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Pamwhite Limited v Karomo & another (Suing as the Chairman and Secretary respectively of New Nyali Residents Association) & 4 others (Civil Application E047 of 2022) [2022] KECA 1376 (KLR) (16 December 2022) (Ruling)
Neutral citation:
[2022] KECA 1376 (KLR)
Republic of Kenya
Civil Application E047 of 2022
P Nyamweya, JA
December 16, 2022
Between
Pamwhite Limited
Applicant
and
Benson Karomo & Hubert Seinfert (Suing as the Chairman and Secretary respectively of New Nyali Residents Association)
1st Respondent
Ideal Locations Limited
2nd Respondent
Kirke Limited
3rd Respondent
Conrad Properties
4th Respondent
The County Government of Mombasa
5th Respondent
(An application for extension of time to file and serve a Notice of Appeal against the ruling of the Environment & Land Court at Mombasa (L. Naikuni J.) delivered on 5th May 2022 in ELC Case No. 219 of 2020)
Ruling
1.Pamwhite Limited, the Applicant herein, has filed an application by way of a Notice of Motion dated 4th July 2022, in which it seeks extension of time for filing and serving a Notice of Appeal, or in the alternative, that the Notice of Appeal lodged in Court on 6th June 2022 and 7th June 2022 be deemed as properly filed with leave of the Court. The application is supported by an affidavit sworn on even date by Pamela Auma Ogola, a director of the Applicant.
2.The grounds for the application are that the ruling on a preliminary objection filed by the Applicant against the 1st and 4th Respondents’ suit in the Environment and Land Court at Mombasa (hereinafter ELC) was reserved for 6th April 2022, but was not delivered on that day, and instead was delivered on 5th May 2022 without any prior notice of the new date of delivery. That the discovery of the said delivery was as a result of the Applicant engaging a new advocate to follow up on the ruling, who upon inquiry was informed of the delivery, and thereupon requested to be supplied with a copy of the ruling and typed proceedings by a letter dated 6th June 2022, and filed a Notice of Appeal on 6th June 2022 out of time. The Applicant annexed copies of the letter dated 6th June 2022 addressed to the Deputy Registrar of the ELC, the ruling delivered by the ELC on 5th May 2022, the Notice of Appeal dated 6th June 2022 and lodged on 7th June 2022, and a draft memorandum of appeal dated 4th July 2022.
3.None of the Respondents filed a response to the application. During the virtual hearing of the application held on 21st September 2022, learned counsel Ms. Chengo, holding brief for learned counsel Mr. Kenga appeared for the Applicant, and indicated that as the application was not opposed, she would rely on the grounds thereon and the affidavit filed in support thereof.Learned counsel Mr. Oluga was appeared for the 1st to 4th Respondents, and sought to be given time to file a response. The application for adjournment was declined for reasons that Mr. Oluga had sufficient time to file a response, having confirmed that he was served with the application on 24th August 2022.
4.This application is therefore unopposed. The principles governing the exercise of the discretion to extend time under Rule 4 of the Court of Appeal Rules were well stated in the case of Leo Sila Mutiso v Rose Hellen Wangare Mwangi Civil Application No Nai 255 of 1997 (ur) as follows:
5.Rule 75(2) of the Court of Appeal Rules of 2010 in this respect required that a Notice of Appeal is lodged within fourteen days of the decision intended to be appealed against. The same requirement is now found in Rule 77 (2) of the Court of Appeal Rules of 2022. It is not in dispute that the Applicant did not file a Notice of appeal within the required timelines, and the relevant period of delay that requires to be explained is the one between delivery of the impugned ruling on 5th May 2022, and the date of lodging of the Notice of Appeal on 7th June 2022.
6.The Applicant has explained that the delay of about eighteen (18) days arose from the lack of notice of the changed date of the delivery of ruling, and the time taken to engage an advocate to follow up on the ruling. I have considered the reasons for the delay, and it is notable that the fact of deferment of the impugned ruling and its later delivery without notice is not disputed. In addition, the Applicant has provided evidence of the intervening and consequent actions taken by its advocate, and I find them sufficient and adequate reasons for the delay, which is in the circumstances excusable and not inordinate.
7.On the chances of the intended appeal succeeding, all that I need to be persuaded at this stage is that the Applicant has demonstrated the existence of plausible grounds of appeal and not their merit. The counsel for the Applicant in this respect availed a draft memorandum of appeal, in which the issue of the jurisdiction of the ELC to hear an objection to development permission in the first instance is raised as a ground, which in my view requires further argument and consideration.
8.I therefore find that the Applicant merits the exercise of this Court’s discretion for the above stated reasons. I accordingly allow the Applicant’s Notice of Motion application dated 4th July 2022, on the terms that the Applicant is granted leave to file and serve the Notice of Appeal dated 6th June 2022 and lodged on 7th June 2022 out of time, and the said Notice of Appeal is accordingly deemed to have been properly filed and served. There shall be no order as to the costs of the application.
9.Orders accordingly.
DATED AND DELIVERED AT MOMBASA THIS 16TH DAY OF DECEMBER 2022.P. NYAMWEYA..................................... JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR
