Pamwhite Limited v Karomo and Seinfert (Suing as the Chairman and Secretary, respectively of the New Nyali Residents Association) & 4 others (Civil Appeal E015 of 2023) [2025] KECA 930 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed courts can hear land planning disputes directly when the statutory committee meant to hear them first doesn't exist.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge rightly considered the replying affidavit sworn on 1st November 2021 by the 1st to 4th respondents' advocate
- 2.Whether the learned Judge was wrong in dismissing the appellant's Preliminary Objection while the court allegedly lacked jurisdiction to entertain the 1st to 4th respondents' suit
Key legal issues
#Whether the Court could determine the ground regarding the advocate's replying affidavit sworn in the trial court
The ground was dismissed because it was never raised before the trial court
A consideration of the record showed the issue of the replying affidavit sworn by Willis Oluga was not raised by the appellant during the hearing of the preliminary objection in the trial court, nor in written submissions, and was therefore not determined by the trial Judge. The appellate system restricts consideration to issues canvassed before and decided by the trial court, except in exceptional cases with adherence to the prescribed procedure.
Whether the trial court erred in assuming jurisdiction notwithstanding the exhaustion doctrine under the Physical and Land Use Planning Act
The trial Judge was right to assume jurisdiction because the prescribed forum, the Mombasa County Physical and Land Use Planning Liaison Committee, did not exist
The Court reviewed the doctrine of exhaustion and its exceptions, holding that the doctrine is not cast in stone. Where parties are unable to access a statutorily prescribed forum because it does not exist or is inaccessible, courts are empowered to step in. The non-existence of the Liaison Committee was not rebutted by the 5th respondent, and the County Government itself withdrew its preliminary objection. The trial court therefore rightly assumed jurisdiction.
Whether the suit was incurably defective for having been instituted by plaint rather than judicial review
The trial judge rightly dismissed the objection to the manner in which the suit was filed
While it is trite that public-law challenges must generally proceed by judicial review, Article 159(2)(d) of the Constitution requires justice to be administered without undue regard to procedural technicalities. Shutting out the respondents from the seat of justice over a primarily procedural flaw in the form of pleadings would defeat substantive justice, infringe the Fair Administrative Action Act imperatives, and cause no prejudice to the appellant since the suit was also against the non-administrative appellant.
Legal principles established
#- Where a statutorily prescribed alternative forum does not exist or has not been constituted, a court is empowered to step in and hear the dispute notwithstanding the doctrine of exhaustion
- An issue not raised, argued or pronounced upon by a trial court cannot be validly raised for the first time on appeal
- Where a challenge to a decision by a body or person infringing public-law rights is made, the dispute must as a general rule proceed by way of judicial review and not by a plaint, subject to the exceptions to the exhaustion doctrine
Court orders
#- 1.The appeal is dismissed with costs to the 1st-4th respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- Not stated in the judgment
- Jurisdiction invoked
- Section 61(3) and 61(4) of the Physical and Land Use Planning Act, 2019 as invoked by the appellant; the Court of Appeal's appellate jurisdiction over the Environment and Land Court decision
Relief refused
#Setting aside the dismissal of the appellant's Notice of Preliminary Objection
The Mombasa County Physical and Land Use Planning Liaison Committee did not exist and had not been constituted, so the trial court rightly assumed jurisdiction; the appeal lacked merit
Determination of the ground challenging the counsel's replying affidavit
The issue was not raised, argued or pronounced upon by the trial court and therefore cannot be raised for the first time on appeal
Costs
Appeal dismissed with costs to the 1st-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.
notwithstanding the enactment of a forum created by statute to determine specified categories of disputes, where parties are unable to access such forums because they do not exist or are inaccessible for one reason or the other thereby impeding their ability to access justice, in such circumstances courts are empowered to step in to hear and determine such matters and dispense much-needed reliefs to the parties.
In sum, the appeal lacks merit and is accordingly dismissed with costs to the 1st- 4th respondents. It is so ordered.
It is trite law that an issue which was not raised, argued and or pronounced upon by a trial court cannot be validly raised as a ground of appeal or as an issue for determination before the appellate court.
A Court's jurisdiction fiows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the Constitution or other written law.
It is imperative that where a dispute resolution mechanism exists outside Courts, the same be exhausted before the jurisdiction of the Courts is invoked. Courts ought to be fora of last resort and not the first port of call the moment a storm brews
A remedy is considered available if the Petitioner can pursue it without impediment, it is deemed efiective if it ofiers a prospect of success and is found suficient if it is capable of redressing the complaint [in its totality]
Issues in the judgment
#The second appellant is not identified by name in the judgment extract; the appeal is referred to as filed by 'the appellant' while the 1st appellant is Pamwhite Limited
The trial court's case number and the appeal number are not stated in the judgment text
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mulama & 2 others v Choge & 7 others (Environment and Land Case 52 of 2011 & 57 of 2022 (Consolidated)) [2026] KEELC 905 (KLR)[2026] KEELC 905 (KLR)11 Feb 2026
Cite this brief
#Cite this brief
Caselaw, "Pamwhite Limited v Karomo and Seinfert (Suing as the Chairman and Secretary, respectively of the New Nyali Residents Association) & 4 others (Civil Appeal E015 of 2023) [2025] KECA 930 (KLR)", Case Analysis (2025). Civil Appeal (Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/930/eng@2025-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.