This archive report was first published on 11 August 2019.
On August 11, 2019, the Court of Appeal in Kenya delivered a significant blow to 4MB Mining, an Israeli-owned company with goldmining interests in South Sudan, by upholding a preliminary objection to a suit filed against Misnak International (UK) Ltd.
The dispute arose from a contract between 4MB Mining and Misnak International, where the latter was contracted to source, purchase, and transport large consignments of mining materials to South Sudan. The consignments were to be transported from Thailand through the port of Mombasa and arrive at the agreed destination before March 1, 2018.
However, Misnak International allegedly raised 'exorbitant invoices' after the consignment landed at the port of Mombasa on March 4, 2018, which 4MB Mining rejected. In response, Misnak International detained the consignments through its agents, Total Link Logistics, Union Link Logistics, and Freight Forwarders (K) Ltd, citing non-payment.
The Court of Appeal, comprising judges Daniel Musinga, Gatembu Kairu, and Agnes Murgor, ruled that the High Court had not assumed jurisdiction over the case, as the plaintiff had failed to seek leave of the court to serve summons to the sued party outside the court's jurisdiction.
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.
