Changilwa v Kanangu
The bottom line
#Kenya's Environment and Land Court allowed a late land appeal, ruling that short delays can be forgiven and courts can fix their own clerical errors.
What this practically means
#Executive summary
#Key legal issues
#Whether the Respondent's preliminary objection was properly before the court
The objection was properly filed as it raised pure points of law on the competence of the appeal
The court applied the Mukisa Biscuits test, holding that the issues raised - that the appeal was filed out of time without leave and should be struck out - were serious and pure issues of law, not fanciful or remote, and thus properly determinable at the preliminary stage before full hearing.
Whether the court could amend its ruling of 7th December 2021 to correct clerical errors in dates
Yes - the court found a clerical error and allowed amendment under Sections 99 and 100 of the Civil Procedure Act
The court perused its own ruling, confirmed the Memorandum of Appeal dates were wrongly stated as 2020/2021 instead of 2010, and relied on Sections 99 and 100 and the Leonard Mambo Kuria decision, which treats such correction as an exception to functus officio.
Whether time should be extended for lodging the Memorandum of Appeal filed 3 days late
Yes - the delay of about 3-5 days was explained (lack of funds, counsel's failure to advise) and the appeal was arguable with no prejudice to the Respondent
Applying the Salat and Thuita Mwangi parameters, the court found the reasons for delay reasonable on social justice grounds, the memorandum arguable with chances of success, and no prejudice to the Respondent, invoking constitutional overriding objectives (Articles 25(c), 47, 50, 159) to allow the extension.
Legal principles established
#- A preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised where facts must be ascertained or discretion exercised
- Sections 99 and 100 of the Civil Procedure Act vest a general power to correct clerical errors and are an exception to the functus officio doctrine
- Extension of time is an equitable remedy available to a deserving party at the court's discretion, and the applicant bears the burden of laying a basis
Court orders
#- 1.Preliminary objection dated 23rd September 2022 disallowed for lack of merit
- 2.Notice of Motion applications dated 25th July 2022 and 3rd October 2022 allowed
- 3.Ruling and order of 7th December 2021 amended so the Memorandum of Appeal reads 26th August 2010 (not 2020) and the filing date reads 3rd September 2010 (not 2021)
- 4.Time for lodging the Memorandum of Appeal extended and the Memorandum of Appeal dated 26th August 2010 and filed 3rd September 2010 deemed properly filed under Section 79B & G of the Civil Procedure Act and Order 50 Rules 6 and 7 of the Civil Procedure Rules, 2010
- 5.Appeal to be heard and disposed of within 180 days (by 19th February 2024), with mention for directions on 5th October 2023 under Order 42 Rules 11, 13 and 16
- 6.Each party to bear their own costs
- On appeal from
- Magistrate's Court (Chief Magistrate's Court, Mombasa)
- CMCC No. 315 of 2009
- Jurisdiction invoked
- Appellate jurisdiction of the Environment and Land Court under the Environment and Land Court Act, No. 19 of 2011 (Sections 3 and 13), hearing an appeal from the subordinate court
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.
- Omedo v Said & another (Civil Appeal 37 of 2019) [2024] KEELC 5725 (KLR)[2024] KEELC 5725 (KLR)29 Jul 2024applied
Cite this brief
#Cite this brief
Caselaw, "Changilwa v Kanangu", Case Analysis (2023). Environment and Land Appeal E042 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20785/eng@2023-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.