High Court award exposes ferry agency to litigations in case of a stampede

Commuters using the Likoni crossing channel can successfully sue the Kenya Ferry Services (KFS) for damages in case of a stampede leading to injuries.

A High Court ruling has exposed the government agency to litigations should any of the passengers using the vessels get injured.

Mombasa High Court Judge Njoki Mwangi has upheld a Sh418,000 compensation awarded Mr John Gilbert Ouma, who suffered a fractured leg while inside the ferry five years ago.

The judge has ruled that magistrate courts have jurisdictions to hear and determine such disputes brought before them.

Justice Mwangi arrived at this decision after finding that a magistrate court struck out a case filed by Mr Ouma on the argument that it lacked jurisdictions to deal with the matter.

“It is my finding that the trial magistrate had jurisdiction to hear and determine the dispute that was before him,” said the judge.

The magistrate had initially awarded Mr Ouma the money, but later on, suspended the compensation on grounds that it lacked jurisdiction to handle such a dispute. This is after the Kenya Ferry challenged the award.

The argument was that ferries are like ships and, therefore, any dispute involving them should be handled by the High Court, not magistrate courts.

The judge, however, dismissed this assertion, noting that there is a distinction between the two vessels.

The court, for instance noted that the law describes a ship as a type of vessel used or intended to be used in navigation, while a ferry is described as a boat or vessel used to carry persons or property across the water with fixed terminals and short distances. This is according to Black Law's Dictionary 10^th edition.

“It is therefore clear that there is a distinction between a ferry and a ship. I do agree with the argument that MV Kilindini is not a ship, but is a ferry boat and falls under the provisions of the Ferries Act Cap 410, Laws of Kenya,” said the judge.

Serious injuries 

Mr Ouma sued the agency in 2017 for compensation after sustaining injuries while onboard the MV Kilindini on October 17, 2016, at around 6am. He said that while crossing the ferry from Likoni to Mombasa Island, people started pushing from behind, causing him to fall on the vessel’s floor.

“There was a stampede and people stepped on me, as a result of which I sustained serious injuries on my left leg at the ankle,” he told the court through his advocate, Mr Simiyu Oduor.

Mr Ouma said he suffered fractures on the legs and attributed the accident to negligence on the part of KFS.

The court allowed the claims and the KFS were required to pay him Sh418, 980 in general and special damages. However, this money was not paid within the required time, forcing Mr Ouma to engage auctioneers to enforce the court order. It was after he engaged the auctioneers that KFS returned to the court and challenged the award, questioning the magistrate’s jurisdiction. This was allowed, leading to the suspension of the award.

Mr Ouma moved to the High Court, where he successfully challenged the suspension of the award.

Mr Oduor argued that KFS does not fall under the Maritime Authority and that MV Kilindini is not a ship, sot the accident that occurred, which formed the subject of the appeal, is not an admiralty matter for the High Court to determine.

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