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ELCAllowedEnvironment and Land Appeal E042 of 2021· [2023] KEELC 20785 (KLR)

Changilwa v Kanangu

Environment and Land Court
12 July 2023
6,520 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This omnibus ruling by the Environment and Land Court at Mombasa (L.L. Naikuni, J) determined three pleadings in an appeal against a summary judgment of 28th July 2010 in CMCC No. 315 of 2009, which had ordered the Appellant to give vacant possession of a Swahili house on Plot No. 622/44 Kongowea, Maweni, sold to the Respondent for Kshs 800,000. The Appellant filed two motions: one seeking correction of clerical errors in the court's ruling of 7th December 2021 (which wrongly recorded the Memorandum of Appeal as dated 26th August 2020 and filed 3rd September 2021, rather than 26th August 2010 and 3rd September 2010), and another seeking extension of time to lodge the Memorandum of Appeal, which was filed three to five days out of time. The Respondent raised a preliminary objection contending the appeal was incompetent, having been filed out of time without leave, and should be struck out. The court framed four issues. Applying Mukisa Biscuits, it held the objection raised pure points of law and was properly before it. It found a clerical error in the 7th December 2021 ruling and corrected it under Sections 99 and 100 of the Civil Procedure Act, relying on Leonard Mambo Kuria on the functus officio exception. Applying the Salat and Thuita Mwangi principles, it found the short delay explained by lack of funds and counsel's failure to advise, the appeal arguable, and no prejudice to the Respondent. The preliminary objection was disallowed, both applications allowed, the Memorandum of Appeal deemed properly filed, the appeal set down for disposal within 180 days, and each party ordered to bear its own costs.

Key legal issues

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01

Whether the Respondent's preliminary objection was properly before the court

Holding

The objection was properly filed as it raised pure points of law on the competence of the appeal

Reasoning

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.

p. 8
02

Whether the court could amend its ruling of 7th December 2021 to correct clerical errors in dates

Holding

Yes - the court found a clerical error and allowed amendment under Sections 99 and 100 of the Civil Procedure Act

Reasoning

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.

p. 8
03

Whether time should be extended for lodging the Memorandum of Appeal filed 3 days late

Holding

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

Reasoning

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.

p. 11

Legal principles established

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  • 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

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  1. 1.Preliminary objection dated 23rd September 2022 disallowed for lack of merit
  2. 2.Notice of Motion applications dated 25th July 2022 and 3rd October 2022 allowed
  3. 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. 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. 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. 6.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure Act, Cap. 21Section 80
  • Civil Procedure Act, Cap. 21Section 99
  • Civil Procedure Act, Cap. 21Section 100
  • Civil Procedure Act, Cap. 21Section 79G
  • Civil Procedure Act, Cap. 21Section 95
  • Civil Procedure Act, Cap. 21Section 79B
  • Civil Procedure Act, Cap. 21Sections 1A, 1B, 3A
  • Civil Procedure Rules, 2010Order 45
  • Civil Procedure Rules, 2010Order 50 Rules 6 and 7
  • Civil Procedure Rules, 2010Order 42 Rules 11, 13, 16 and 21
  • Constitution of Kenya, 2010Articles 10, 25(c), 47, 50(1) & (2), 159(1) & (2)
  • Environment and Land Court Act, No. 19 of 2011Sections 3 and 13
  • Land Registration Act, No. 3 of 2012Section 101
  • Land Act, No. 6 of 2012Section 150

Cases cited (11)

  • Lucy Njoki Waithaka v Tribunal appointed to investigate the conduct of Lucy Njoki Waithaka & Another; Kenya Magistrates and Judges Association (Interested party)
    [2019] eKLR

    A court of record must keep accurate records that cannot be collaterally impeached

  • Kennedy Korir Sargo v KB Bank Limited & Another
    [2021] eKLR

    Court's power to allow an appeal filed out of time on satisfactory justification

  • Silas Kanyolu Mwatha v Joseph Kavive James
    [2021] eKLR

    Parameters for enlargement of time to lodge an appeal

  • Mukisa Biscuits Manufacturing Co. Limited v West End Distributors Limited
    [1969] EA 696

    Definition and threshold of a preliminary objection as a pure point of law

  • Attorney General & Another v Andrew Mwaura Githinji & another
    [2016] eKLR

    Scope, nature and meaning of a preliminary objection

  • Leonard Mambo Kuria v Ann Wanjiru Mambo
    (2017) eKLR

    Sections 99 and 100 as exception to functus officio; power to correct records

  • Jersey Evening Post Limited v Ai Thani
    [2002] JLR 542

    Doctrine of functus officio does not prevent correction of clerical errors

  • Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others

    Principles governing extension of time

  • Thuita Mwangi v Kenya Airways Limited
    (2003) eKLR

    Grounds for allowing an appeal to be filed out of time

  • Kamlesh Mansukhalal Damki Patni v Director of Public Prosecution & 3 others
    [2015] eKLR

    Courts exist to dispense justice; judicial authority derived from the people

  • Supermarine Handling Services Limited v Kenya Revenue Authority
    [2010] eKLR (Civil Appeal 85 of 2006)

    Costs follow the event unless the court for good reason otherwise orders

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

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.