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4 sailors awarded Sh2m against Somali fishing firm


Thursday April 4, 2019
By MAUREEN MUDI

Kenyan crew says they were abandoned in Kilifi after vessel broke down from Somalia, leading their 'terrorism' arrest



VOYAGE TO JUSTICE: Mombasa Law Courts /Image: FILE

Four sailors employed by a Somali fishing company have won a Sh2 million award against the MV Nasibu and Nasibu Fishing Company over breach of contracts.

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They are also entangled in a Sh10 million compensation tussle at the Employment and Labour Relations Court.

They said the vessel owner, Mumin Ali Mumin, failed to pay them salaries, provide food, water, and basic utilities. They said he deserted the ship after it broke down and abandoned them altogether.

The four, Osielo Oking, Stephen Mulinge, Harry Randu Banks, Juma Waziri Kingi, who were captain and engineers, respectively, had been arrested in Kilifi on suspicion they were terrorists when they stopped to refuel.

They had sailed to Kismayu in Somalia on August 24, 2016, and returned to Kenya on October 10, 2016.

Represented by Wachira King’angai and company advocates, the sailors said the owner of the ship abandoned them upon their arrest.

“The owner of the cargo, Jamal Bandira, came to our rescue by arranging for bail, food, and water. We remained on board the ship until February 20, 2017, when the criminal case was terminated. The owner of the ship did not at any time communicate with us or offer help,” Oking said.

Justice James Rika said the crew had been engaged by the ship on August 17, 2016, and were to be paid salaries totalling Sh140,000. They were paid their September 2017  salaries by the ship’s agent, Abdulqadir Fadhe.

But the vessel’s lawyer, Hassan Abdi told the court the crew was not in his client’s fishing vessel and were in another ship.

“If the claimants were arrested and charged, it was as a result of the wrongful and illegal actions of the owner of the cargo. The respondent did not have any obligation to pay the claimants any salaries,” Abdi said, seeking to have the claim dismissed.

But the judge directed the vessel owner pays the $8,400 (Sh840,000) salary arrears, and general damages for breach of contract, totalling $12,400  at 14 per cent interest per annum from the date of the judgment.

After their acquittal, the ship was released and proceeded to Mombasa Port where Bandira received his cargo.

 “It is clear that they were employed by the respondent. They are not shown to have been in another ship as alleged other than MV Nasibu. The circumstances, in which the claimants found themselves in, are well recorded in the proceedings of the criminal case in Kilifi. And the proceedings are part of the exhibits availed to the court,” the judge ruled.

In early January, the admiralty court in Mombasa awarded the shipping company over Sh10 million in the incident that saw it being grounded in Kenyan waters since 2017, after the arrest of the crew.

Bandira had filed a claim seeking compensation of Sh720,000, money he claimed was used to bail out the crew, secure the release of the vessel, supply fuel, spare parts, food and petty cash on various dates between August 23, 2016, and March 22, 2017.

But a counter-claim filed by Mumin, seeking damages and loss of income over unlawful detention of the ship, despite a court order allowing its release, won the day.

Justice Njoki Mwangi directed that Mumin be paid over Sh10.2 million by the businessman who hired the vessel to transport his goods from Somalia to Mombasa.

She noted that there was no proof that he paid cash bail for the crew members, mooring, fueling and maintenance of the ship.

He has since challenged the ruling faulting the court for failing to consider his evidence against the fishing company.

In his argument, Bandira said it was improper for the court to award the company an amount larger than what he was claiming from the vessel owners in repairs, maintenance and other services he provided the crew.

“The company should have filed their own claim, it was unfair for them to ride on mine,” he said.

Bandira said he had hired the vessel after entering into an agreement in which he was to pay a fee of Sh300,000 as well as Sh120,000 as the fuel cost.

The company was awarded the millions as repair costs for the main engine and generator of the vessel, mooring costs and hire charges for a round trip from Mombasa port to Kismayu port in Somalia.

Nasibu Fishing Company claimed the seizure of the vessel in Kenya after it was seized in Kilifi resulted in the loss of Sh450,000 for every 15 days, which hurt business.



 





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