Pamwhite Limited v Karomo & another (Suing as the Chairman and Secretary respectively of New Nyali Residents Association) & 4 others
The bottom line
#Kenya's Court of Appeal let a developer appeal late because it never got notice of the ruling date, confirming short, explained delays can be excused.
What this practically means
#Executive summary
#Key legal issues
#Whether the delay of about eighteen days in lodging the Notice of Appeal was excusable
Yes - the deferment of the ruling and its delivery without notice, plus time to engage a new advocate, were sufficient and adequate reasons making the delay excusable and not inordinate.
The court applied the Mutiso principles. The fact of deferment of the ruling and its later delivery without notice of the new date was undisputed. The applicant also evidenced intervening actions by its new advocate, including a letter of 6 June 2022 requesting the ruling and proceedings and a Notice of Appeal filed promptly upon learning of delivery.
Whether the intended appeal had plausible grounds of appeal
Yes - the draft memorandum raised, among others, the jurisdiction of the ELC to hear an objection to development permission in the first instance, which required further argument.
The court held that at this stage it need only be satisfied that plausible grounds exist, not that they would succeed. The jurisdictional ground concerning the ELC's first-instance jurisdiction over objections to development permission was viewed as arguable and warranting further consideration on appeal.
Legal principles established
#- Extension of time under Rule 4 is discretionary and assessed on four factors: length of delay, reason for delay, chances of appeal succeeding, and prejudice to the respondent.
- On chances of success at the extension-of-time stage, the applicant need only show plausible grounds of appeal, not their merit.
Court orders
#- 1.Applicant granted leave to file and serve the Notice of Appeal dated June 6, 2022 and lodged on June 7, 2022 out of time
- 2.The said Notice of Appeal deemed to have been properly filed and served
- 3.No order as to the costs of the application
- On appeal from
- Environment & Land Court at Mombasa
- ELC Case No. 219 of 2020
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules (inherent/appellate discretion to extend time)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pamwhite Limited v Karomo & another (Suing as the Chairman and Secretary respectively of New Nyali Residents Association) & 4 others", Case Analysis (2022). Civil Application E047 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1376/eng@2022-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.