Case Number REFERENCE NO. 1 OF 2008

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.

Date filed
KeywordJurisdiction , Misjoinder
Treaty ArticleArticle 23 , Article 27 , Article 30 , Article 9 , Articles of EAC Treaty , East African Community Customs Management Act of 2004 , East African Community Customs Management Regulations of 2006 , Rule 20 , Rules of Procedure 2004

First Instance Judgment

The Respondent was not among the institutions of the Community created under Article 9 (2), or a surviving institution of the East African Community. It was created by the Republic of Kenya, a Partner State, and not by the Summit. 2. The mere fact of rendering services at Mombasa port and serving the East African Partner States and citizens does not ipso facto make it an institution of the Community as the service must be such a service created by the Summit under Article 9 (2) of the Treaty.
3. The reference was not properly before the Court due to lack of capacity of the respondent under Article 30 of the Treaty and the court had no jurisdiction to entertain this reference.
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Date deliveredFebruary 12, 2009

Appeal Judgment

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Date delivered