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Supreme CourtPartially AllowedPetition (Application) E022 of 2024

Kenya Wildlife Service v Sea Star Malindi Limited

Supreme Court of Kenya
20 December 2024
2,467 words in judgment
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The bottom line

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Supreme Court allows KWS appeal to proceed and halts Kshs 93 million payment pending hearing.

What this practically means

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The Supreme Court has allowed Kenya Wildlife Service to proceed with its appeal against a Kshs 93 million judgment in favor of Sea Star Malindi Limited. The court also stopped enforcement of the payment until the appeal is heard. Although KWS filed printed copies 15 days late, the court found the delay minor and excused it. The court ruled that the case involves constitutional issues, giving it jurisdiction. KWS, as a public body, does not have to provide security for the stay.

Executive summary

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This ruling disposes of two applications in an appeal by Kenya Wildlife Service against Sea Star Malindi Limited. The respondent sought to strike out the appeal for being filed out of time and for lacking jurisdiction under Article 163(4)(a) of the Constitution. The appellant sought a stay of execution of the Court of Appeal judgment awarding Kshs.93,000,000 plus interest. The Supreme Court dismissed the respondent's application. It held that while the appeal was filed 15 days out of time (because printed copies were filed after the electronic copies), the delay was not inordinate and no prejudice was shown. The court invoked its powers under Section 21 of the Supreme Court Act and Rule 65 of the Supreme Court Rules to regularize the filing. On jurisdiction, the court found that the Court of Appeal's decision involved the interpretation and application of the Constitution, particularly regarding the violation of the respondent's right to property and the remedy of damages under Article 23(3)(e). Therefore, the appeal properly invoked the court's jurisdiction under Article 163(4)(a). The court allowed the appellant's application for a stay of execution. It applied the three-prong test from Gatirau Peter Munya: the appeal was arguable, the decretal sum was colossal and could not be easily recovered from a public body, and public interest favoured a stay. The court also held that a public body need not offer security for costs. The appeal was directed to be heard on priority basis, with costs to abide the outcome of the appeal.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appeal, record of appeal and supplementary record of appeal should be struck out for being filed out of time and for failing to meet the jurisdictional threshold under Article 163(4)(a) of the Constitution.
  2. 2.Whether the appellant should be granted a stay of execution of the judgment and orders of the Court of Appeal pending the hearing and determination of the appeal.

Key legal issues

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01

Whether the appeal was filed within the statutory timelines.

Holding

The appeal was filed out of time by approximately 15 days, but the court exercised its discretion to regularize the filing.

Reasoning

The appellant filed the appeal and record of appeal electronically on 24th May 2024, within 30 days of the notice of appeal. However, printed copies were filed on 10th June 2024. Following Kenya Hotel Properties Limited, filing is complete only when both electronic and printed copies are filed, making the completion date 10th June 2024, which was 15 days out of time. The court found this delay not inordinate and, in the interests of justice, invoked its powers under Section 21 of the Supreme Court Act and Rule 65 of the Supreme Court Rules to admit the documents as deemed filed within time.

02

Whether the Supreme Court has jurisdiction under Article 163(4)(a) of the Constitution.

Holding

The Supreme Court has jurisdiction under Article 163(4)(a) because the Court of Appeal's decision involved the interpretation and application of the Constitution.

Reasoning

The respondent argued the matter did not involve constitutional interpretation. However, the court noted that the Judicial Review case had held that the appellant's acts violated Section 75 of the Constitution. The ELC relied on this to settle liability, and the Court of Appeal acknowledged the constitutional violation and spoke to damages under Article 23(3)(e) of the Constitution. The court found that the suit took a trajectory of constitutional interpretation and application, thus properly invoking Article 163(4)(a).

03

Whether the appellant met the test for grant of a stay of execution.

Holding

The appellant met the three-prong test for a stay of execution.

Reasoning

The court applied the Gatirau Peter Munya test. First, the appeal was arguable because it raised the question of whether the Court of Appeal erred in relying on the Judicial Review case to ascribe liability. Second, the decretal sum of Kshs.93,000,000 plus interest was colossal, and as a public body, there was no comfort that the sum could be recovered if the appeal succeeded, rendering the appeal nugatory. Third, public interest favoured a stay because the appellant is a statutory body funded by public coffers, and paying out would affect wildlife conservation. The court also held that a public body need not offer security.

Legal principles established

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  • An appeal is fully filed only when both electronic and printed copies are submitted; the later date counts.
  • A 15-day delay in filing printed copies is not inordinate and can be excused in the interests of justice.
  • An appeal lies to the Supreme Court if the Court of Appeal's decision involved constitutional interpretation, even if the original case did not.
  • A public body funded by public money does not need to provide security for costs to get a stay of execution.
  • A stay of execution requires an arguable appeal, risk of the appeal being rendered nugatory, and public interest favoring the stay.

Court orders

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  1. 1.The application dated 28th June 2024 is dismissed.
  2. 2.The application dated 16th July 2024 is allowed.
  3. 3.The appeal dated 24th May 2024 be heard on priority basis.
  4. 4.The costs shall abide the outcome of the appeal.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Martha Karambu Koome
M. K. KoomeCJ
Currently serving
majority

Wrote the judgment

Philomena Mbete Mwilu
P. M. MwiluDCJ
Currently serving
majority
Njoki Susanna Ndungu
Njoki NdunguSCJ
Currently serving
majority
Isaac Lenaola
I. LenaolaSCJ
Currently serving
majority
William Ouko
W. OukoSCJ
Currently serving
majority
On appeal from
Court of Appeal of Kenya
Malindi Civil Appeal No. E018 of 2022
Jurisdiction invoked
Article 163(4)(a) of the Constitution

Relief refused

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Striking out of the appeal, record of appeal and supplementary record of appeal

The delay of 15 days was not inordinate and the respondent did not establish prejudice; the court invoked its powers under Section 21 of the Supreme Court Act and Rule 65 of the Supreme Court Rules to regularize the filing.

Costs

The costs shall abide the outcome of the appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

the delay of 15 days cannot be said to be inordinate and the respondent has not established what prejudice it stands to suffer or has suffered. In the circumstances, and in the interests of justice, we invoke our powers under Section 21 of the Supreme Court Act and Rule 65 of the Supreme Court Rules and order that the Appeal, Record and Supplementary Record of Appeal be admitted and deemed to have been filed within time.
p. 3 Extension of time and regularization of filing
we find that indeed, the suit took a trajectory of constitutional interpretation and application. Therefore, the appellant has properly invoked this Court's jurisdiction under Article 163(4)(a) of the Constitution.
p. 4 Jurisdiction under Article 163(4)(a)
Being a public body, it is not necessary to offer security and in particular of such an amount, as to itself be an impediment to access to justice as we held in Westmont Holdings SDN BHD v Central Bank of Kenya & 2 others
p. 5 Stay of execution - security for costs by a public body

Key timeline

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2024-05-24
KWS files appeal and record of appeal electronically with the Supreme Court.
2024-06-10
KWS files printed copies of the appeal and record of appeal, completing filing 15 days late.
2024-06-28
Sea Star Malindi Limited applies to strike out the appeal for being out of time and lacking jurisdiction.
2024-07-16
KWS applies for a stay of execution of the Court of Appeal judgment pending appeal.
2024-12-20
Supreme Court dismisses Sea Star's application, allows KWS's stay application, and orders priority hearing.

Practical implications

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For lawyers

Filing deadlines now require dual copies

Ensure both electronic and printed copies of Supreme Court appeals are filed within 30 days. The filing date is the later of the two. If printed copies are late, promptly apply for regularization under Section 21 of the Supreme Court Act and Rule 65, citing no prejudice and minimal delay. Also, argue constitutional trajectory to secure jurisdiction under Article 163(4)(a) even if the original pleadings were not constitutional.

For businesses

Enforcing judgments against public bodies

If you win a judgment against a public body like KWS, expect delays in payment. The Supreme Court may grant a stay without requiring security, citing public interest and access to justice. To counter this, demonstrate specific prejudice you will suffer from the delay, such as financial hardship or inability to recover the sum later. Also, challenge the constitutional basis of the appeal early to limit jurisdiction.

For individuals

Your property rights may reach Supreme Court

If a court finds your property rights were violated by a public body, the case can go to the Supreme Court even if you did not originally raise constitutional arguments. However, the public body can delay payment by appealing and getting a stay without paying security. You should prepare for a long legal process and consider seeking interim measures to protect your interests.

Frequently asked questions

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Can Kenya Wildlife Service delay paying a court judgment in Kenya?+

Yes, if it files an appeal and gets a stay of execution. In this case, the Supreme Court allowed KWS to stop paying Kshs 93 million until its appeal is heard. The court said KWS, as a public body, does not need to provide security for the stay, and public interest in wildlife conservation justified the delay.

What is the deadline for filing an appeal in the Supreme Court of Kenya?+

You must file both electronic and printed copies of the appeal and record of appeal within 30 days of the notice of appeal. The filing is complete only when both are submitted, and the date of completion is the later of the two dates. A delay of 15 days was excused in this case as not inordinate.

When can you appeal to the Supreme Court of Kenya under Article 163(4)(a)?+

You can appeal as of right if the Court of Appeal's decision involved the interpretation or application of the Constitution. This applies even if the original case did not raise constitutional issues, as long as the case later took a constitutional trajectory. The Supreme Court decides if it has jurisdiction.

Does a public body in Kenya have to pay security for a stay of execution?+

No, according to this Supreme Court ruling. A public body funded by public coffers is not required to offer security for costs as a condition for a stay of execution. Requiring such security could itself be an impediment to access to justice for the public body.

Cite this brief

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Cite this brief

Caselaw, "Kenya Wildlife Service v Sea Star Malindi Limited", Case Analysis (2024). Petition (Application) E022 of 2024. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/80/eng@2024-12-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.