1. The Hon. Nelly Chepchirchir delivered a ruling on 25th June, 2025. The appellant was aggrieved by that decision. He filed a Memorandum of Appeal dated 30th July 2025 without leave of court. By an application dated the same day, he sought 7 orders, including prayers for a stay of proceedings and a stay of execution of the impugned judgment.
2. Although the Respondent filed no reply affidavit, her counsel filed written submissions in opposition to the application. That notwithstanding, I will consider the application and make my own determination.
3. In my view, which I have stated in many decisions, an appeal filed out of time without leave is a nullity. It cannot serve as a basis for an application for a stay of execution or for proceedings pending appeal. I am guided by the decision of the Supreme Court in Salat Vs IEBC and 7 OTHERS (2014) KESC 12 (KLR), where it was stated that:
“54. To file an appeal out of time and seek the court to extend time is presumptive and inappropriate. No appeal can be filed out of time without leave of the court. Such a filling renders the ‘document’ so filed a nullity and of no legal consequence. Consequently, this court will not accept a document filed out of time without leave of the court.”
4. The appellant should first have filed a Miscellaneous Application seeking leave of the court to appeal out of time. Upon being granted leave, he would have sought the orders he wanted thereafter. Without a valid appeal, the application lacks the substratum. It cannot stand.
5. In the circumstances, I strike out the appeal and the application. In the interest of justice, I grant the appellant leave to appeal out of time. The applicant shall file the appeal within 30 days of the date hereof, failing which the leave hereby granted shall lapse.
6. Given the nature of the matter, each party will bear its own costs.
7. It is so ordered.
Dated and delivered in Nairobi, this 14th day of May 2026.
2. Although the Respondent filed no reply affidavit, her counsel filed written submissions in opposition to the application. That notwithstanding, I will consider the application and make my own determination.
3. In my view, which I have stated in many decisions, an appeal filed out of time without leave is a nullity. It cannot serve as a basis for an application for a stay of execution or for proceedings pending appeal. I am guided by the decision of the Supreme Court in Salat Vs IEBC and 7 OTHERS (2014) KESC 12 (KLR), where it was stated that:
“54. To file an appeal out of time and seek the court to extend time is presumptive and inappropriate. No appeal can be filed out of time without leave of the court. Such a filling renders the ‘document’ so filed a nullity and of no legal consequence. Consequently, this court will not accept a document filed out of time without leave of the court.”
4. The appellant should first have filed a Miscellaneous Application seeking leave of the court to appeal out of time. Upon being granted leave, he would have sought the orders he wanted thereafter. Without a valid appeal, the application lacks the substratum. It cannot stand.
5. In the circumstances, I strike out the appeal and the application. In the interest of justice, I grant the appellant leave to appeal out of time. The applicant shall file the appeal within 30 days of the date hereof, failing which the leave hereby granted shall lapse.
6. Given the nature of the matter, each party will bear its own costs.
7. It is so ordered.
Dated and delivered in Nairobi, this 14th day of May 2026.