The plaintiff is a company engaged in the manufacture of containers and cans. In December 1992, it purchased an hydraulic cylindrical grinding machine from India. For the purposes of shipping the machinery to the Port of Mombasa it contracted with a carrier known as Unicorn/CMBT Line whose local agent at Mombasa is the defendant.

The plaintiff claims that it was agreed that the defendant would deliver and release the machinery from the port of Mombasa to the plaintiff’s appointed agent, Mechanised Clearing & Forwarding Company Ltd. The plaintiff claims that the defendant in breach of the agreement allowed the machinery to be transported and delivered by Transami Kenya Ltd to a company in Kampala, Uganda, called Casement Africa Ltd. The plaintiff further alleges that, while in Uganda, the machinery was unpacked into an old container number 268198-3 and when eventually returned to Kenya it was found to be in poor condition with parts and accessories pilfered and/or missing.

The defendant denied having been the carrier of the relevant cargo. It argued that, even if it was the carrier, the suit would be time-barred under the provisions of art 3.6 of the Hague-Visby Rules as provided in the bill of lading, the plaintiff's suit not having been filed within one year from the date of delivery of the cargo. Furthermore, the Kenyan court does not have jurisdiction to entertain the suit as the bill of lading provides that all disputes are to be exclusively determined by the law and jurisdiction of the court where the carrier has its registered offices which, in this case, is the Republic of South Africa.

Held: Plaintiff's claim dismissed.

The plaintiff knew at the material time that the defendant acted as an agent of Unicorn/CMBT which is a shipping line registered in the Republic of South Africa. In Tota Ram v Mistry Waryam Singh (1933) 5 ULR 76, it was held that 'a person who acts as another’s agents in a transaction with the knowledge of the plaintiff is not liable to the plaintiff in respect of that particular transaction'. Accordingly, there is no basis for finding the defendant liable to the plaintiff.

Moreover, the Hague-Visby Rules, which are clearly applicable to the contract of carriage, require in art 3.6 that the claim be brought within one year of delivery of the goods. Although in its affidavit the plaintiff states that the Hague-Visby Rules do not apply to the contract, it does not explain why it takes that position, given the explicit statement in the bill of lading (see cl 5 of Terms and Conditions) unequivocally applying the Rules. The plaintiff’s suit is therefore time-barred.

The final point regards the exclusive South African jurisdiction clause. By virtue of that provision, the defendant submits that the suit should have been filed in the courts of South Africa and not in Kenya. A similar situation arose in the case of United India Insurance Co Ltd v East African Underwriters Kenya Ltd (1982-88) 1 KLR in which there was a similar exclusive jurisdiction clause: 'All suits and other legal proceedings and all arbitration in connection with this agreement and touching the rights of the parties herein shall be governed by the law prevailing in the Domain of India to the exclusion of all other laws and courts of Bombay alone shall have the jurisdiction to entertain any disputes between the parties.' The Court of Appeal held that 'all the decided authorities showed that the parties should be held to their agreement as regards a jurisdiction clause' and that 'a heavy burden of showing strong cause ... for departing from the exclusive jurisdiction clause lay on the party wishing to do so'. Here, the plaintiff has not established any case for departing from the exclusive jurisdiction clause.