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.
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.