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ELCPartially AllowedNotice of Motion dated 4th August, 2020 (arising from contempt proceedings following the ruling of 9th July, 2020)· [2021] KEELC 4599 (KLR)

Kenya Wildlife Service v Shihua Industry Alliance Co. Ltd & 3 others [2021] KEELC 4599 (KLR)

Environment and Land Court
20 January 2021
CYC.K. Yano
1,427 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court paused contempt sentencing only because the appellant agreed to release seized goods within fourteen days — comply or the stay dies automatically.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (C.K. Yano, J) determines a Notice of Motion dated 4th August, 2020 brought by the appellant under Sections 3, 13, 16, 18 and 19 of the Environment and Land Court Act and Order 42 Rule 6 of the Civil Procedure Rules, seeking stay of the sentencing of the appellant's officer in charge of Mombasa and of execution of the orders of 9th July, 2020, by which the court had found that officer guilty of contempt for defying an order of 14th August, 2019 directing release of seized goods to the 1st respondent. The appellant argued it had an arguable appeal, had filed a notice of appeal and requested typed proceedings, and that sentencing involving possible loss of liberty would render the appeal nugatory; it offered to abide by any conditions. The 1st respondent opposed, contending no appeal had been filed, the applicant lacked a right of appeal as an interested party, the contempt had not been purged, and the application was designed to frustrate collection of the goods. Citing the applicant's authorities, the court accepted that stay of sentencing pending appeal against a contempt finding can be appropriate, but held the applicant undeserving of an unconditional stay since there was no justification for continued detention of the goods. Stay of sentencing and execution was granted on condition that the appellant fully complies with the release orders within fourteen days, failing which the stay lapses automatically and the officer is to be summoned for sentencing. Costs of the application were to abide the outcome of the appeal.

Key legal issues

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Whether stay of sentencing for contempt should issue pending appeal

Holding

Stay granted conditionally upon full compliance with the order to release the suit consignment within fourteen days, failing which the stay lapses automatically and the officer is to be summoned for sentencing.

Reasoning

The court acknowledged superior court precedent that stay of sentencing pending appeal against a contempt finding may be appropriate. However, it found the applicant undeserving of an unconditional stay because there were no pending proceedings justifying continued holding of the seized goods. Balancing this with the applicant's offer to abide by any conditions, the court granted a conditional stay to facilitate compliance while preserving the appeal.

p. 2

Legal principles established

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  • Superior courts may grant stay of sentencing pending an appeal against a contempt finding, but such stay may be conditioned on the contemnor complying with the underlying orders.
  • An inferior court is bound by the decisions of the Supreme Court and the Court of Appeal.

Court orders

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  1. 1.Stay of execution and of the sentencing of the appellant's officer in charge of Mombasa granted on condition that the appellant fully complies with the court orders regarding the release of the suit consignment within fourteen (14) days from the date of the ruling
  2. 2.Failure to comply within fourteen days, the stay order shall automatically stand discharged and the appellant's officer in charge of Mombasa shall be summoned for sentencing
  3. 3.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Environment and Land Court ActSections 3, 13, 16, 18 and 19
  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (7)

  • Justus Kariuki Mate & Another –v- Martin Nyaga Wambora & Another
    (2014) eKLR
  • National Bank of Kenya & Another –v- Geoffrey Wahome Muotia
    (2016) eKLR
  • Rev. Jackcom Kipkemboi Koskey & 7 Others –v- Rev. Samuel Njogu & 4 Others
    (2007) eKLR
  • Julius Mugo Gachagua –v- Peter Mahinda Kanyora & 2 Others
    (2020) eKLR
  • African Centre for Rights and Governance (ACRAG) & 3 Others –v- Naivasha Municipal Council
    (2018) eKLR
  • Dr. Fred Matiangi, the Cabinet Secretary, Ministry of Interior and Coordination of National Government –v- Miguna Miguna
    (2018) eKLR
  • Methodist Church in Kenya –v- Mohammed Fugicha & 3 Others
    (2019) eKLR
On appeal from
Subordinate court (appeal against its decision decided by this court on 14th August, 2019)
Jurisdiction invoked
Sections 3, 13, 16, 18 and 19 of the Environment and Land Court Act and Order 42 Rule 6 of the Civil Procedure Rules

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 Shihua Industry Alliance Co. Ltd & 3 others [2021] KEELC 4599 (KLR)", Case Analysis (2021). Notice of Motion dated 4th August, 2020 (arising from contempt proceedings following the ruling of 9th July, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4599/eng@2021-01-20

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