Crossley Holdings Limited v Director of Public Prosecutions & 1 other
The bottom line
#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
#Executive summary
#Key legal issues
#Restoration and re-hearing of appeals decided ex-parte where the applicant's advocates on record were served but failed to attend
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
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.
Interim restraint on prosecution pending re-hearing
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
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.
Costs of the restoration application
The applicant bears the costs of the application because its own and its advisors' failure to attend court necessitated the application
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.
Legal principles established
#- 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
#- 1.The application for restoration and re-hearing is allowed
- 2.The two consolidated appeals (Civil Appeal Nos. 1 and 2 of 2013) are to be re-heard inter-partes within sixty days
- 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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.