Judge declines Njeri's prayer to close oil ownership dispute file

The High Court has declined to close the Sh17 billion oil battle pitting businesswoman Anne Njeri against Galana Energies Limited, Kenya Ports Authority (KPA)­ and Kenya Revenue Authority (KRA).

Justice Dennis Kizito dismissed Njeri’s  Import and Export Enterprises Limited (Kenya)’s claim that his court lacked jurisdiction to entertain the dispute, given that the oil had already been offloaded and the ship had departed.

Njeri had insisted the case had now changed to a commercial one, but the judge said he was yet to separate the wheat from the chaff regarding ownership of the consignment ferried to Mombasa by MV Haigui.

According to him, the case did not end after the discharge of the cargo.

“I decline the invitation to declare that the dispute is overtaken. If the plaintiff does not wish to proceed, then they can apply for withdrawal of the claim. However, it is not open for the court to decide that question; it is the parties who know whether they wish to proceed. If they do, then they need to have the matter set for hearing. If not, they must do the needful, and withdraw the case, in which event costs shall follow. I am not convinced that this admiralty claim is untenable,” ruled Justice Kizito.

The judge was of the view that a bill of lading produced by Njeri dated October 9 indicated that the cargo was shipped aboard the ship. Another document, a cargo manifest of the same date, also indicated the cargo had been pre-paid.

Justice Kiziko said that KRA did not help the matter either. According to him, a manifest produced by the authority would have easily helped him determine the ownership of the contested consignment.

He noted that the document filed was not helpful, adding that there were two bills of lading. On one hand, Njeri’s document indicated she had shipped diesel while Galana’s showed the consignment was gasoil.

“It is worthless in determining the issue at hand. This therefore means that the ownership of the cargo is still outstanding. There is no way of knowing which of the bills of lading is true without hearing the case. There is therefore a need to ascertain the root of ownership and the contract for carriage,” said Justice Kizito. According to the judge, Njeri’s bill of lading showed that oil was 100,000 metric tonnes of diesel EN 590. On the other hand, he said, Galana’s document indicated that the consignment was local gasoil (49,091.742 metric tonnes) and transit gasoil (44,368.736 metric tonnes), which totaled to 93,460 metric tonnes.

He said the other puzzle was how could a tanker carrying 93,460 metric tonnes of gasoil discharge 100,000 metric tonnes of diesel EN 590. He noted that the two products, as presented by Njeri and Galana, were different, and it was unclear who bought or bought the cargo, and the nature of the cargo.

Justice Kizito said that the parties must flag the proper manifest, which is auto generated, and not an Excel form. At the same time, he said that they should give evidence on payment for the contract to ship the oil. According to him, evidence from foreign banks would suffice.