MODERN HOLDINGS (EA) LIMITED v KENYA PORTS AUTHORITY

The Applicant , a company incorporated and registered in the United Republic of Tanzania and carrying on business of importing a range of products, imported twenty one containers of assorted Masafi fruit juices and mineral water through the port of Mombasa in December 2007 and January 2008. These were perishable goods with a limited shelf life.

The consignment could not be cleared from the port, which is managed by the respondent, within the stipulated time due to the post election violence in Kenya which disrupted the operations at the port at the time. When operations resumed, the Applicant expected that the consignments would be cleared as a matter of priority given their perishability.

Without the Applicant s consent, the Respondent contracted and had warehoused the consignment at the Makupa Transit Shade Ltd (MATS). Which had no contractual obligation with the Applicant. The respondent then insisted that the Applicant clears its consignment through MTS Ltd and so the Applicant was unable to enjoy the customs warehouse rent waiver granted by the Government of Kenya and its tax agencies. In addition, the Respondent required the Applicant to clear twenty one containers be cleared within three days which as a logistically impossible demand and all containers could not be cleared within that period. Contrary to the waiver, the Respondent insisted that all customs warehouse rent should be paid in full and thus the Applicant suffered loss as the products became unfit for human consumption.