[2024] KECA 1762 (KLR)
The Court found that since the 1st respondent had applied to withdraw its own notice of appeal, there was no useful purpose in proceeding with the applicant's motion to strike out the notice and memorandum of appeal. The withdrawal rendered the substantive application moot. The Court therefore marked the 1st...
Source-derived case information.
- Citation
- [2024] KECA 1762 (KLR)
- Parties
- Applicant: Shihua Industry Alliance Company Limited; Respondent: Kenya Wildlife Service; Respondent: The County conservator; Respondent: The Hon Attorney General; Respondent: The Kenya Revenue Authority
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Application E016 of 2024
- Procedural Posture
- Civil Application / Ruling on Application to Strike Out Notice and Memorandum of Appeal
- Outcome
- Notice of appeal marked as withdrawn; no order as to costs.
- Judges
- KI Laibuta, LA Achode, GV Odunga
- Legal Topics
- Striking Out Appeal, Withdrawal of Notice of Appeal, Court of Appeal Rules, Delay in Prosecution, Costs Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Shihua Industry Alliance Company Limited
Applicant
Kenya Wildlife Service
Respondent
The County conservator
Respondent
The Hon Attorney General
Respondent
The Kenya Revenue Authority
Respondent
Procedural Posture
Civil Application / Ruling on Application to Strike Out Notice and Memorandum of Appeal
Legal Issues
- 1 Whether the notice and memorandum of appeal should be struck out for want of prosecution exceeding one year and six months.
- 2 Whether the 1st respondent's application to withdraw the notice of appeal should be allowed with no order as to costs.
Ratio Decidendi
The Court found that since the 1st respondent had applied to withdraw its own notice of appeal, there was no useful purpose in proceeding with the applicant's motion to strike out the notice and memorandum of appeal. The withdrawal rendered the substantive application moot. The Court therefore marked the 1st respondent's notice of appeal as withdrawn and made no order as to costs, effectively disposing of the application without delving into the merits of the allegations of delay or the standing of the applicant's representatives.
Court Disposition
Notice of appeal marked as withdrawn; no order as to costs.
Orders
- The 1st respondent's notice of appeal dated 11th May 2022 is marked as withdrawn.
- No order as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
Shihua Industry Alliance Company Limited v Kenya Wildlife Service & 3 others (Civil Application E016 of 2024) [2024] KECA 1762 (KLR) (6 December 2024) (Ruling)
Neutral citation: [2024] KECA 1762 (KLR)
Republic of Kenya
In the Court of Appeal at Mombasa
Civil Application E016 of 2024
KI Laibuta, LA Achode & GV Odunga, JJA
December 6, 2024
Between
Shihua Industry Alliance Company Limited
Applicant
and
Kenya Wildlife Service
1st Respondent
The County conservator
2nd Respondent
The Hon Attorney General
3rd Respondent
The Kenya Revenue Authority
4th Respondent
(Being an application to strike out the Notice and Memorandum of Appeal against the Ruling and Orders of the Environment and Land Court of Kenya at Mombasa (L. L. Naikuni, J.) dated 9th May 2022 in E.L.C.A No. 23 of 2019)
Ruling
1. By a Notice of Motion dated 6th March 2024, the applicant, Shihua Industry Alliance Company Limited, sought orders to strike out the 1st respondent’s notice of appeal dated 11th May 2022 and the memorandum of appeal with costs on the grounds, inter alia, that the 1st respondent, Kenya Wildlife Service, has “… failed to prosecute the appeal preferred herein for a period exceeding one year and six months contrary to mandatory and express provisions of the law.”
2. The applicant’s Motion was anchored on rule 86 of the Court of Appeal Rules supported by the annexed affidavit of Salama Mbauro sworn on 6th March 2024 to which the 1st respondent replied vide the affidavit of Leon Kalisto, its legal officer, sworn on 14th June 2024 stating, inter alia: that the deponent to the applicant’s supporting affidavit, and who purported to have power to represent the applicant together with one Peter Liu, were held in Mombasa High Court Civil Case No. E065 of 2023 to be fraudsters; and that the subject matter of the appeal lies outside the jurisdiction of this Court.
3. Notwithstanding the matters aforesaid, learned counsel for the 1st respondent, Mr. Ochieng, made an application pursuant to rule 83(1) of the Court of Appeal Rules to have the 1st respondent’s notice of appeal marked as withdrawn with no orders as to costs.
4. Opposing the 1st respondent’s application, learned counsel for the applicant, Mr. Egunza, submitted that the applicant was entitled to prosecute its Motion for orders as prayed.
5. To our mind, no useful purpose would be served by arguments over an application in respect of which the impugned notice of appeal is sought to be withdrawn. Having carefully considered the record as put to us, the applicant’s Motion dated 6th March 2024, the affidavits in support thereof and in reply thereto, the rival submissions by learned counsel, the cited authorities and the law, we hereby order and direct that the 1st respondent’s notice of appeal dated 11th May 2022 be and is hereby marked as withdrawn with no orders as to costs. It is so ordered.
DATED AND DELIVERED AT NAIROBI THIS 6TH DAY OF DECEMBER, 2024. DR. K. I. LAIBUTA C.Arb, FCIArbs.…………………………………JUDGE OF APPEALL. ACHODE……………………………JUDGE OF APPEALG. V. ODUNGA……………………………JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR