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1. The Application
The Applicant, Retorte GmbH , sought the following orders:
Temporary Injunction – Pending the hearing and determination of this application inter partes , a temporary injunction restraining the 3rd and 4th Defendants, whether by themselves, their employees, officers, servants, or agents, from releasing the cargo described as 10,390 Kgs of RETOSEL 4.5% (Selenium Premix) packed on 10 pallets and 10,390 Kgs of RETOJO 10% (Iodine Premix) packed on 10 pallets, stuffed in Container No. MSNU5863690 , shipped under Bill of Lading No. MEDURM239717 , to the 1st and 2nd Defendants or to any party other than the Plaintiff or its authorised agent.
Order for Repossession – An order allowing the Plaintiff or its authorised agent to retake possession of the said cargo for purposes of re-shipping the same to Germany or changing the consignee .
Costs – Costs be in the cause.
2. Grounds and Supporting Affidavit
The application is supported by the affidavit of Jennifer Scharrer , who outlined, inter alia, that:
The Plaintiff is a global leader in the supply of high-quality selenium compounds used in various industries.
In November 2024, the 1st Defendant contacted the Plaintiff, purporting to act on behalf of Elementis PLC London , a legitimate global specialty chemicals company.
The 1st Defendant represented that the 2nd Defendant, Elementis Ltd , was an affiliate of Elementis PLC London.
Acting on this representation, the Plaintiff shipped the cargo in question to Mombasa for onward delivery to Uganda.
Payment terms were agreed at 30 days from the invoice date; however, no payment was ever made.
Investigations later revealed that the 1st and 2nd Defendants are fraudulent entities , unaffiliated with Elementis PLC London, and the shipping documents had been collected by unknown persons .
The Plaintiff consequently requested the 3rd and 4th Defendants to hold the cargo at the Port of Mombasa pending further instructions.
The Plaintiff now seeks to retake possession of its cargo to prevent loss through fraud and to mitigate accruing demurrage and port storage charges.
3. Responses
(a) 3rd and 4th Defendants
A replying affidavit was sworn by Mustapha Mugalla , who confirmed that:
Following the Applicant’s investigations, the 2nd Defendant was found to be non-existent.
At the Applicant’s request, the 3rd and 4th Defendants have held the cargo in safe custody at the Port of Mombasa to prevent fraudulent collection.
Demurrage and port storage charges continue to accrue daily.
It is in the interests of justice and commercial prudence that the Plaintiff be permitted to re-export or change the consignee to mitigate further loss.
Pursuant to advice from counsel, any such action requires a court order to enable the Kenya Revenue Authority to process the necessary manifest amendments.
(b) 2nd Necessary Party (Kenya Revenue Authority)
A replying affidavit sworn by Simon Ngure outlined the statutory framework under the East African Community Customs Management Act, 2004 (EACCMA), including:
Section 26(1) – Goods unloaded into a customs area remain under the custody of the master or agent of the vessel until delivery.
Sections 24(4) & (5) – Provide for amendment of the destination, ownership, or status of goods upon request by the master or agent of the vessel and approval by the proper officer.
The process of re-exportation or manifest amendment requires: A request from the shipping line/agent via the ICMS system,
A manifest corrector,
Indemnity letters from the shipper and consignee (or a court order where unavailable),
Proof of ownership documents, and
Where applicable, approval from the relevant revenue authorities in the partner state (URA).
The KRA stands ready to facilitate the re-exportation upon compliance with these statutory requirements.
4. Submissions
The Applicant submitted, inter alia, that:
The transaction was a fraudulent scheme to obtain goods without payment.
The Plaintiff remains the rightful owner of the cargo, as title never passed to the 1st or 2nd Defendants (see Oman Formaldehyde Chemical Company v Nilands Limited Africa; KRA & 3 others [2023] KEHC 27234 ).
The court in Junca Gelatines S.L v Hilton Ingredients (U) Ltd [2021] KEHC 9363 and TIB Chemicals AG v MSC S.A. & 2 others [2021] KEHC 9292 held that where goods are obtained through fraud, title remains with the seller.
The 1st and 2nd Defendants have failed to appear or assert any lawful claim over the goods.
The accruing demurrage necessitates urgent court intervention to prevent further loss.
The Applicant therefore urged the court to issue a mandatory injunction permitting repossession of the cargo pending full determination of the matter.
5. Determination
The court notes that the 1st and 2nd Defendants, though served, have not appeared or filed any response. The 3rd and 4th Defendants, as well as the necessary parties, have not opposed the application, save for outlining procedural requirements under customs law.
The evidence presented establishes a prima facie case that the transaction was procured through fraud and that the Plaintiff remains the lawful owner of the cargo. It is also evident that demurrage and storage charges continue to accrue daily, exacerbating the Plaintiff’s loss.
Given that the matter is at a preliminary stage , this Court will not issue final orders. However, to preserve the subject matter and prevent injustice, the Court finds it appropriate to grant interim relief .
6. Orders
Accordingly, the Court makes the following interim orders:
Prayer (1) of the application is allowed .
A temporary injunction is hereby issued restraining the 3rd and 4th Defendants, their servants, agents, or representatives from releasing the cargo described herein to the 1st or 2nd Defendants, or to any other party not being the Plaintiff or its authorised agent, pending further orders of this Court.
The parties, particularly the 3rd and 4th Defendants and the 2nd Necessary Party (KRA), shall address the Court on compliance with the procedural requirements set out in paragraphs 15–19 of the affidavit sworn by Simon Ngure of the Kenya Revenue Authority.
The matter shall be mentioned at 4.00pm on 29;10;2025 submissions on the process of re-exportation or manifest amendment , and to confirm compliance.
Costs shall be in the cause.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 29TH DAY OF OCTOBER 2025.
HON. JUSTICE WENDY K MICHENI
JUDGE
IN THE PRESENCE OF :
MR MURITHI FOR THE PLANTIFF /APPLICANT
NO APPERRANCE BY THE RESPONDENTS
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1. The Application
The Applicant, Retorte GmbH , sought the following orders:
Temporary Injunction – Pending the hearing and determination of this application inter partes , a temporary injunction restraining the 3rd and 4th Defendants, whether by themselves, their employees, officers, servants, or agents, from releasing the cargo described as 10,390 Kgs of RETOSEL 4.5% (Selenium Premix) packed on 10 pallets and 10,390 Kgs of RETOJO 10% (Iodine Premix) packed on 10 pallets, stuffed in Container No. MSNU5863690 , shipped under Bill of Lading No. MEDURM239717 , to the 1st and 2nd Defendants or to any party other than the Plaintiff or its authorised agent.
Order for Repossession – An order allowing the Plaintiff or its authorised agent to retake possession of the said cargo for purposes of re-shipping the same to Germany or changing the consignee .
Costs – Costs be in the cause.
2. Grounds and Supporting Affidavit
The application is supported by the affidavit of Jennifer Scharrer , who outlined, inter alia, that:
The Plaintiff is a global leader in the supply of high-quality selenium compounds used in various industries.
In November 2024, the 1st Defendant contacted the Plaintiff, purporting to act on behalf of Elementis PLC London , a legitimate global specialty chemicals company.
The 1st Defendant represented that the 2nd Defendant, Elementis Ltd , was an affiliate of Elementis PLC London.
Acting on this representation, the Plaintiff shipped the cargo in question to Mombasa for onward delivery to Uganda.
Payment terms were agreed at 30 days from the invoice date; however, no payment was ever made.
Investigations later revealed that the 1st and 2nd Defendants are fraudulent entities , unaffiliated with Elementis PLC London, and the shipping documents had been collected by unknown persons .
The Plaintiff consequently requested the 3rd and 4th Defendants to hold the cargo at the Port of Mombasa pending further instructions.
The Plaintiff now seeks to retake possession of its cargo to prevent loss through fraud and to mitigate accruing demurrage and port storage charges.
3. Responses
(a) 3rd and 4th Defendants
A replying affidavit was sworn by Mustapha Mugalla , who confirmed that:
Following the Applicant’s investigations, the 2nd Defendant was found to be non-existent.
At the Applicant’s request, the 3rd and 4th Defendants have held the cargo in safe custody at the Port of Mombasa to prevent fraudulent collection.
Demurrage and port storage charges continue to accrue daily.
It is in the interests of justice and commercial prudence that the Plaintiff be permitted to re-export or change the consignee to mitigate further loss.
Pursuant to advice from counsel, any such action requires a court order to enable the Kenya Revenue Authority to process the necessary manifest amendments.
(b) 2nd Necessary Party (Kenya Revenue Authority)
A replying affidavit sworn by Simon Ngure outlined the statutory framework under the East African Community Customs Management Act, 2004 (EACCMA), including:
Section 26(1) – Goods unloaded into a customs area remain under the custody of the master or agent of the vessel until delivery.
Sections 24(4) & (5) – Provide for amendment of the destination, ownership, or status of goods upon request by the master or agent of the vessel and approval by the proper officer.
The process of re-exportation or manifest amendment requires: A request from the shipping line/agent via the ICMS system,
A manifest corrector,
Indemnity letters from the shipper and consignee (or a court order where unavailable),
Proof of ownership documents, and
Where applicable, approval from the relevant revenue authorities in the partner state (URA).
The KRA stands ready to facilitate the re-exportation upon compliance with these statutory requirements.
4. Submissions
The Applicant submitted, inter alia, that:
The transaction was a fraudulent scheme to obtain goods without payment.
The Plaintiff remains the rightful owner of the cargo, as title never passed to the 1st or 2nd Defendants (see Oman Formaldehyde Chemical Company v Nilands Limited Africa; KRA & 3 others [2023] KEHC 27234 ).
The court in Junca Gelatines S.L v Hilton Ingredients (U) Ltd [2021] KEHC 9363 and TIB Chemicals AG v MSC S.A. & 2 others [2021] KEHC 9292 held that where goods are obtained through fraud, title remains with the seller.
The 1st and 2nd Defendants have failed to appear or assert any lawful claim over the goods.
The accruing demurrage necessitates urgent court intervention to prevent further loss.
The Applicant therefore urged the court to issue a mandatory injunction permitting repossession of the cargo pending full determination of the matter.
5. Determination
The court notes that the 1st and 2nd Defendants, though served, have not appeared or filed any response. The 3rd and 4th Defendants, as well as the necessary parties, have not opposed the application, save for outlining procedural requirements under customs law.
The evidence presented establishes a prima facie case that the transaction was procured through fraud and that the Plaintiff remains the lawful owner of the cargo. It is also evident that demurrage and storage charges continue to accrue daily, exacerbating the Plaintiff’s loss.
Given that the matter is at a preliminary stage , this Court will not issue final orders. However, to preserve the subject matter and prevent injustice, the Court finds it appropriate to grant interim relief .
6. Orders
Accordingly, the Court makes the following interim orders:
Prayer (1) of the application is allowed .
A temporary injunction is hereby issued restraining the 3rd and 4th Defendants, their servants, agents, or representatives from releasing the cargo described herein to the 1st or 2nd Defendants, or to any other party not being the Plaintiff or its authorised agent, pending further orders of this Court.
The parties, particularly the 3rd and 4th Defendants and the 2nd Necessary Party (KRA), shall address the Court on compliance with the procedural requirements set out in paragraphs 15–19 of the affidavit sworn by Simon Ngure of the Kenya Revenue Authority.
The matter shall be mentioned at 4.00pm on 29;10;2025 submissions on the process of re-exportation or manifest amendment , and to confirm compliance.
Costs shall be in the cause.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 29TH DAY OF OCTOBER 2025.
HON. JUSTICE WENDY K MICHENI
JUDGE
IN THE PRESENCE OF :
MR MURITHI FOR THE PLANTIFF /APPLICANT
NO APPERRANCE BY THE RESPONDENTS
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