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Court of AppealAllowedCivil Application 44 of 2021· [2022] KECA 1339 (KLR)

Kenya Wildlife Service v Sea Star Malindi Limited

Court of Appeal
2 December 2022
SKS. Gatembu KairuPNP. NyamweyaJLJ. Lesiit
1,465 words in judgment
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The bottom line

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Kenya's Court of Appeal restored KWS's dismissed stay application, ruling that a court registry's failure to notify parties of a hearing is good reason to revive a case.

What this practically means

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Executive summary

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Kenya Wildlife Service applied to the Court of Appeal at Malindi for restoration of its application dated May 25, 2021, which sought a stay of execution of an Environment and Land Court decree pending an intended appeal. That application had been dismissed for want of prosecution on August 3, 2021 during the court recess, on account of non-appearance by both parties. The applicant moved under sections 3A and 3B of the Appellate Jurisdiction Act and Rule 56(3) of the Court of Appeal Rules, 2010 to set aside the dismissal and restore the application. Applying the two pre-requisites from Okiya Omtata Okoiti v Attorney General, the court found the restoration application, filed two days after the dismissal, was timely. On sufficient cause, counsel on both sides conceded no notice of hearing was served; the Recess-Cause List indicated the matter would be decided on written submissions without appearance of counsel, but the registry never communicated this to the parties. The applicant's persistent enquiries about the application's fate reinforced the court's satisfaction that sufficient cause was shown. The court also rejected the respondent's contention that the applicant's advocates were not properly on record, holding that appellate proceedings are distinct from lower court proceedings for representation purposes. The court allowed the application, set aside the dismissal order, restored the May 25, 2021 application for hearing on a priority basis, and made no orders as to costs.

Key legal issues

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01

Timeliness of the restoration application

Holding

Filing two days after the dismissal order constituted no delay.

Reasoning

The application dated August 5, 2021 was filed two days after the August 3, 2021 dismissal order, and shortly after the applicant's advocates became aware of it. The court was satisfied there was no delay, satisfying the first pre-requisite from the Okiya Omtata Okoiti decision.

02

Sufficient cause for non-appearance

Holding

Non-communication by the registry of the hearing date and of the intention to dispose of the application on written submissions constituted sufficient cause.

Reasoning

Counsel on both sides conceded no notice of hearing was served. The Recess-Cause List indicated the matter would be decided on written submissions without appearance of counsel, but the registry never communicated this to the parties or required them to file submissions. The applicant had persistently enquired about the application's fate, satisfying the sufficient-cause threshold under Rule 56(3).

p. 3
03

Whether the applicant's advocates were properly on record

Holding

Proceedings before the Court of Appeal are distinct from lower court proceedings for representation purposes; no notice of change was required.

Reasoning

The respondent argued Hamilton Harrison & Mathews Advocates were not properly on record having not acted in previous proceedings. The court held no rule requires the lower court advocate to continue representing the party before this Court absent a notice of change, relying on Mary Nchekei Paul and Oscar Githanji Mburu.

p. 3

Legal principles established

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  • Two pre-requisites govern restoration of an application dismissed for want of prosecution: timeliness of the restoration application and demonstration of sufficient cause for non-appearance.
  • An advocate need not have acted for a party in the lower court to represent that party in the Court of Appeal without filing a notice of change of advocates.

Court orders

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  1. 1.Application dated August 5, 2021 allowed
  2. 2.Order of August 3, 2021 dismissing the applicant's application dated May 25, 2021 set aside
  3. 3.Application dated May 25, 2021 restored for hearing
  4. 4.The restored application, having been certified as urgent, to be fixed for hearing in the registry on basis of priority
  5. 5.No orders as to costs

Authorities

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Legislation

  • Appellate Jurisdiction Actsections 3A and 3B
  • Court of Appeal Rules, 2010Rule 56(1)
  • Court of Appeal Rules, 2010Rule 56(3)
  • Court of Appeal Rules, 2010Rule 82(2)
  • Court of Appeal Rules, 2010Rule 83
  • Court of Appeal Rules, 2022Rule 58(3)

Cases cited (3)

  • Okiya Omtata Okoiti and another v The Attorney General and 4 others
    [2016] eKLR

    Two pre-requisites for restoration: timely application and sufficient cause for non-appearance

  • Mary Nchekei Paul v Francis Mundia Ruga
    [2019] eKLR

    Proceedings before this Court are distinct from lower court proceedings for purposes of representation

  • Oscar Githanji Mburu v Faith Githongo & another
    [2021] eKLR

    Same proposition on representation before the Court of Appeal

On appeal from
Environment and Land Court
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and Rule 56(3) of the Court of Appeal Rules, 2010 (now Rule 58(3) of the Court of Appeal Rules, 2022)

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, "Kenya Wildlife Service v Sea Star Malindi Limited", Case Analysis (2022). Civil Application 44 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1339/eng@2022-12-02

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