Kenya Wildlife Service v Sihua Industry Alliance Co. Ltd & 3 others [2019] KEELC 1799 (KLR)
The bottom line
#Kenya Wildlife Service lost its appeal because rosewood was only CITES-protected from January 2017, three years after the consignment was seized.
What this practically means
#Executive summary
#Key legal issues
#Whether the consignment (Dalbergia/rosewood) was protected under CITES Appendix II at the time of the bills of lading and seizure in May 2014
No. Dalbergia was only moved to Appendix II following the 17th CoP, with the Appendix II application operationalized on 2nd January 2017; in May 2014 the species was under Appendix III, so the consignment was not an endangered species under Appendix II at seizure.
The court traced CITES history: Kenya signed in 1979; rosewood was under Appendix III before 24th September 2016; it was moved to Appendix II at the 17th CoP in Johannesburg, operationalized 2nd January 2017. The 16th CoP decision merely set out an Action Plan toward listing. Accordingly, at the May 2014 seizure the consignment was not an Appendix II species.
Whether the 1st Respondent held the requisite valid transhipment permits
Yes. The permits were annexed to the 1st Respondent's application and the Appellant adduced no evidence that they were not issued by a CITES-recognised body; arguments by submissions alone were insufficient.
The 1st Respondent annexed copies of permits to her application of 3rd November 2017. The Appellant's responding affidavit did not demonstrate the permits were invalid or issued by an unrecognised body. The court held the Appellant attempted to introduce evidence through submissions, which is impermissible in civil law.
Whether the trial magistrate misinterpreted the applicable law in ordering release
No. The magistrate was within the law in ordering release, having considered the effective date of the Appendix II listing and the requisite permits.
Since the consignment was not an Appendix II species at seizure and no contrary evidence contradicted the 1st Respondent's documents, the magistrate's order releasing the seized goods was lawful. The court also found no error in the magistrate's treatment of CITES and the international-law submissions were of no assistance to the appellant.
Legal principles established
#- A party cannot oppose the grant of orders sought by submissions alone without adducing documentary evidence in the manner provided in civil law.
- The burden lay on the Appellant to establish that there was no valid CITES permit held by the 1st Respondent, and the consignment did not fall under CITES Appendix II at the time of seizure in May 2014.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal to the 1st Respondent, to be borne by the Appellant
- On appeal from
- Chief Magistrate's Court (Mombasa)
- Misc. 136 of 2018
- Jurisdiction invoked
- Appeal from the decision of Hon. Mutunga SRM under the Magistrate Courts Act (trial court had invoked Section 9 of the Magistrates Court Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Wildlife Service v Sihua Industry Alliance Co. Ltd & 3 others [2019] KEELC 1799 (KLR)", Case Analysis (2019). Civil Appeal No. 23 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1799/eng@2019-08-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.