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Court of AppealAllowedCivil Application No. 68 of 2014 (UR No. 47/14)· [2015] KECA 51 (KLR)

Crossley Holdings Limited v Director of Public Prosecutions & 1 other

Court of Appeal of Kenya
5 February 2015
1,005 words in judgment
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The bottom line

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Kenya's Court of Appeal gave a company a second hearing in a criminal-linked land dispute, but made it pay costs for its own and its lawyers' missed court date.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Kisumu (Maraga, Azangalala and Kantai JJ.A) on a notice of motion dated 23rd October, 2014 by Crossley Holdings Limited seeking restoration and re-hearing of two consolidated appeals. The background: following an Ethics and Anti-Corruption Commission quarterly report published in Kenya Gazette Notice No. 353 of 2010 alleging that the applicant had fraudulently acquired about 9,394 acres of land belonging to Miwani Sugar Company (1989) Limited, the applicant sought judicial review to quash the decisions to prosecute it and to prohibit the DPP. The High Court (Ali-Aroni, J) granted those orders on 18th May, 2012. The DPP and the Commission appealed in Civil Appeal Nos. 1 and 2 of 2013, consolidated and heard ex-parte on 19th June, 2014, with judgment allowing the appeals delivered on 23rd October, 2014, the applicant's former advocates having been served but not attending. On the same day the applicant filed this application under Section 3A of the Appellate Jurisdiction Act and Rules 42, 47 and 102(2) of the Court of Appeal Rules seeking stay and re-hearing. The Court found that the advocates on record had been served but failed to inform the client of the hearing date. Holding that the matters were criminal in nature with penal consequences, the Court allowed the application, directed that the two appeals be re-heard inter-partes within sixty days, restrained the DPP from prosecuting the applicant, its directors and employees pending that re-hearing, and ordered the applicant to pay the respondents' and interested parties' costs of the application. The substantive appeals remain to be determined on the re-hearing.

Key legal issues

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01

Restoration and re-hearing of appeals decided ex-parte where the applicant's advocates on record were served but failed to attend

Holding

The application was allowed; the applicant, though not diligent, is entitled to be heard on the appeals because the matters are criminal in nature with penal consequences

Reasoning

The Court found that the applicant's erstwhile advocates, Wangai Nyuthe & Company, were on record and had been served with the hearing notice, yet failed to appear or inform the client. The applicant itself had lost touch with its advocates for undisclosed reasons. Weighing this lack of diligence against the criminal and penal nature of the underlying dispute, the Court concluded that justice required an inter-partes re-hearing rather than letting the ex-parte judgment stand.

p. 2
02

Interim restraint on prosecution pending re-hearing

Holding

The DPP is restrained from proceeding with any criminal charges against the applicant, its directors and employees pending the re-hearing and determination of the appeals

Reasoning

Because the applicant had already been condemned unheard and faces criminal charges carrying penal consequences, the Court preserved the position by restraining the DPP until the appeals are heard inter-partes within sixty days. This protects the subject matter of the restored appeals without finally determining the respondents' right to prosecute.

p. 2
03

Costs of the restoration application

Holding

The applicant bears the costs of the application because its own and its advisors' failure to attend court necessitated the application

Reasoning

The Court accepted the respondents' submission that the application was occasioned entirely by the applicant's lack of diligence and that of its former advocates. As a consequence, although the applicant obtained restoration, it was denied the costs of the application and ordered to pay the respondents' and interested parties' costs.

p. 2

Legal principles established

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  • Where the matters giving rise to an application for restoration of an ex-parte decision are criminal in nature with penal consequences, a party who was condemned unheard should be heard on the merits even where it has not conducted itself diligently
  • Advocates on record who are served with a hearing notice must at the very least inform their client of the hearing date

Court orders

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  1. 1.The application for restoration and re-hearing is allowed
  2. 2.The two consolidated appeals (Civil Appeal Nos. 1 and 2 of 2013) are to be re-heard inter-partes within sixty days
  3. 3.Pending the re-hearing and determination of the appeals, the DPP is restrained from proceeding with any criminal charges against the applicant, its directors and/or its employees
  4. 4.The applicant to pay the costs of this application to the respondents and the interested parties
On appeal from
High Court of Kenya at Kisumu
H.C. MSC. Application No. 12 of 2010
Jurisdiction invoked
Section 3A of the Appellate Jurisdiction Act and Rules 42, 47 and 102(2) of the Court of Appeal Rules (application for restoration and re-hearing)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Crossley Holdings Limited v Director of Public Prosecutions & 1 other", Case Analysis (2015). Civil Application No. 68 of 2014 (UR No. 47/14). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/51/eng@2015-02-05

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