The Court of Appeal Orders a Stay of Proceedings in an admiralty matter before the High Court


The Court of Appeal allowed a stay pending an intended appeal from a decision of the High Court refusing to allow Starryway Trading and Shipping Company Ltd. (the applicant) to be a party to admiralty proceedings, between ET PTE Timbers Ltd. (the 1st respondent) and the owners of the Motor Vessel ‘DOLPHIN STAR’ (the 2nd respondent). The applicant had and continues to have a substantial interest as a holder of a lien over the 1st respondent’s cargo, which lien would be lost if the 1st respondent’s claim in the High Court succeeds, the ship is sold and the cargo transshipped onto another ship. The advocate for the successful applicant was Okello Kinyanjui and Company LLP.


The brief facts of this case are that on the 1st of January, 2019, the applicant entered into a time charter-party with the 2nd respondent, wherein the Motor Vessel ‘DOLPHIN STAR’ (the vessel), belonging to the 2nd respondent, was chartered to the applicant and thereafter on the 19th of January, 2021, the applicant entered into a voyage charter with the 1st respondent which was evidenced by a fixture note incorporating 'other terms' from the GENCON 94 form of voyage charter-party (the agreement) and the agreement provided, inter-alia, as follows, firstly, the 1st respondent was to pay full freight, secondly, the applicant had a lien over the 1st respondent’s cargo and thirdly, all disputes between the applicant and the 1st respondent would be resolved by arbitration in London.

The 1st respondent contrary to the agreement filed the admiralty proceedings, arrested the vessel and proceeded to make an application in the superior court, to sell the vessel and tranship the 1st respondent’s cargo onto another vessel. The applicant being apprehensive that it would be seriously prejudiced by the 1st respondent’s actions in the superior court filed an application to the superior court dated the 15th of October, 2021 praying for the orders, inter-alia to be joined in the proceedings of the superior court and for the said proceedings to be stayed. The application was originally scheduled for ruling on the 25th of February, 2022, but in the intervening period, the arbitral tribunal, in London found that that freight in the minimum sum of USD.578,779.69 was due and owing by the 1st respondent to the applicant. In view of the award by the arbitral tribunal the applicant made an application to the superior court for the said award to be considered by the superior court, which application was mentioned on 25th of February, 2022 but at the said mention the superior court made the substantive decision not to consider the arbitral award. The superior court then proceeded to make a ruling on the 18th of March, 2022 dismissing the applicant’s application dated the 15th of October, 2021. The applicant being aggrieved filed an application for stay pending appeal. Before the ruling of the application could be delivered the applicant filed an application for the Court of Appeal to admit further evidence being the decision of the High Court of Justice in England’s refusal to grant the 1st respondent’s application in that court for the stay of the enforcement of the arbitral award of the 21st of February, 2022.


The Court of Appeal ruled as follows:

1. With regard to the application dated the 12th of July, 2022 to adduce further evidence, i.e., the evidence of the rulings delivered by the High Court of Justice in England, the court granted our prayer and admitted the said rulings into evidence. The court considered that the evidence could not have been obtained with due diligence for use at the trial and that the evidence was relevant.

2. With regard to the application dated the 27th of April, 2022, for stay pending appeal, the Court of Appeal made the following orders:-

a. There be a stay of all proceedings in the superior court in HC Admiralty Claim no. E003 of 2021, ET Timbers PTE Ltd. vs the Owners of the Motor Vessel "Dolphin Star", pending the hearing and determination of the intended appeal.

In doing so, the Court considered that the intended appeal was not frivolous but was arguable e.g., the issue whether the High Court had jurisdiction to entertain the proceedings and also whether the applicant was a necessary party and further considered whether the said intended appeal would be rendered nugatory, e.g., if the vessel was sold and 1st respondent’s cargo transshipped, the applicant would stand to lose its lien on the 1st respondent’s cargo.

b. If it has not already done so, the applicant shall file and serve its memorandum of appeal within 30 days from the date of delivery of this ruling. The appeal shall immediately thereafter be fixed for case management before the Deputy Registrar for purposes of giving directions on filing submissions, and the appeal shall thereafter be fixed for hearing on basis of priority in the first term of 2023.

c. In default of the applicant filing the appeal within 30 days of delivery of this ruling, the orders of stay granted herein will automatically lapse and stand discharged.

d. The costs of this application shall abide the outcome of the appeal.


The Court restated the principles that the Court of Appeal has always used in applications for the introduction of new evidence and in applications for stay pending appeal. Notably, the Court of Appeal noted the urgency of the matter and ordered the applicant to file an appeal within thirty (30) days. The ruling is available here

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