The admiralty court in Mombasa has dismissed the Sh17 billion diesel claim by businesswoman Ann Njeri against Kenya Pipeline Company for failing to prove that the fuel ever arrived in Kenya.
Justice Kizito Magare said diesel consignment EN590 never arrived and was not aboard motor tanker Haigui and the cargo the claimant and defendants were fighting over was not the same.
Last year, Njeri hit the headlines after she was allegedly abducted by security officers at the Directorate of Criminal Investigations over importation of the Sh17 billion EN590 diesel.
Galana Energies Limited and ARAMCO Trading Fujairah (ARAMCO) had laid claim to the 100,000 metric tons of the said diesel.
Njeri filed a case at Mombasa High Court on October 8, last year, and successfully stopped Kenya Ports Authority and Kenya Pipeline Company from offloading the diesel from a ship.
Justice Kizito issued a warrant of arrest against the vessel, barring it from leaving the port and also stopped the discharging and offloading of the said oil.
"After informing myself of the facts, I am of the considered view that there is nothing to go on trial. Diesel EN590 never arrived and was not aboard motor tanker Haigui. This is a proper case to strike out. It cannot be saved by amendment or otherwise," ruled Justice Magare.
Njeri will incur a Sh21,780,000 cost towards striking KPA name out of the suit and a further Sh22,440,000 to Galana.
"I dismiss the claimant's application dated November 8, 2023, and discharge all orders issued on the said date. The 2nd defendant's (KPA) name is struck out with costs of US$165,000. The entire suit is struck out with costs of $170,000 to the 1st defendant (Galana Energies Limited) for avoidance of doubt the application by the claimant is dismissed and order issued on November 8, 2023 are hereby discharged," ruled Justice Magare.
The judge said that since the material or cargo they were fighting over was not the same, they should file their case in Jeddah where they may have been misled or otherwise initiated the scheme to steal the oil.
He noted that the oil that was offloaded was Gas oil 50ppm and the manifest with KRA was for AGO.
"The diesel never arrived in the country. The goods purchased by Galana Energies Limited are different from the purported ones by the claimant. The master of the ship is king. In this matter, he knew what he was carrying. He signed the documentation," said Justice Magare.
"This case reminds me of the words of shylock in the play by William Shakespeare in Merchant of Venice, at Act Scene 3. In this case, a ship Motor Tanker Haigui turned up and left behind a web of truth, ties, half-truths, subterfuge and machinations that were of proportions unknown in the recent world. Not even the legendary Ali Capone and others could have pulled stunts some of the parties were putting. It was not clear even whether this was a motor vessel or motor tanker," said Justice Magare.
He said the court was left with more heat and darkness than light and illumination and that the truth lay somewhere.
The judge noted that the case involved discrete probabilities, where the happening of one event excludes the other.
