captain on the 1st vessel. The rest of the claimants are nationals of Kenya and Sri Lanka employed in various capacities on the 1st vessel.
5. The defendant was at all material times to this suit the owners of the vessel F.V. MAAB AQUA 1 registered at the port of Mombasa in the Republic of Kenya under certificate of registry number 101261 and IMO number -, length 14.25 metres and the claimants aver that the defendant has at all material times been in control of the vessel F.V. MAAB AQUA 1 and were and are at all material times to this suit the owners of F.V. MAAB AQUA 2 registered at the port of Mombasa in the Republic of Kenya under certificate of registry number 101262 and IMO number -, length 14.25 metres. The claimants aver that the defendant has, at all material times, been in control of the vessel F.V. MAAB AQUA 2.
6. The claimants aver that they were detailed to work on the vessel and receive a monthly pay for the said work. They further contend that the in breach and total disregard of the various contracts aforesaid, and also in breach of various provisions of the law, including the Maritime Labour Convention, 2006, especially regulation 2.2 of Title 2 of the said convention, the defendant has failed, neglected and/or refused to pay the claimants the wages rightfully due to them and/or failed neglected and/or refused to fully pay the claimants the wages rightfully due to them, which breach is continuing and owing to the breach of contracts/agreements as aforesaid, the claimants have suffered great loss and damage.
7. They claim damages under section 105 (1) (a) of the Merchant Shipping Act, 2009 of Kenya, section 20 (2) (o) of the Senior Courts Act, 1981 of England, regulation 2.2 of Title 2 of the Maritime Labour Convention and all enabling laws.
8. As far as jurisdiction is concerned, the claimants have pleaded as follows:
“28.The claimants aver that for the matters raised in this claim relating to the vessel F.V. MAAB AQUA 1, the Honourable court has jurisdiction, under article 3 of the 1952 International Convention for the Unification of Certain Rules Relating to the Arrest of Sea-going Ships (the Arrest Convention) as read with section 21 (4) of the Senior Courts Act, 1981, to arrest the vessel F.V. MAAB AQUA 2 and the claimants reiterate the content of paragraph 10 of this claim form.
29.The claimants aver that for the matters raised in this claim relating to the vessel F.V. MAAB AQUA 1, the Honourable court has jurisdiction, under article 3 of the 1952 International Convention for the Unification of Certain Rules Relating to the Arrest of Sea-going Ships (the Arrest Convention) as read with section 21 (4) of the Senior Courts Act, 1981, to arrest the vessel F.V. MAAB AQUA 2 and the claimants reiterate the content of paragraph 10 of this claim form.
30.The claimants aver that their claims against the 2nd defendant are claims brought under section 20 (1) (b) and (c) of the Senior Courts Act, 1981 of the United Kingdom as read with the Merchant Shipping Act, Cap 389 of Kenya.
31.The claimants further claim interest pursuant to the provisions of section 35A of the Senior Courts Act, 1981 of the United Kingdom and/or the inherent jurisdiction of this Honourable Court.
32.The claimants aver that their claims are maritime liens in accordance with the provisions of section 105 (1) (a) of the Merchant Shipping Act, 2009 of Kenya, which is the law of this Honourable Court and the law of the Registry of the vessel and under the common law of England, which section 4 of the Judicature Act, Cap 8 imports.
33.The claimants aver that the vessel F.V. MAAB AQUA 2 is currently within Kenya’s territorial waters within the meaning of article 5 of the Constitution of the Republic of Kenya, articles 2 and 3 of the United Nations Convention on the Law of the Sea, 1982 which is part of law of Kenya and section 3 of the Maritime Zones Act, Cap 371 and as such this Honourable Court has the jurisdiction to entertain try and dispose of this matter.”
9. When I considered the claimant’s application dated 3 April 2025 ex parte, on even date, I ruled as follows:
“I have read and considered the claimants' application dated 3 April 2025 filed under a certificate of urgency of even date. I am satisfied that the application is urgent and it is so certified. Subject to determination/confirmation of whether there is in force a caution against arrest of motor vessel “F.V. MAAB AQUA 2” registered in Kenya under certificate of registry 101262, a warrant is hereby issued to arrest the said motor vessel pending the hearing and determination of the applicant's application. The applicant is directed to serve the application and the claim forthwith and in any event before the close of business on 4 April 2025. The application shall be mentioned for further directions 7 April 2025. It is so ordered.”
10. The defendant, who is the applicant in this application, was aggrieved by this order and so by an application dated 23 April, 2025 it applied for the following orders:
“a. This application be certified urgent and be heard expeditiously on a priority basis.
b. The Warrants of Arrest issued against the Motor Fishing Vessel "Maab Agua 2" be set aside and that vessel be released from arrest.
c. This claim be struck out with costs for want of Jurisdiction.
d. The costs of this application be paid by the Claimants.”
11. In a ruling I delivered on 18 June 2025, I determined that this Honourable Court is seized of jurisdiction to entertain the claim. Subsequently, by an application dated 28 June 2025, the defendant sought the following orders:
“a.This application be certified extremely urgent and be heard expeditiously on a priority basis.
b. The Court be pleased to hold that the Claimants have no case against the Motor Fishing Vessel "Maab Aqua 1" or "Maab Aqua 2", to declare that the application for the arrest and custody of the Motor Fishing Vessel "Maab Aqua 2" was malicious and unlawful, to strike it out and to assess damages to be paid to the 1st Defendant by the Claimants and their Advocates.
c. The warrants of Arrest signed by Honourable Akee, Deputy Registrar for the arrest of the Motor Fishing Vessel "Maab Aqua 2” on behalf of the Chief Justice of the Republic of Kenya be nullified.
d. The Court be pleased to set aside and discharge the orders made herein for the arrest of the Motor Fishing Vessel "Maab Aqua 2" and to release that vessel from arrest unconditionally.
e. After the hearing and determination of this application on the release of the Motor Fishing Vessel "Maab Aqua 2" all further proceedings in this claim be stayed pending the hearing and determination of Mombasa Civil Appeal No..... of 2025.
f. The costs of this application be paid by the Claimants.”
12. The application is supported by the affidavit of Wanninayake Mudiyanselage Shihan Lakshitha who has sworn that he is the Operations Manager of the Defendant, Maab Aqua Limited, the registered owners of the Motor Fishing Vessel "Maab Aqua 2".
13. The basis of the defendant’s application is that all warrants of arrest in Admiralty Claims are given in the name of the President and Commander in Chief of the Republic of Kenya and are signed by a Judge of the High Court on behalf of the Chief Justice and President of the Supreme Court. They are not signed by the Admiralty Marshal as they constitute a command to the Admiralty Marshal to arrest the vessel. The Admiralty Marshal cannot command himself. Accordingly, the Warrants of Arrest as signed are null and void and ought not to have been executed.
14. It is also contended that the person that signed the Warrant of Arrest is not Honourable Kalo, Admiralty Marshal, and, since they were not signed by the Admiralty Marshal, they constitute a forgery and are to that extent null and void. Forged Court documents cannot be the basis for arresting and holding the Motor Fishing Vessel "Maab Aqua 2".
15. Also, the Resident Judge at Mombasa, seized of this claim did not appoint a Deputy Marshal under Rule 5 of the High Court (Admiralty) Rules contained in the Judicature Act. In any case, the person who signed the Warrants of Arrest did so without lawful authority and those Warrants are, therefore, null and void.
16. The defendant also contends that the claimants are fishers within the meaning of Section 2 of the Fisheries Management and Development Act. They are not seamen and, therefore, are not sailors or crew on board any cargo ship. If they were seamen they would have exhibited Discharge Certificates otherwise called “Seamen's Books”. Only the 5ᵗʰ Claimant held a Seaman Book which was not relevant to a fisher conducting fishing activities in Kenyan territorial or fisheries waters.
17. It is also pleaded that the Motor Fishing Vessel "Maab Aqua l" was equipped with equipment to warn the Claimants that they were leaving Kenyan territorial waters. The same equipment would have warned Kenya Fisheries Service, together with the Kenya Maritime Authority and Maab Aqua Limited that the vessel was moving beyond Kenyan waters but the Claimants criminally switched off the Vessel Monitoring System and all communications gear and vessel locator equipment on board to defeat the Provisions of the Fisheries Management and Development Act and International Laws to avoid detection.
18. The claimants then sailed to Madagascar to conduct illegal fishing activities for their own personal profit and hence incurring a direct loss to the defendant.
19. The claim is also said to be based on false allegation by the Claimants and their Advocates that the "Maab Aqua 1" was sailing near the Kenyan ocean boarder with Madagascar and that the vessel veered into Madagascar. The Republic of Kenya does not share an ocean boarder with Madagascar as Kenya is located on the Eastern Coast of Africa along the Indian Ocean, while Madagascar is an Island nation situated Southeast of Kenya across the Indian Ocean. The 2 countries are separated by open sea and there is no direct maritime border between them.
20. Madagascar lies several hundred kilometers to the Southeast beyond the Mozambique channel. The Claimants for purposes of illegal fishing and in violation of Kenyan and Madagascar laws illegally entered into Madagascar to conduct illegal fishing of sharks in Madagascar fishery waters.
21. Hence, the Court cannot be asked to order the Claimants to be compensated for their crimes committed against the Fisheries Management and Development Act and Regulations, the Laws of Madagascar and International Law. The Court should not be seen to be facilitating crimes against domestic and international law.
22. Further it is contended that the Claimants failed to specify the amount of the security required for the claim in violation of the Practice Directions and the High Court had no jurisdiction to order the arrest of the Motor Fishing Vessel "Maab Aqua 2". In the absence of the amount of security for which the Vessel was arrested the orders for the arrest of that Vessel are null and void. The Claimants failed to disclose the amount of security sought as there are no wages due to the Claimants from the Motor Fishing Vessel "Maab Aqua 1".
23. Because the Claimants in violation of Kenyan and International Law escaped with the Fishing Vessel "Maab Aqua 1" to Madagascar where they conducted illegal fishing and they, together with the Vessel "Maab Aqua 1" were arrested and detained by the Authorities in Madagascar and the penalties to be paid by Maab Aqua Limited for the release of "Maab Aqua l" by the Malagasy Authorities range between Kshs. 26,000,000.00 and Kshs. 61,000,000.00.
24. It is the defendant’s position that the Claimants cannot benefit from their crimes that are directly responsible for the loss of the Motor Vessel "Maab Aqua 1". Having considered that the Motor Fishing Vessel "Maab Aqua 1" was acquired at Kshs. 15,000,000.00 Maab Aqua Limited could not spend more than double that amount to recover the Vessel and made the painful decision to abandon it at Nosy Bay in Madagascar.
25. The Defendant is not liable for the arrest and detention of the Claimants in Madagascar from 8.7.2024 to 8.10.2024 nor are the Defendants responsible for payment of any wages during and after that period. he Claimants failed to inform the 1st Defendant and Kenya Fisheries service that they had left Kenyan waters and were headed to conduct illegal fishing in different jurisdictions.
26. Payment of any money to the claimants was conditional upon catching fish, landing it at authorized fish landing sites in Kenya and handing it over to Maab Aqua Limited. Instead, the Claimants did not land any fish in Kenya for the benefit of Maab Aqua Limited in any of the fishing voyages. There was, therefore, no consideration.
27. It is a custom in the fishing industry that instead of paying fixed wages the fishers are paid a proportion of the proceeds of sale of the catch after the employer or owner of the Fishing Vessel deducts all expenses in financing the fishing voyage. This, it is contended, is the difference between employment of fishers onboard fishing vessels and employment of crew in cargo ships, tug boats and other ships used in sea trade.
28. Further, in the declaration for arrest and custody of the Motor Fishing Vessel "Maab Aqua l" the Claimants' Advocate Mr. Ousa Okello did not disclose the amount of security the Claimants sought from the Defendant on the excuse that he did not know of the Admiralty Marshal's expenses. The Admiralty Marshal's expenses for service of the Warrant of Arrest through a Court Bailiff do not exceed Kshs. 10,000/-. This Honourable Court therefore ordered the arrest of the Vessel and is holding that Vessel worth Millions of Shillings on account of only Kshs. 10,000/-. According to the defendant, this is inequitable and oppressive.
29. The defendant avers that seeking and obtaining Warrants of Arrest without disclosing the amount of security demanded constitutes the use of Court process for extortion purposes. The Court could not order the lawful arrest of the vessel without specifying the amount of security for which it was ordering the arrest.
30. The illegal fishing venture by the Claimants in Madagascar caused an international incident when the Malagasy Navy intercepted and captured the vessel and the crew leading to written notification by the Embassy of the Republic of Madagascar to the Kenyan Embassy in Addis Ababa that "Maab Aqua 1" flying the Kenyan flag was intercepted by the Malagasy National Navy for carrying out undeclared, unregulated and illegal fishing activities in waters under Madagascar jurisdiction.
31. As the vessel was intercepted while her long fishing lines were duly bated and in the water the allegation by Mr. Ousa Okello in paragraphs 19 and 20 of the Claim Form that the Vessel had a broken bottom, took in water and veered off to Madagascar is false and he knew it to be false. As a matter of fact, the vessel was captured by the Malagasy National Navy with freshly caught sharks with all their fins cut off ready to be smuggled.
32. The Claimants were supposed to catch tuna. Instead of locating and catching tuna in Kenyan waters they broke Kenyan and International Law and deviated to Madagascar to catch sharks, cut their fins off and sell them for profit at sea.The Claimants, thus, committed offences under Kenyan law, international law and Malagasy law. Any payment made in their favour pursuant to any order by this Court will be liable to forfeiture under the Proceeds of Crime and Anti-Money Laundering Act.
33. It is the defendant’s position that it would be a violation of Article 10(2)(a) and (c) for the High Court to maintain the Warrant of arrest against "Maab Aqua 2" so as to enable the Claimants to benefit from their domestic and international crimes in deviating to Madagascar in order to conduct illegal fishing for their own benefit.
34. The defendant has proposed that the Court places a restriction with the Registrar of Kenyan ships to the effect that the vessel will not change ownership and will not create any mortgage or lease-and that Maab Aqua Limited will not part with possession of that vessel and that the Vessel will always return to Kenya after every fishing voyage until the appeal is heard and determined.
35. It is urged on behalf of the defendant that English Law, Advocates who sign or permit their clients to sign false Statements of Truth are responsible for the costs and other consequences including punishment for contempt of Court. Under the same law, the firm of Okello Kinyanjui & Co. LLP which filed the claim, takes responsibility for all matters of fact alleged in the Claim Form. The responsibility includes the payment of costs and damages caused to the Defendant. The counsel in the defendant’s advocates firm is said to have lied to the Honourable Court that Kenya shares an ocean border with Madagascar as part of his collusion with his clients to explain away the presence of the Maab Aqua 1 in Madagascar.
36. The 1ˢᵗ 6ᵗʰ 7ᵗʰ 8ᵗʰ and 9ᵗʰ Claimants are citizens of the Democratic Socialist Republic of Sri Lanka. They are beyond the jurisdiction of this Court for purposes of recovery of damages and costs after their application for arrest and custody of "Maab Aqua 2" is found by the Court of Appeal and/or this Court to have been malicious and unlawful. The 2ⁿᵈ, 3ʳᵈ, 4ᵗʰ and 5ᵗʰ Claimants are men of straw and will not afford to compensate the 1st Defendant for the arrest and detention of its vessel.
37. It follows that it is Okello Kinyanjui & Co. LLP that signed the false Statement of Claim and the false declaration and it is that law firm that is responsible for the payment of damages and costs. The Motor Fishing Vessel "Maab Aqua 2" has foreign and local crew on board. It is expensive to maintain them on board for a vessel that is not engaged in fishing activity.
38. The Fishing Vessel "Maab Aqua 2" is registered at the Port of Mombasa and is Kenyan owned. She will remain registered and owned by Maab Aqua Limited until the appeal is heard and determined and until further orders pursuant to the determination are made. There is therefore no need for her owners, Maab Aqua Limited, to provide additional or separate security particularly as no security was sought in the declaration for arrest and custody.
39. Mr. Odunga, the learned counsel for the claimants, swore a replying affidavit opposing the application. Counsel has sworn the arrest orders have not been set aside and neither have they been appealed against, reviewed or varied in any way.
Upon issuance of the arrest orders, the Warrants were subsequently signed by a Judicial Officer. The circumstances under which the Warrants were executed by a different Judicial Officer not in the rank of an Admiralty Marshal are beyond the litigants' control.
40. Even where the Warrants were signed by a Judicial Officer not the rank of an Admiralty Marshal, that in itself does not extinguish the arrest orders properly issued by this Court. In any event, where this was a mistake, then proper directions should be that the earlier Warrants are recalled and fresh Warrants issued bv the rightful judicial officer; the Admiralty Marshall.
41. In the Motion, the Judicial Officer is known and mentioned by name. Her signature on the Arrest Warrants cannot be forgeries, as this points to administrative blunders which should not be visited upon any litigant, in particular, the Claimants herein to say the least. In any event, the Applicant has not demonstrated how if at all, the Claimants participated in the alleged fraud.
42. To urge that the Court declares the Claimants have no cause of action against the Defendants amounts to determining the Claim summarily and contrary to the constitutional rights to fair hearing, merely on procedural technicalities. In particular, the l ˢᵗ Defendant has not informed the Court whether they have addressed the issues raised in the Claim Form, including the reliefs on the face thereof.
43. Additionally, the factual averments raised in the Motion can only be addressed at hearing, not at inter partes stage as sought herein.
44. At the hearing of the application, Mr. Kinuyua the learned counsel for the applicant, submitted that paragraph 61.5(3)(b) of the English Procedure Rules, a declaration must be filed and under paragraph 61.5(3)(c) the declaration must be verified by a statement of truth. The amount of security must be stated and if not the ship cannot be arrested. In any event Mr. Okello for the claimant was not authorised to sign the statement. Karisa, who is one of the claimants is the person who ought to have signed the statement.
45. Like Mr. Okello, Mr. Odunga, the learned counsel who took over for the claimants brief from Mr. Okello’s firm, did not have authority to make the declaration.
46. The learned counsel for the defendant also urged that he had filed an appeal in the Court of Appeal against the ruling of the court delivered on 18 June 2025. The appeal is said to have been registered as appeal no. 114 of 2025. Counsel submitted that there is no provision for appeal against the order for arrest of the vessel. On the question of signing the warrant of arrest by an improper officer, the learned counsel admitted that the wrongly signed warrant could be replaced with a warrant properly signed by a proper officer.
47. On his part, Mr. Odunga, urged that the amount of security can only be stated if known and that there is nothing that bars a party from making a subsequent declaration of the amount of security. Counsel reiterated that the order for the arrest of the vessel has not been appealed against and that the signature of the deputy registrar that can be rectified. Further, there is no evidence of forgery. It was also urged that the only security available for satisfaction of the claimants’ claim is the vessel.
48. Having considered the application and the response thereto and respective counsel’s submissions, I must state at the outset that the factual grounds upon which the application has been made are largely made up of contentious issues that cannot be resolved on the basis of affidavit evidence. It will be necessary for this Honourable Court to hear the witnesses and weigh their answers upon cross-examination on their depositions in order for it to reach conclusive findings on facts or disputed evidence. Suffice to say, it would be premature to grant the orders in the application if the basis upon which they are sought are contested facts the determination of which has to await the full hearing of the claimant’s claim.
49. On the question of signing of the warrant of arrest, it is not in dispute that the warrant was signed by the Honourable Akee and not Hon. Kalo, who is the duly gazetted Admiralty Marshall. But the fact that the warrant was signed by an unauthorised officer does not, of itself, invalidate the legal basis upon which this Honourable Court granted the order for the arrest of the ship. Until it is discharged, set aside or overturned, this Honourable Court’s order which is the basis upon which the warrant of arrest was issued, remains a valid order.
50. The signing of the order by a person other than the gazetted admiralty marshal was no more than an administrative lapse on the part of the court registry, a mistake that could easily have been corrected if the warrant of arrest erroneously signed by Honourable Akee was returned to registry and replaced with a properly signed warrant.
51. A more fundamental question that has been raised in this application is whether these proceedings ought to be stayed considering that the defendant has appealed to the Court of Appeal against the decision of this Honourable Court of 18 June 2025 in which I held that the court is seized of jurisdiction to dispose of the claim.
Among other determinations that the Court of Appeal may come to, either of the two outcomes is possible: that my ruling of 18 June 2025 is set aside or overturned and this Honourable Court is found to be without jurisdiction to determine the claimant’s claim or my decision is affirmed.
52. If the court of Appeal was to come to the conclusion that this Honourable Court lacks jurisdiction, any proceedings towards the determination of the claimants’ claim would turn out to have been an exercise in futility. It is, therefore, prudent that the proceedings be stayed pending the determination of the defendant’s appeal.
53. Since the arrest of the ship has been questioned on the ground that this Honourable Court does not have jurisdiction, I cannot lift the warrant until the question of jurisdiction has been determined. Nonetheless, the defendant has the option of providing a bank guarantee as security in leu of the vessel in which event the order for arrest of the vessel would be discharged and the vessel released, accordingly.
54. One final thing I need to say is that the defendant acknowledged service of the claim and duly contested it on the basis of this court’s want of jurisdiction. By a ruling delivered by this Honourable Court on 18 June 2025, the defendant was overruled. There is nothing to suggest that notwithstanding the ruling of this Honourable court, the defendant has submitted itself to the jurisdiction of the court in order to defend itself against the suit.
55. Of course, the defendant has no obligation to submit itself to the court’s jurisdiction having escalated the question of jurisdiction to the Court of Appeal. But in the same breath, the defendant cannot proceed and ask of this court determination of questions that can only be determined once it has submitted itself to the jurisdiction of the Honourable Court. I cannot, therefore, delve in detail, into the issues raised by the defendant in this application. The Honourable Court cannot proceed with this matter as if the defendant has submitted itself to the jurisdiction of this Honourable Court when the question of jurisdiction is pending determination in the Court of Appeal.
56. For the foregoing reasons, except for the order of staying proceedings and the defendant’s option to provide alternative security for the settlement of the claimant’s claim in the event it succeeds, the defendant’s application is dismissed. Costs will abide the outcome of the claim. It is so ordered.