Kayo & another v Kambicha (Environment and Land Appeal E001 of 2025) [2026] KEELC 1790 (KLR)
The bottom line
#Kenya's Environment and Land Court in Garissa allowed late filing of a land appeal, ruling typographical errors and delays with reasonable explanations should not defeat justice.
What this practically means
#Executive summary
#Key legal issues
#Whether the misdescription of the court in the heading of the application rendered it incompetent
The typographical error referring to the High Court did not affect the substance of the application or prejudice the respondent
The application arose from Garissa CMCC ELC Case No. E005 of 2023, was filed before the Environment and Land Court and placed before an ELC Judge. Section 100 of the Civil Procedure Act empowers the court to amend any defect or error in proceedings to determine the real question in controversy. Following Ali Okata Watako v Mumias Sugar Co. Ltd, a discrepancy attributable to typographical error is not a sufficient basis to strike out proceedings.
Whether an affidavit sworn by the applicant's advocate on contentious matters is defective
The affidavit was proper because the matters deposed to arose from counsel's conduct of the case and were within his personal knowledge
Order 19 Rule 3(1) of the Civil Procedure Rules confines affidavits to facts the deponent can prove of his own knowledge. Rule 9 of the Advocates Practice Rules prohibits an advocate from appearing in a case in which he may be required to give evidence. However, where the deposed matters concern steps personally taken by counsel - court attendances, registry inquiries, requests for proceedings and judgment - the affidavit does not offend Order 19 Rule 3 and is properly on record.
Whether the applicants demonstrated sufficient cause for extension of time under Section 79G
The applicants reasonably demonstrated sufficient cause warranting the exercise of discretion in their favour
The judgment was delivered on 11th June 2025 and the statutory period lapsed on 11th July 2025. The applicants explained that their counsel was absent at delivery, did not receive the directed notice, confirmed delivery of judgment only on 28th July 2025, and that certified copies were only available on 12th September 2025, after which the application was promptly filed. The respondent asserted notice was issued via CTS and SMS but placed no material before the court demonstrating such notice was served on the applicants.
Who should pay the costs of the application
Costs should abide the outcome of the appeal since the appeal has not yet been filed, heard and determined
Although Section 27 of the Civil Procedure Act provides that costs follow the event, the court considered that the application concerns leave to file an appeal out of time and the appeal itself remains pending. The just order was therefore that costs in the application abide the outcome of the appeal rather than be awarded to either party at this stage.
Legal principles established
#- Typographical or clerical errors that do not go to the substance of the matter should not defeat a litigant's claim
- An affidavit sworn by counsel is competent where the matters deposed to concern actions taken by counsel in the conduct of the case and are within counsel's personal knowledge
- Under Section 79G of the Civil Procedure Act the court retains discretion to admit an appeal out of time where good and sufficient cause is shown
Court orders
#- 1.The application is allowed in terms of prayer (2)
- 2.The memorandum of appeal to be filed and served in fourteen (14) days
- 3.The record of appeal to be filed and served within sixty (60) days
- 4.Costs in the application to abide the outcome of the appeal
- On appeal from
- Chief Magistrate's Court (Garissa)
- Garissa CMCC ELC Case No. E005 of 2023
- Jurisdiction invoked
- Section 79G of the Civil Procedure Act (Chapter 21, Laws of Kenya) - admission of appeal out of time; Section 100 (amendment of defects)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kayo & another v Kambicha (Environment and Land Appeal E001 of 2025) [2026] KEELC 1790 (KLR)", Case Analysis (2026). ELC Garissa (Judicial Review/Extended Time application arising from Garissa CMCC ELC Case No. E005 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1790/eng@2026-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.