Special circumstances in Kenya

Ushwin Khanna, partner at Mombasa-based law firm Kapila Anjarwalla & Khanna, looks at the case for independent admiralty jurisdiction in Kenya

THE high court in Mombasa in the Republic of Kenya has vested admiralty jurisdiction which can only be exercised in the same manner, to the same extent and in accordance with the same procedure as in the high court in England, as provided for in the Judicature Act, Laws of Kenya.

Therefore, the provisions of Section 20 of the Supreme Court Act 1981 of England must be strictly applied by a party seeking to arrest any vessel within the territorial waters of Kenya, together with Order 75 of the Supreme Court Practice Rules, which govern the procedure.

For some time, the courts in Kenya, and particularly the court of appeal, have recommended that the law in Kenya has developed sufficiently for it to adopt its own independent admiralty jurisdiction without strictly following English law.

In the court of appeal case between the owners of the vessel Lillian S and Caltex Oil (Kenya) Ltd, the judges of appeal, by obiter dicta in their ruling, expressed their sentiments as follows:

"It remains for us to comment briefly on a secondary question which the court raised, that is whether it is always in the national interest for the high court to exercise its admiralty jurisdiction in accordance with English procedure as is provided in Section 4 of the Judicature Act.

"We would observe that admiralty jurisdiction is international in nature, that it is desirable to have uniformity of approach between the common law world, and that the UK has peculiar maritime experience. Even granting all that, it is our considered view that, after 25 years of independence, there is not the justification for Kenya, a sovereign state, to depend wholly on the English procedure.

"The fact of the existing situation is that a committee of rules sitting in London and making rules and laying procedure for the benefit of the UK, in effect tells the high court in Kenya what procedure to follow in admiralty matters. The high court in Kenya applies the English procedure without having regard to our circumstances. We know of no other provisions in our laws which tie to English law the Kenya high court or any other court as firmly as Section 4 of the Judicature Act does.

"We are concerned that a situation might arise in which the Kenya high court must apply English procedure to our own cases in a manner injurious to our national interest. We have a duty to Kenya to draw attention to this particular situation. We respectfully suggest to our parliament to have one more look at the section and consider introducing some amendment to the particular section so as to confer, at the very least, discretion on the Kenyan high court in its exercise of its admiralty jurisdiction.

"We have in mind an amendment which would enable the Kenya high court in exceptional circumstances to apply our own civil procedure where English procedure would manifestly be disadvantageous to our maritime trade. It is ordered that a certified copy of this ruling be placed before the Hon The Attorney-General for such action as he will deem necessary".

To date, no action as recommended has been taken by parliament to introduce any amendment to Section 4 of the Judicature Act.