NDETO KAY ADVOCATES VS PO MINERALS

REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA.
MISC. APPLICATION NO. E 111 OF 2023
SANJOLA COMPANY ………………………………………….... APPLICANT
Versus
PO MINERALS LTD …………………………….……………. RESPONDENT
SUKSES TRADING RESOURCES ………………….………..RESPONDENT

RULING
1. The Applicant filed an application as the lawful owner and consignor of the cargo contained under Entry Number D44075-22. It was said that the cargo was held at currently held at Steinweg Group.
2. The Respondents had promised to pay for the cargo but in vain. The Miscellaneous application dated 27th April 2023 and supported by the sworn affidavit of Gabriel Kalondo Ilunga sought the following prayers:
1. Spent 
2. Spent
3. THAT a permanent injunction do issue restraining, stopping, blocking Po Minerals Ltd, Sukses Trading Resources, their agents, assigns and or representatives and any other party acting and or claiming through them from accessing cargo contained under Entry Number D44075-22 belonging to the applicant currently held at STEINWEG GROUP

4. THAT STEINWEG GROUP do update its records to reflect SANJOLA COMPANY as the owner of the cargo under entry number D44075-22 and further facilitate the access to and release of cargo under entry D44075-22 to SANJOLA COMPANY and or their assigns and agents as the lawful owners of the subject cargo

5. THAT the OCS Port Police do provide police security and assistance to SANJOLA COMPANY to facilitate the movement of the said cargo under entry D44075-22
6. THAT the costs of this application be provided for

2. Service upon the respondents who neither appeared nor filed any response. At first the matter was confusing as the Applicant was registered as Ndeto and Company Advocates. This caused unnecessary delays in accessing documentation.

3. The Applicant filed submissions that they were the lawful owner as well as consignor of all the transit cargo under entry number D44075-22 currently held at STEINWEG GROUP whereas the respondents were the intended purchasers as per the agreement of the parties which agreement the parties entered into on or about 6th January 2023.
4. The sale agreements were said to have been terminated due to nonpayment. It became apparent that the Respondents through one Abdu Alsina Of Po Minerals in a bid to extort and defraud the Applicant of its lawfully owned property promised to pay the entire purchase price to the applicant subject to the applicant herein assigning ownership of the goods to Po Minerals the respondent herein which assignment was done on or about 23rd February 2023. No payment was done as at the date.
5. In short the applicants were conned by one of the several budding fraudsters preying on unsuspecting importers and consignors.
6. Despite not paying the purchase price, the 1st respondent has been making every effort to prevent the applicant from accessing and or moving the said cargo and further by threatening Steinweig Group on account of the previous assignment which has essentially tied their hands and they are unable to act to assist the applicant herein.
7. The Respondents chose not to appear in court and explain their side of the story. Despite being a miscellaneous application, I am comfortable that the applicants have made a case for the goods. The respondents are not purchasers within the meaning of the sale of goods act. The unpaid seller is entitled to possession.
8. The goods may be compromised if the orders sought are not issued. If the respondents had any claim or a lien over the goods, they could have defended the same. It is important that international trade moves smoothly without bottlenecks.
9. The court can only act on basis of jurisdiction that it possesses. In the case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, Nyrangi JA, as he then was stated as doth: -
“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction. Before I part with this aspect of the appeal, I refer to the following passage which will show that what I have already said is consistent with authority:
“By jurisdiction is meant the authority which a court as to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision. The limits of this authority are imposed by the statute, charter, or commission under which the court is constituted, and may be extended or restricted by the like means. If no restriction or limit is imposed the jurisdiction is said to be unlimited. A limitation may be either as to the kind and nature of the actions and matters of which the particular court has cognisance, or as to the area over which the jurisdiction shall extend, or it may partake of both these characteristics. If the jurisdiction of an inferior court or tribunal (including an arbitrator) depends on the existence of a particular state of facts, the court or tribunal must inquire into the existence of the facts in order to decide whether it has jurisdiction; but, except where the court or tribunal has been given power to determine conclusively whether the facts exist. Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing. Jurisdiction must be acquired before judgement is given”
10. It is well known and established law and fact that without Jurisdiction then the Court cannot properly or otherwise determine or decide on a matter
11. The suit is over assets held at the port of Mombasa within the breath of the territory of the republic of Kenya. The high court has jurisdiction over the territory of Kenya extending to its territorial waters and exclusive economic zone and its territorial as delimited to belong to the republic of Kenya. The weight of commerce and industry constitutional order and safety of trade is placed on the High court of Kenya.

12. As recent history will show, it is the high court that is the defender of all and sundry. The last bastion of hope. Should there be weakness in its power to direct commerce and governance, life with be solitary, poor, nasty, brutish, and short, as the Thomas Hobbes , in the Leviathan once said, In this state of nature, projects like farming, manufacturing, science, and the arts are a waste of time, because there’s no guarantee you’ll enjoy the fruits of your labor. Someone can take it from you at any moment. Everyone lives in “continual fear and danger of violent death.”

13. Only one issue is for determination, that is, whether the respondent has established any link to the goods to be able to lay claim to the same. The documents show the Applicant as the consignor. They were naïve enough to send the documents without money. They have no defended their claim. This court cannot rum away from the constitutional duty to defend commerce. When this ruling goes out, the words of the court of appeal in  Stanley Munga Githunguri v Republic [1986] eKLR(C.B.Madan, CJ, D.K.S.Aganyanya and J.E.Gicheru), ring true: -
“Stanley Munga Githunguri! You have been beseeching the Court for Order of Prohibition. Take the order. This Court gives it to you. When you leave here raise your eyes up unto the hills. Utter a prayer of thankfulness that your fundamental rights are protected under the juridical system of Kenya. Order: Prohibition to issue as prayed.”

14. Once the cargo has been stopped from leaving the hands of the Steinweig Group, it has to go somewhere. The applicant however, has all to respect the tax obligations that may be due. Therefore, whereas the cargo will be ordered released, it is not a carte blanche not to comply with tax obligations.
15. I agree with the Applicants on reliance of the decision of Amir Suleiman v Amboseli Resort Limited [2004] eKLR), that it is : -
“A fundamental principle is….that the Court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been ‘wrong’…..
16. In the case Joseph Kaloki t/a Royal Family Assembly v Nancy Atieno Ouma [2020] eKLR, the Court of Appeal stated as hereunder: -
“As this Court stated in Kenya Breweries Limited & another vs. Washington O. Okeyo [2002] eKLR a mandatory injunction can be granted on an interlocutory applications as well as at the hearing but should not normally be granted in the absence of special circumstances but that if a case is clear and which the court thinks it ought to be decided at once, a mandatory injunction will be granted at an interlocutory application.
29.  The Court also stated in Shariff Abdi Hassan vs. Nadhif Jama Adan [2006] eKLR that:
“The courts have been reluctant to grant mandatory injunction at the interlocutory stage. However, where it is prima facie established as per the standards spelt out in law as stated above that the party against whom the mandatory injunction is sought is on the wrong, the courts have taken action to ensure that justice is meted out without the need to wait for full hearing of the entire case.”
20. The Court also stated in Shariff Abdi Hassan vs. Nadhif Jama Adan [2006]
eKLR that:
“The courts have been reluctant to grant mandatory injunction at the interlocutory stage. However, where it is prima facie established as per the standards spelt out in law as stated above that the party against whom the mandatory injunction is sought is on the wrong, the courts have taken action to ensure that justice is meted out without the need to wait for full hearing of the entire case.”
21. The application needs to meet the terms set out in Giella = vs = Cassman Brown & Co. Ltd (1973) EA, 358, 360 the court must be satisfied in the words or of Spry VP as follows: -
“The conditions for the grant of an interlocutory injunction are now, I think, well settled in east Africa. First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.”
22. In the case of Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR, the Court of Appeal was of the view that these tests are sequential. The Court stated: -
“In an interlocutory injunction application, the applicant has to satisfy the triple requirements to;
(a) establish his case only at a prima facie level,
(b) demonstrate irreparable injury if a temporary injunction is not granted, and
(c) ally any doubts as to (b) by showing that the balance of convenience is in his favour.
These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent.  It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially.  See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86.  If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable.
In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage.  If prima facie case is not established, then irreparable injury and balance of convenience need no consideration.  The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between.”
22. Kenya Power & Lighting Co. Ltd v Samwel Mandere Ogeto [2017] eKLR, the court stated as doth: -
“A mandatory injunction is different from a prohibitory injunction in the sense that while an in prohibitory injunction the applicant must, as was stated in the celebrated case of Giella vs Cassman Brown & Co. Ltd (1973) EA 358, establish the existence of a prima facie case with high chances of success, and that he will suffer irreparable loss/damage which cannot be adequately compensated by an award of damages if the injunction is not granted, and further that the balance of convenience tilts in his favor, an applicant in a mandatory injunction must, in addition, establish the existence of special circumstances. Furthermore, an applicant for mandatory injunction must prove his case on a standard higher than the standard in prohibitory injunctions.
23. In the case of Nation Media Group & 2 Others vs John HarunMwau [2014] eKLR, the court of appeal said:
“It is trite law that for an interlocutory mandatory injunction to issue, an applicant must demonstrate existence of special circumstances… A different standard higher than that in prohibitory injunction is required before an interlocutory mandatory injunction is granted. Besides existence of exceptional and special circumstances must be demonstrate as we have stated a temporary injunction can only be granted in exceptional and in the clearest of cases.”

24. In this matter, this is a nature of mandatory injunction at the tail end of the case. The goods belong to the applicant. The seller has not been paid. This are special circumstances to help in getting to enforce a sellers lien.
25. In the unlikely event that there is any loss, then the buyers can sue for any breach of contract. In the circumstances I find merit it the application and allow the same. Each party to bear its own costs. 
i. THAT a permanent injunction do issue restraining, stopping, blocking Po Minerals Ltd, Sukses Trading Resources, their agents, assigns and or representatives and any other party acting and or claiming through them from accessing cargo contained under Entry Number D44075-22 belonging to the applicant currently held at Steinweg Group

ii. THAT Steinweg Group do update its records to reflect Sanjola Company as the owner of the cargo under entry number D44075-22 and further facilitate the access to and release of cargo under entry D44075-22 to Sanjola Company and or their assigns and agents as the lawful owners of the subject cargo

iii. THAT the OCS Port Police do provide police security and assistance to Sanjola Company to facilitate the movement of the said cargo under entry D44075-22
iv. Each party to bear its own costs. 
DELIVERED, DATED and SIGNED at MOMBASA on this 3rd day of July, 2023. Ruling delivered through Microsoft Teams Online Platform.

In the presence of: -
Ndeto for the Applicant
No appearance for the respondent
Court Assistant - Brian