[2025] KEHC 6826 (KLR)

[2025] KEHC 6826 (KLR)

The court found that the ruling sought to be appealed was an Order 40 order, from which an appeal lies as of right and no leave is required. The applicant, having failed to file an appeal within the statutory period and only seeking leave eight months after the ruling, was guilty of inordinate delay. The attempt by the applicant's advocate to seek leave to appeal out of time at the oral hearing, when such relief was not pleaded in the application, was improper and contrary to the principle that parties are bound by their pleadings. The court further held that the prayer to deem the memorandum of appeal as duly filed was untenable, as parties must comply with procedural requirements and...

Citation
[2025] KEHC 6826 (KLR)
Parties
Applicant: Emirates Sky Cargo; Respondent: Paragon Electronics Limited
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
22 May 2025
Case Number
Miscellaneous Civil Application E596 of 2022
Procedural Posture
Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal
Outcome
application dismissed with costs
Judges
NW Sifuna
Legal Topics
Leave to Appeal Out of Time, Stay of Execution, Order 40 Appeals, Delay in Filing Appeal
Source Language
English
Civil Procedure Leave to Appeal Out of Time Stay of Execution Order 40 Appeals Delay in Filing Appeal

Case Brief

Summary, issues, holding and outcome

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Parties

Emirates Sky Cargo

Applicant

Paragon Electronics Limited

Respondent

Procedural Posture

Miscellaneous Application / Ruling on Application for Stay of Execution and Leave to Appeal

Legal Issues

  1. 1 Whether the applicant is entitled to leave to appeal against the ruling delivered on 4th February 2022 after the lapse of the statutory period.
  2. 2 Whether the applicant is entitled to a stay of execution and stay of proceedings pending the intended appeal.
  3. 3 Whether the memorandum of appeal can be deemed as duly filed and served out of time.

Ratio Decidendi

The court found that the ruling sought to be appealed was an Order 40 order, from which an appeal lies as of right and no leave is required. The applicant, having failed to file an appeal within the statutory period and only seeking leave eight months after the ruling, was guilty of inordinate delay. The attempt by the applicant's advocate to seek leave to appeal out of time at the oral hearing, when such relief was not pleaded in the application, was improper and contrary to the principle that parties are bound by their pleadings. The court further held that the prayer to deem the memorandum of appeal as duly filed was untenable, as parties must comply with procedural requirements and...

Court Disposition

application dismissed with costs

Orders

  • The application dated 4th October 2022 is dismissed with costs to the respondent.