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JudgmentRETORTE GmBH VS Kenya Ports Authority AND UGANDA REVENUE AUTHORITY AND 5 Others4 min read

RETORTE GmBH VS Kenya Ports Authority AND UGANDA REVENUE AUTHORITY AND 5 Others

High Court at Mombasa High Court · · Wendy Micheni

' Background
The Plaintiff,  Retorte GmbH , a company incorporated in Germany and a global supplier of high-quality selenium compounds, instituted this suit against the Defendants seeking injunctive and declaratory relief over a consignment of feed premix products shipped to Mombasa and destined for Uganda.
The 1st Defendant,  Ralph Hewins , presented himself as acting on behalf of  Elementis PLC London , a legitimate multinational chemical company. He represented that the 2nd Defendant,  Elementis Ltd , was an affiliate of that company.
Acting on this representation, the Plaintiff supplied and shipped cargo consisting of  10,390 Kgs of RETOSEL 4.5% (Selenium Premix)  and  10,390 Kgs of RETOJO 10% (Iodine Premix) , packed on 20 pallets in a  40’ High Cube Container No. MSNU5863690 , shipped under  Bill of Lading No. MEDURM239717 , to Mombasa for onward transportation to Uganda.
The Plaintiff issued an invoice payable within 30 days. No payment was ever received. Subsequent investigations revealed that  Elementis Ltd (2nd Defendant)  is  non-existent  and that  Elementis PLC London  had  no affiliation  with either the 1st or 2nd Defendants.
The Plaintiff further discovered that the original shipping documents sent to Uganda were collected by unknown persons, and it apprehended that the fraudsters might seek to collect the cargo unlawfully from Mombasa.
Upon the Plaintiff’s request, the 3rd and 4th Defendants —  Mediterranean Shipping Company S.A.  and  Oceanfreight (EA) Ltd  — retained custody of the cargo at the Port of Mombasa to avert fraudulent release.
The Plaintiff therefore filed this suit seeking: Injunctive relief to restrain the 3rd and 4th Defendants from releasing the cargo to the 1st and 2nd Defendants or any unauthorized party;
A mandatory order allowing repossession and re-exportation of the cargo or change of consignee;
General damages for fraudulent misrepresentation; and
Costs of the suit.

Responses
The 1st and 2nd Defendants, though duly served,  failed to enter appearance  or file any defence.
The 3rd and 4th Defendants filed a  replying affidavit  through  Mustapha Mugalla , confirming that: The 2nd Defendant is fictitious;
The cargo remains in their custody at the Plaintiff’s request; and
Demurrage and storage charges continue to accrue daily.
They require a court order to lawfully facilitate re-exportation or change of consignee through the  Kenya Revenue Authority (KRA) .

The  Kenya Revenue Authority , through  Simon Ngure , outlined the procedural requirements under the  East African Community Customs Management Act, 2004 (EACCMA) , including:
Requests for manifest amendments under Sections 24(4) & (5);
Proof of ownership;
Indemnities where consignee documents are unavailable;
Approval through the Integrated Customs Management System (ICMS); and
Coordination with partner state authorities, including the  Uganda Revenue Authority (URA) .
Issues for Determination
The primary issues for determination are:
Whether the Plaintiff has established ownership of the cargo;
Whether the court should grant the reliefs sought; and
The terms and conditions for repossession or re-exportation.
Analysis and Findings
The uncontroverted evidence before this Court demonstrates that the 1st and 2nd Defendants procured the transaction  through fraudulent misrepresentation . Elementis PLC London has disavowed any relationship with them, and the 2nd Defendant is unregistered and untraceable.
Title to goods obtained through fraud does  not pass  to the fraudster. The Plaintiff therefore  remains the lawful owner  of the cargo.
See:
Junca Gelatines S.L v Hilton Ingredients (U) Ltd [2021] KEHC 9363 ;
TIB Chemicals AG v MSC S.A. & 2 others [2021] KEHC 9292 ; and
Oman Formaldehyde Chemical Co. v Nilands Ltd Africa; KRA & 3 others [2023] KEHC 27234 .
The Plaintiff’s proprietary interest is undisputed. No defence has been filed to challenge its claim. The 3rd and 4th Defendants and the necessary parties have raised no objection to the reliefs sought, save for statutory compliance.
In the circumstances, the Plaintiff has proved its case  on a balance of probabilities , and judgment should be entered in its favour. However, the Court must ensure that the re-exportation or alteration of manifests complies with customs and port procedures to protect the integrity of cross-border trade and the interests of third parties.
Disposition
Accordingly, judgment is entered for the Plaintiff against the Defendants jointly and severally as follows:
Permanent Injunction:
The 3rd and 4th Defendants, their servants, agents, or representatives are hereby  restrained  from releasing the cargo described as  10,390 Kgs of RETOSEL 4.5% (Selenium Premix)  and  10,390 Kgs of RETOJO 10% (Iodine Premix) , stuffed in  Container No. MSNU5863690  and shipped under  Bill of Lading No. MEDURM239717 , to the 1st and 2nd Defendants or to any other person not being the Plaintiff or its duly authorised agent.
Order for Repossession and Re-Exportation:
The Plaintiff or its duly authorised agent is hereby allowed to  retake possession  of the said cargo for purposes of  re-exporting the same to Germany or changing the consignee , subject to: Full  compliance with the provisions of the East African Community Customs Management Act, 2004 , and all relevant port and customs procedures;
The Plaintiff providing  all requisite documentation  to the Kenya Revenue Authority and Kenya Ports Authority; and
The Plaintiff executing an  indemnity  in favour of the 3rd and 4th Defendants, KPA, and KRA against any claim that may arise should the 1st or 2nd Defendants or any other party subsequently assert ownership of the goods.

Damages:
The 1st and 2nd Defendants are jointly and severally liable to the Plaintiff for  general damages for fraudulent misrepresentation , the quantum to be assessed upon application.
Costs:
The Plaintiff shall have the  costs of this suit  against the 1st and 2nd Defendants. Costs between the Plaintiff and the 3rd, 4th Defendants and necessary parties shall be  in the cause .
Conclusion
The Court commends the cooperation of the shipping line, freight forwarder, and regulatory authorities in safeguarding the cargo pending judicial intervention. This judgment ensures commercial justice while upholding statutory procedures governing international trade.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 29TH DAY OF OCTOBER 2025.
..........................................................
HON. JUSTICE WENDY K. MICHENI
JUDGE
In the presence of:
For the Plaintiff: ___________________________
For the Defendants: _______
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