Kenya Wildlife Service v Shihua Industry Alliance Company Limited & 3 others
The bottom line
#Kenya's Court of Appeal stopped the release of rosewood containers at Mombasa port until KWS's appeal over CITES permit obligations is decided.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has an arguable appeal against the ruling sought to be stayed
- 2.Whether, unless stay is granted, the intended appeal would be rendered nugatory
- 3.Whether public interest supports the grant of stay
Key legal issues
#Arguability of the intended appeal
The draft memorandum of appeal raised arguable points, including whether compelling KWS to issue a permit would breach Kenya's international obligations under CITES; a lodged notice of appeal against the impugned ruling sufficed.
The court perused the draft memorandum, noted the issue of illegality arising from compelling permit issuance, held that only a lodged notice of appeal against the orders to be stayed is required, and that points need only be non-frivolous irrespective of chances of success.
Nugatory value of the appeal
Release of the consignment would be irreversible since it would leave the court's jurisdiction, and damages would not be an adequate remedy given the nature of the issues.
Applying the Kinyanjui v Ketter test, the court found the outcome irreversible if stay were refused; the cargo would be exported, rendering the appeal academic and discounting damages as adequate compensation.
Public interest as an additional stay consideration
Public interest favoured stay because Kenya's international obligations under CITES, if any, required clarification before the consignment was released.
Relying on the Supreme Court's Munya decision, the court treated public interest as an additional element and found it in the public interest that the applicant's legal obligations be clarified before transhipment.
Legal principles established
#- An applicant for stay under rule 5(2)(b) must demonstrate an arguable appeal and that the appeal would be rendered nugatory absent stay; public interest is an additional consideration.
- For arguability on a stay application, it suffices that a notice of appeal has been lodged against the orders sought to be stayed and that the points raised are not frivolous, irrespective of chances of success.
- An appeal is rendered nugatory where the subject matter, if released, would be taken out of the court's jurisdiction and damages would not adequately compensate.
Court orders
#- 1.Stay of execution of the orders issued on May 9, 2022 by Hon Justice LL Naikuni in Mombasa Environment and Land Court Appeal No 23 of 2019 compelling the applicant to issue the 1st respondent with a permit and/or export clearance documents/certificates and/or diplomatic authorization for transhipment of the consignment, pending the hearing and determination of the intended appeal
- 2.No order as regards the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Mombasa
- Mombasa ELC Appeal No 23 of 2019
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (unfettered discretion to grant stay of execution and/or further proceedings pending appeal)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Firstly, an applicant has to satisfy that he or she has an arguable appeal. Secondly, an applicant has to demonstrate that unless an order of stay is granted the appeal or intended appeal would be rendered nugatory.
We accordingly stay the execution of the orders issued on May 9, 2022 by Hon Justice LL Naikuni in Mombasa Environment and Land Court Appeal No 23 of 2019
There shall be no order as regards the costs of the application.
We are persuaded that the grounds of appeal presented in the present application raise arguable points that merit consideration and determination one way or the other.
Issues in the judgment
#Coram and signature block spell the third judge differently
Third respondent's name is garbled in the cause title
Number of containers differs between seizure narrative and impugned orders
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Wildlife Service v Shihua Industry Alliance Company Limited & 3 others", Case Analysis (2022). Civil Application E050 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1385/eng@2022-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.