PAMM & another (Minor suing through the 1st appellant her father & next friend) v Shoprite Checkers Kenya Limited; Attorney General (Interested Party) (Civil Appeal (Application) E817 of 2023) [2024] KECA 1143 (KLR)
The bottom line
#The Court of Appeal ruled there is no legal route to challenge a Deputy Registrar's decision on filing timelines, and dismissed the challenge with costs.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there is provision in the Court of Appeal Rules for a reference to a single Judge from the discretionary decision of the Deputy Registrar under Rule 90
- 2.Whether, if the reference were competent, the Court could interfere with the Deputy Registrar's exercise of discretion
- 3.Whether the Deputy Registrar's ruling was tainted by bias, unfairness or illegality
Key legal issues
#Competence of a reference to a single Judge from the Deputy Registrar's discretionary ruling under Rule 90
The reference is incompetent because Rule 90 contains no provision for referral of the Deputy Registrar's decision to a Judge
Rule 90 confers on the Deputy Registrar a discretionary power to grant or decline leave to file a supplementary record of appeal. Unlike other rules such as Rule 14(4), Rule 90 makes no provision for a dissatisfied party to require the decision to be referred to a Judge. The Obado authority, relied on by the respondent, holds that the Rules provide no reference or review mechanism for such discretionary orders. The reference therefore lacks a legal foundation.
Interference with the Deputy Registrar's exercise of discretion
Even if the reference were competent, the Court could not interfere because the ruling was a lawful exercise of judicial discretion
The Deputy Registrar granted the very relief sought in prayer 4 (leave to file a supplementary record), differing only in allowing 30 rather than the 60 days requested. Interference with discretionary decisions is limited per Mbogo v Shah and United India Insurance v East African Underwriters. The applicants themselves created the bind by seeking leave prematurely before obtaining some of the documents. The Deputy Registrar could not be faulted.
Alleged bias and procedural unfairness by the Deputy Registrar
The complaints of bias, nonexistent jurisdiction and unfairness did not displace the competence defect in the reference
The applicants alleged that the Deputy Registrar assumed nonexistent jurisdiction by allowing the respondent to respond out of time, was biased, and exceeded her mandate in extending time. The court did not accept these as grounds capable of sustaining an otherwise incompetent reference, noting that the applicants were aggrieved by a ruling patently favourable to them. The overriding-powers argument was not sustained.
Legal principles established
#- The Court of Appeal Rules do not provide for a reference to a Judge or the full Court of the Deputy Registrar's discretionary order under Rule 90 granting leave to file a supplementary record of appeal, nor do they empower the Court to review such a decision
- An appellate court will not interfere with the exercise of judicial discretion by a Deputy Registrar except in limited circumstances
- A party cannot presume that leave, once sought, must be granted on the terms sought
Court orders
#- 1.The reference is dismissed
- 2.Costs of the reference to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya
- Not stated
- Jurisdiction invoked
- Reference to a single Judge from the decision of the Deputy Registrar under the Court of Appeal Rules, 2022 (analogised to Rule 14(4); Rule 90 confers the underlying discretion)
Relief refused
#Reference against the Deputy Registrar's ruling of 20th March 2024, including complaint that leave was limited to 30 days instead of the 60 days sought
No provision permits a reference from the Deputy Registrar's Rule 90 discretionary decision, and the ruling was a proper exercise of judicial discretion
Costs
Dismissed with costs to the respondent
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.
The Rules do not provide for a reference to full Court of the discretionary order of the deputy registrar nor empower the full Court to review such a decision.
There is no provision under Rule 90 for a person who is dissatisfied with the decision made thereunder to require the decision to be referred to a Judge as is the case, for example, under Rule 14(4) of the Rules.
It is, with respect, presumptuous for any party to proceed on the basis that leave, when sought must be granted, and be granted on the terms sought by an applicant.
Overall, I find that “the reference” has no merit. It is dismissed with costs to the respondent.
Issues in the judgment
#The coram is shown by a certification block naming only S. Gatembu Kairu, JA, as a single Judge; the reference is to a single Judge, so the title 'JUDGMENT OF THE COURT' style coram is absent and the bench is a single judge rather than a full appellate panel
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "PAMM & another (Minor suing through the 1st appellant her father & next friend) v Shoprite Checkers Kenya Limited; Attorney General (Interested Party) (Civil Appeal (Application) E817 of 2023) [2024] KECA 1143 (KLR)", Case Analysis (2024). Not stated in the judgment (appeal against High Court Petition; reference from ruling of 20th March 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1143/eng@2024-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.