The High Court of Kenya has rejected preliminary objections by the Kenyan Ports authority in a multi-million-dollar compensation case filed against the authority by a Tanzanian firm.
Modern Holdings (EA) Ltd, Chairman and CEO, Anselim Minja is suing KPA, demanding $24million for the loss of imports at the Mombasa port at the height of the Kenyan post election violence in 2008.
KPA through its Counsel, Geoffrey Imende in September 2011, raised five objections, requesting the Court to reject the suit on ground that it was time barred.
Counsel Imende argued that whereas the cause of action was raised in January 2008, the case was filed in April 2009 against section 66 Kenya Ports Authority Act Cap 391.
Section 66 (b) provides that the action or legal proceeding shall not lie or be instituted unless it is commenced within twelve months after the default complained of.
Counsel Imende submitted that the plaint also contravenes the KPA Act section 65, which requires a plaintiff claiming compensation to give a six-month notice to the KPA managing director from the date on which the authority accepted the goods. .
In the ruling delivered on 21th December 2012, the high court judge, R.M Mwongo stated that the authority's letter of 30th April 2008 was evident that the parties were still discussing the issue of waiver on imports storage charges.
Judge Mwongo further said that the documents availed do not show on what date the discussions finally broke down thus crystallizing the default, but it must have been after 30th April, 2008.
Modern Holdings (EA) Ltd since 2006 was a sole distributor of Masafi juice manufactured by one of the world leading Masafi factory in Dubai in the whole Africa, alleged to have lost this lucrative deal as the result of the consignment destruction at Mombasa port.
The company represented by counsel Kioko Kilukumi and Denis Mung'ate, claimed that the 21 containers with 40 feet each loaded with fresh juices landed at Mombasa dock and stuck in between December 2007 and early January 2008, when the Kenya was in political unrest after the December 27 general election result disputed.
In a controversial move, Mombasa harbor authority, the company alleged, had shifted the 21 containers from its warehouse to the private yard of Makupa Transit shade Ltd, where illegal consignment
are normally kept, without the consent of the management of Modern Holdings firm.