Appeal Court strikes out notice over continuing holding Burundi fue

BURUNDI: TWO foreign companies, Numora Trading PTE Limited based in Singapore, and Lamar Commodity Trading from Dubai, have lost their bid to challenge a court order requiring them to release 20,685.61 metric tonnes of gasoline worth 43bn/- to Burundi-based Prestige Investment.

In a recent decision, the Court of Appeal struck out notices of appeal lodged by the two companies against the decision given by the High Court’s Commercial Division in favour of Prestige Investment regarding the consignment destined for the Republic of Burundi.

Justices Mary Levira, Zepharine Galeba, and Mustapher Ismail ruled that the notices of appeal lodged against the High Court’s ruling were based on an interlocutory order that did not definitively determine the suit.

“Consequently, we grant the application and strike out the notice of appeal with costs,” they declared in their ruling dated March 20, 2024.

The justices also made a similar decision on another notice of appeal lodged by Lamar Commodity Trading in the same matter.

They further refused to endorse the application lodged by Numora Trading PTE Limited seeking a stay of execution of the High Court ruling over the release of the consignment because it was incompetent, being based on the rejected notice of appeal.

In their ruling, the justices noted that the advocates agreed that the suit was pending and awaiting the first pretrial conference.

Therefore, justice does not allow preference of an appeal on a suit that has not reached a final and conclusive determination in the High Court.

“We are of the fortified view that the finality that allows an appeal under the last part of section 5 (2) (d) of the Appellate Jurisdiction Act is the finality of the suit and not a fraction of the issues in a suit,” they said.

Before the High Court, the applicant expressed grievances about the conduct of Lamar Commodity Trading DMCCC and Numora Trading PTE Limited, which led to the withholding of imported petrol fuel products destined for the Republic of Burundi.

It was alleged that the consignment in transit was sold to Lake Oil Limited while the applicant had fulfilled their payment obligations under a Letter of Credit issued by KCB Bank Kenya Limited in favor of Numora Trading PTE Limited.

The court raised questions when the consignment was said to have been sold to Lake Oils Limited, who claimed to have a right to the cargo.

It asked whether there was a scheme to divert the cargo to Lake Oils Limited or if it was merely a manipulation between Lamar Commodity Trading DMCCC, Numora Trading PTE Limited, and Lake Oils Limited, as argued by the applicant’s counsel.

In his submissions, the advocate for the applicant argued that on July 6 or 7, 2023, KCB Bank Kenya Limited received 15 million US dollars for the last consignment.

“As it may be noted, if on July 7, 2023, such was the situation and on the same date the consignment was allegedly sold to Lake Oils Limited, what does such a fact portray? Does it not suggest that the sale borders on fraudulent conduct if that is true?” the court asked.

The court did not respond to the questions in the ruling and did not go into any such details since those are matters that could be examined in the main suit.

It noted from the affidavits and annexed documents that the consignment alleged to be sold was indeed sold to Lake Oils Limited.

During the hearing, Advocate Seni Malimi appeared for Prestige Investment, the applicant, while Nuhu Mkumbukwa, Stephen Axwesso, Godwin Nyaisa, and Gasper Nyika represented Numora Trading PTE Limited, Lamar Commodity Trading, KCB Bank Kenya Limited, and Lake Oil Limited as respondents.

The counsel for the applicant submitted that the decision sought to be challenged in the intended appeal, whose notice of appeal was lodged, was not appealable.

He told the court that, in terms of section 5 (2) (d) of the Appellate Jurisdiction Act, such a decision was an interlocutory order that did not definitively determine the suit between the parties.

On the other hand, the advocates for the respondents argued that the order in question finally determined the matter and that what remained were inconsequential prayers with little significance.

They contended that the release of the fuel fulfilled the applicant’s prayers in the plaintiff’s reliefs and that the High Court had conclusively determined that the respondents were in breach of the supply contract.

The applicant sought to prevent or mitigate greater inconvenience, considering that they had paid for the consignment which was not released as required.

The respondents claimed that the applicant was to blame for the delayed payments.