Kenya Wildlife Services v Shihua Industry Alliance Co. Limited & 4 others (Environment and Land Appeal 23 of 2019) [2022] KEELC 3202 (KLR)
The bottom line
#Kenya's Environment and Land Court ordered KWS to issue CITES export permits for wrongly seized rosewood within three days and pay the trader's costs.
What this practically means
#Executive summary
#Key legal issues
#Prerequisites for a permit/certificate under CITES
Permits and certificates under CITES Articles III–V are governed by Article VI; an export permit may only be used within six months of grant and a separate permit is required for each consignment. Transit/transshipment specimens remaining in customs control are exempt under Article VII.
The court set out the CITES framework: it is an international agreement regulating trade in specimens of endangered species, with Appendix II covering species not necessarily threatened with extinction but whose trade must be controlled. Article VI prescribes the form and validity of permits, while Article VII exempts goods in transit or transshipment under customs control from Articles III–V. Kenya is a signatory, and Dalbergia (rosewood) moved from Appendix III to Appendix II effective 2nd January 2017 following the 17th Conference of Parties.
Entitlement of the 1st Respondent to a CITES permit from the Appellant
Yes. The seizure was wrongful and illegal; the 1st Respondent was never charged or convicted, the goods had been released, and it is incumbent on KWS to issue the requisite CITES authorization to facilitate transshipment.
The court held it was not re-inventing the wheel: its earlier judgment established the consignment was rosewood (Dalbergia spp.), not ordinary wood, and that at the time of the 2014 seizure it was not yet listed under Appendix II. The 1st Respondent intended only transshipment from Madagascar to Hong Kong; over seven years of detention produced no criminal charge or conviction. The goods had been unconditionally released on 29th November 2021, so KWS, having caused the illegality, bore the responsibility to restore the 1st Respondent to its position by issuing or facilitating CITES-compliant permits.
Costs of the application
Costs follow the event; the Appellant (KWS) must bear the costs of the application.
Applying Section 27(1) of the Civil Procedure Act and the authorities of Reids Heweet & Company v Joseph and Myres v Defries, costs follow the event. The event here was that the 1st Respondent, having suffered years of illegal detention of its goods, succeeded in obtaining an order compelling issuance of authentic CITES authorization and transshipment of the 37 containers, so KWS must bear the costs.
Legal principles established
#- Costs follow the event under Section 27(1) of the Civil Procedure Act; costs of a particular issue go to the party who succeeds upon it
- A consignment of rosewood (Dalbergia spp.) on transshipment classified under Appendix II of CITES at the time of seizure could only move upon requisite permits, and where the seizure itself was wrongful, the seizing state agency must facilitate issuance of the requisite CITES authorization
Court orders
#- 1.Notice of Motion application dated 27th January, 2022 by the 1st Respondent allowed with costs
- 2.Appellant (KWS) authorized/required to ensure issuance of permit and/or export clearance documents/certificates and/or diplomatic authorization to the satisfaction of CITES for transshipment of the consignment within Three (3) days
- 3.Restraint against any person, officers, agency or institution from placing objections, embargoes, restrictions or encumbrances on the consignment
- 4.Site Visit on 20th May, 2022 at Kenya Ports Authority, Kilindini harbour, of the 37 containers, organised and led by KWS, KRA, KPA and Kenya Police (DCIO & OCS)
- 5.Verification of contents of all 37 containers by the Court, cross-stuffing to fresh containers at a designated area, with supervision and release for transshipment in the presence of the Court
- 6.Appellant (KWS) to bear costs of the Notice of Motion to the 1st Respondent
- 7.Failure to comply with the orders to result in the Director of the Kenya Wildlife Service being committed to civil jail for contempt
- On appeal from
- Chief Magistrate's Court (lower court)
- Jurisdiction invoked
- Appellate jurisdiction over appeal from the subordinate court; application brought under Order 50 Rule 1 of the Civil Procedure Rules 2010, Sections 1, 1A, 3A, 63(c) of the Civil Procedure Act (Cap. 21) and Section 5 of the Judicature Act (Cap. 8)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Wildlife Services v Shihua Industry Alliance Co. Limited & 4 others (Environment and Land Appeal 23 of 2019) [2022] KEELC 3202 (KLR)", Case Analysis (2022). Not stated in the extract (appeal from Chief Magistrate's Court at Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3202/eng@2022-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.