Pamwhite Limited v Karomo & Seinfert (Suing as the Chairman and Secretary Respectively, of the New Nyali Residents Association) & 4 others (Civil Appeal E113 of 2023) [2025] KECA 853 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that a residents' association's officials elected at an AGM can keep a land dispute alive, even when the Registrar's records say otherwise.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether Benson Karomo had locus standi to file the suit on his own behalf and on behalf of the 1st to 4th respondents
- 2.whether Benson Karomo had power to withdraw the affidavit in support of the 1st to 4th respondents' Motion dated 26th November 2020, or the entire suit
- 3.whether his Notice of Withdrawal dated 31st May 2021 and amended on 7th June 2021 had the effect of extinguishing the entire suit
Key legal issues
#Whether Benson Karomo had locus standi to file suit on behalf of the 1st to 4th respondents
He had locus standi, being the duly elected Chairman of the 1st respondent at the time of filing suit, election at the AGM being the source of officialdom; the Registrar's outdated records and belated returns did not detract from this.
The AGM minutes showing Karomo's election as Chairman on 24th April 2018 and re-election on 2nd April 2019 were unchallenged. The Registrar's letter dated 22nd December 2020 could only confirm officials as at 2015 and was unreliable. Under sections 29(1) and 31 of the Societies Act, officers are elected at the AGM; belated filing of returns carries only the criminal sanction in section 30(3) and does not make a registered society illegal or divest it of the right to sue.
Whether Benson Karomo could unilaterally withdraw the supporting affidavit or the entire suit
He could not. He was not a plaintiff but an official representing the society; the proper mode of withdrawal under Order 25 rule 1 is a written notice by the plaintiff, and an official's unilateral withdrawal requires authority by special resolution of the members.
Order 25 rule 1 permits the plaintiff, before setting down the suit for hearing, to discontinue by written notice served on all parties. Karomo's affidavit of 7th January 2021 was not such a notice. The plaint described the 1st plaintiff as the association represented by its officials, so neither the Chairman nor the Secretary was a plaintiff. Applying Victory Soul Winning Centre, officials are nominal plaintiffs on behalf of the society and cannot disengage and purport to withdraw the suit on its behalf.
Whether the Notice of Withdrawal dated 31st May 2021 (amended 7th June 2021) extinguished the entire suit
It did not. The notice effected withdrawal only by the 2nd and 3rd respondents; the 1st and 4th respondents had not withdrawn, so the suit subsisted.
The notice of withdrawal clearly indicated that only Ideal Locations Limited and Kirke Limited were withdrawing their case against the appellant and the County Government. Since the 1st respondent association and the 4th respondent remained, the suit was still live and capable of being struck out; the ground of appeal on this point failed.
Legal principles established
#- Officials of a registered society derive their mandate from election by members at the Annual General Meeting, not from recognition or registration by the Registrar of Societies.
- A society sues through its officials, who are not themselves plaintiffs; an official who filed suit on behalf of a society lacks capacity to unilaterally withdraw the suit absent authority from a special resolution of the members.
- The proper manner of withdrawing a suit before the setting down for hearing under Order 25 rule 1 of the Civil Procedure Rules is by a written notice of withdrawal filed and served, not by an affidavit of an official purporting to withdraw.
- Failure by a registered society to file annual returns does not render it an illegal or unlawful society or divest it of the right to sue; the sanction for non-filing under section 30(3) of the Societies Act is criminal, not civil.
Court orders
#- 1.The appeal is dismissed
- 2.The ruling and orders of the ELC at Mombasa (L. L. Naikuni, J.) dated 18th July 2022 are upheld
- 3.Costs to the 1st to 4th respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Mombasa
- ELC Case No. 219 of 2020
- Jurisdiction invoked
- First appellate jurisdiction under Article 164(1)(a) of the Constitution over the Environment and Land Court (implied; not expressly cited in the excerpt)
Relief refused
#Setting aside the ELC ruling and substituting an order allowing the appellant's Notice of Motion dated 13th May 2021 to strike out/dismiss the suit
The appeal failed on all three issues; Karomo had locus standi, lacked authority to withdraw the suit, and the Notice of Withdrawal by the 2nd and 3rd respondents did not extinguish the suit
Costs
Costs to the 1st to 4th respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Having considered the record of appeal, the grounds on which it was anchored, the impugned ruling, the respective submissions of learned counsel for the appellant and for the 1st to 4th respondents, the cited judicial authorities and the law, we reach the inescapable conclusion that the appeal fails and is hereby dismissed.
Consequently, the ruling and orders of the ELC at Mombasa (L. L. Naikuni, J.) dated 18th July 2022 are hereby upheld. Costs to the 1st to 4th respondents.
officials of a society do not derive their mandate from their recognition by the Registrar as officials, but by virtue of their election as such by members of the society at the Annual General Meeting (AGM).
Benson Karomo lacked the capacity to unilaterally withdraw the 1st respondent's suit without authority that would ordinarily be conferred upon him by a special resolution of the members of the 1st respondent association.
At any time before the setting down of the suit for hearing the plaintiff may by notice in writing, which shall be served on all parties, wholly discontinue his suit against all or any of the defendants or may withdraw any part of his claim
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pamwhite Limited v Karomo & Seinfert (Suing as the Chairman and Secretary Respectively, of the New Nyali Residents Association) & 4 others (Civil Appeal E113 of 2023) [2025] KECA 853 (KLR)", Case Analysis (2025). Civil Appeal (ELC Appeal from ELC Case No. 219 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/853/eng@2025-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.