An Israeli-owned company with goldmining interests in South Sudan was dealt a blow after Court of Appeal in Kenya said the High Court had no jurisdiction to hear a suit it filed against a UK logistics firm.
The Court of Appeal has upheld a preliminary objection to the suit by Misnak International (UK) Ltd contracted by 4MB Mining, the Israeli firm, to source, purchase and transport large consignments of mining materials to South Sudan saying the High Court had not assumed jurisdiction over it.
The South Sudan government awarded 4MB Mining a contract to undertake mining activities in Juba and Luri areas.
According to the appellate court, the manner in which jurisdiction is assumed is that those who file a case have to seek leave of the court to serve summons to the sued party outside the court’s jurisdiction to notify them of the existence of the suit. Appellate judges Daniel Musinga, Gatembu Kairu and Agnes Murgor said that it is upon service of the summons that a court assumes jurisdiction over a foreign defendant.
“The judge (of the High Court) never addressed her mind to the prayer for leave to serve the summons upon Misnak International outside the court’s jurisdiction,” said the judges.
According to the contract between 4MB Mining Ltd and Misnak International the consignments were to be transported from Thailand through the port of Mombasa and arrive at the agreed destination before March 1, 2018.
4MB Mining indicated that the agreed timeline was of essence since it had obtained a non-diplomatic exemption of import tax on the consignments from the Government of South Sudan and the exemption was conditional on consignments arriving at the Kenyan/Sudan border on or before April 5, 2018.
Misnak, in line with the terms of the contract, raised invoices from time to time which 4MB Mining met. 4MB Mining told the court that after the consignment landed at the port of Mombasa on March 4, 2018, Misnak raised “exorbitant invoices” which it rejected.
In turn, Misnak detained the consignments through Total Link Logistics, Union Link Logistics and Freight Forwarders (K) Ltd, who acted as its agents to exercise lien over the goods on account of non-payment.
