Ushwin Khanna

BACKGROUND

Ushwin Khanna is a Consultant with Anjarwalla & Khanna. His practice focuses mainly on civil and commercial litigation, admiralty and maritime law, appellate practice, commissions of inquiry and alternative dispute resolution. He has been a member of a task force appointed by the Attorney General to review all maritime laws in Kenya.

Ushwin obtained his LL.B from the University of Nairobi and a postgraduate diploma from the Kenya School of Law.  He is a member of the Law Society of Kenya.

Ushwin is also a Certified Professional Mediator (PM) having completed a course with Mediation Training Institute (MTI).

CAREER SUMMARY

2016 – Date: Consultant, Anjarwalla & Khanna
2000 – 2016: Partner, Anjarwalla & Khanna
1996 – 1999: Partner, Anjarwalla Abdulhusein & Co Advocates
1986 – 1993: Partner, Bryson Inamdar & Bowyer Advocates
1982- 1986: Partner, Hamilton Harrison & Mathews (Merger between Bryson Inamdar & Bowyer Advocates)
1974 – 1978: Partner, Veljee Devshi & Bakrania

AWARDS AND ACCOLADES

Ushwin was recognised by Chambers Global 2016 as ‘appears as notable practitioner’.
Voted as winner in the category of  Litigation & dispute resolution – Kenya  by Lawyer Monthly Legal Awards 2015.
Voted one of the best litigation and maritime Lawyers in Kenya – Best Lawyers International 2014

AREAS OF EXPERTISE

• Admiralty Maritime & Shipping
• Litigation and Dispute Resolution

LANGUAGES

• English
• Kiswahili

LOCATION

• Mombasa

TOP MATTERS

• Acting for Geyser, a BVI registered company that owns a parcel of valuable land in Miritini near the Mombasa port. The land was intended for the expansion of the Global Tea factory, the second largest user of the port and the maker of world famous tea brands such as Kericho Gold and Typhoo. The land is subject to compulsory acquisition by the National Land Commission (NLC) on behalf of Kenya Railways for the Standard Gauge Railway (SGR), a Vision 2030 project. A&K was involved in drafting submissions for the compensation hearing, attending the hearing and making oral representations. The Mombasa County government subsequently objected to the validity of our title and the NLC initiated a separate review of the same, where we attended the review hearing and made oral submissions as to the validity of title. We filed a constitutional petition for breach of the right to property as no award had been made and there has been unreasonable delay. We obtained an interim injunction from the Mombasa High Court preventing entry onto the land pending trial. China Road and Bridge Co (CRBC), the main contractor for the SGR, trespassed onto our client’s land after the injunction and we have filed contempt proceedings against the MD of CRBC, the MD of Kenya Railways and the chairman of the NLC. Since that time, the NLC has made a formal award for our client’s land and compensation for the damaged boundary wall, which we have accepted. However, the contempt proceedings are ongoing. The NLC has also gazetted a fresh notice to acquire more of our remaining land and we await notice of the compensation hearing for the same. We have not received payment under the first award and intend to proceed to Court if the same is not paid shortly.
• Acting for the Petitioner in this case, that has built 73 holiday apartments along the beach and is being denied access to the beach by the respondents who have acquired two plots over riparian land and which titles the Petitioner seeks to have nullified.
• In a Constitutional Petition filed in the High Court at Mombasa the Petitioner claimed that a right in the Bill of Rights had been denied and infringed by the Respondents and it sought several remedies under Article 23 of the Constitution of Kenya, including various declarations, permanent and mandatory injunctions and orders of judicial review. The Respondents opposed the Petition on a number of grounds, including locus standi and time bar. The High Court allowed the Petition, granted the declarations, injunctions, judicial review orders and costs. The Respondents however successfully appealed the decision before the Court of Appeal on several grounds, inter alia, that the High Court Judge was wrong to judicially review administrative actions which occurred over 20 years ago, thereby applying Article 47 of the Constitution, relating to fair administrative actions, retrospectively. The Court of Appeal held that the entire Petition was anchored on the provisions of Article 47, and that the said Article was not retrospective in nature.
• The Petitioner has now appealed to the Supreme Court by way of a Petition for interpretation of Article 47 and for the Court to decide whether or not, in the circumstances and facts of the Petition, the Article can operate retrospectively. A&K has been active throughout the proceedings from the inception and the matter is important as it involves several issues of Constitutional law including the interpretation of the provisions of the Constitution by the Supreme Court. A&K is acting for the Petitioners in the High Court, the 1st and 2nd Respondents in the Court of Appeal and now for the 1st and 2nd Appellants in the Supreme Court.
• Reviewing the maritime laws including the Carriage of Goods by Sea Act Cap. 392, The Merchant Shipping Act, 2009, The Admiralty Jurisdiction Bill, Kenya Ports Authority Act (Cap 391); Maritime Zones Act (Cap 371); the Marine Insurance Act (Cap 390) the Lakes and Rivers Act (Cap 409); the Ferries Act (Cap 410) and making recommendations for appropriate legislation to replace or amend various provisions of the maritime law statutes.
• Examining and reviewing the relevant pollution prevention conventions and existing environmental legislation with a view to establishing a co-ordinated and comprehensive marine pollution regulatory regime.
• Examining and reviewing the current legislative framework governing the admiralty jurisdiction of the Kenya High Court in respect of matters arising on the high seas or in territorial waters in Kenya with a view of safeguarding Kenya’s international interests.
• Making recommendations on proposed legislation to consolidate admiralty jurisdiction within Kenya and drafting a proposed Admiralty (High Court Jurisdiction) Bill for consideration and future enactment.
• Making recommendations on proposals for reform or amendment of maritime laws and their implementation in line with international conventions and recommendations of International Maritime Organization (IMO) and other treaty instruments and protocols to which Kenya is a party.
• Represented a company for recovery of salvage claims where the Court was asked to consider whether it had admiralty jurisdiction to entertain the claim and whether the claim was one of towage where no maritime lien arose.
• Representing a large company on its tax dispute with the Kenya Revenue Authority in a local committee tribunal and subsequent appeal to the High Court.
• Handled various matters relating to Multimodal and Transport litigation including claims or defences filed in respect of short landing or damage to clients’ goods being transported by road and claims for demurrage charges for delays in discharging containerized goods from vessels or return of containers under the terms of contract.
• Advising on claims or defences relating to cargo claims arising from Bills of lading in respect of loss, damage or short delivery of goods by sea where the Hague/Visby Rules apply.
• Reference to arbitration in respect of disputes arising under contract for delivery of goods to the consignee.
• Advising on Charterparty Agreements.
• Advising on clearing and forwarding of goods from the port in the event of disputes and claims arising therefrom.
• Advising on bailment and warehousing agreements and disputes arising therefrom.
• Undertaking a due diligence on the litigation portfolio in connection with an acquisition of one of the largest horticultural and floricultural companies in Kenya.
• Advising various clients on risk mitigation processes and procedures concerning litigation management including advising on suitable reporting structures, procedures for appointment of advocates and the preparation of litigation monitoring templates.
• Representing the Speaker of the National Assembly and the Parliamentary Select Committee appointed by the House before a Constitutional Court on issues relating to Parliamentary Privilege and Separation of Powers.
• Advising on and defending a claim brought by cargo interests on behalf of owners of a vessel which had been highjacked by pirates and eventually released on a large ransom payment whereupon general average was declared.
• Arresting bunkers on board a vessel and for delivery up of bunkers which were taken on board due to default of payment by the Charterers following a dispute between the vessel owners and Time Charterers.
• Arresting a vessel for security in respect of a dispute referred to a London Arbitration and thereafter arranging for a judicial sale and determination of the creditors’ claims on priorities.
• Defending an Admiralty Claim and obtaining release from arrest a vessel under demise charter in respect of cargo damage caused by an explosion on board.
• Advising and representing several International Ship Owners and Shipping Line Agents in a Constitutional Petition to declare some sections and regulations of the Merchant Shipping Act, 2009 Cap. 389 Laws of Kenya (Act) as unconstitutional. The Petition has been successfully determined in favour of the Petitioner by the Constitutional Court, which has declared the various sections and the regulations of the Act as unconstitutional.
• Advising and defending a limitation claim brought by a dredger which damaged a submarine fibre optic cable and disputing the limitation fund constituted by the Plaintiff under the provisions of the Merchant Shipping Act, 2009, 389, Laws of Kenya.
• Acting for ship owners in disputing the Admiralty Court’s jurisdiction to hear and determine an action in rem on the grounds that the Admiralty Jurisdiction had not been invoked nor had the mandatory practice directions been complied with following the arrest of their vessel.