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Court of AppealAllowedCivil Application No. E032 of 2023 (Motion dated 22nd February 2023)

Supernova Properties Limited v Kenya Ports Authority & 2 others (Civil Appeal (Application) E004 of 2023) [2025] KECA 1083 (KLR)

Court of Appeal
20 June 2025
AMA. K. MurgorKLDr. K. I. LaibutaGNG. W. Ngenye-Macharia
1,968 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal struck out an appeal filed without required court permission and restored part of a suit a judge wrongly dismissed beyond what was asked.

What this practically means

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Executive summary

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The applicant, Supernova Properties Limited, moved the Court of Appeal at Malindi under rule 86 of the Court of Appeal Rules, 2022 to strike out the 1st respondent's appeal against a ruling of the Environment and Land Court at Mombasa (Sila Munyao, J.) dated 22nd April 2022. The ruling had struck out the 1st respondent's entire suit for want of service of summons on the applicant for over 14 years. The Court framed two issues: whether the 1st respondent had an automatic right of appeal, and whether the Judge was at fault in striking out the whole suit. On the first, the Court held that section 75(1) of the Civil Procedure Act read with Order 43 rule 1 of the Civil Procedure Rules lists orders appealable as of right; an order under Order 5 Rule 2 is not among them, so the 1st respondent needed leave, which it never sought. The appeal was therefore incompetent and was struck out. On the second issue, addressed as obiter, the Court held that the Judge exceeded the relief sought: the applicant's 2019 Motion targeted only the suit against the applicant, not the 2nd and 3rd respondents. Relying on Caltex Oil v Rono, Odukwe v Ogunbiyi and Karin and Challis, the Court reaffirmed that courts cannot grant relief not claimed. It set aside the ruling insofar as it struck out the suit against the 2nd and 3rd respondents, reinstated that suit, struck out the appeal as against the applicant, and awarded the costs of the Motion to the applicant. The application dated 22nd February 2023 was allowed in its entirety.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the 1st respondent had an automatic right of appeal against the ruling and orders of the ELC at Mombasa dated 22nd April 2022
  2. 2.Whether the learned Judge was at fault in dismissing the 1st respondent's suit against the applicant and the 2nd and 3rd respondents in its entirety

Key legal issues

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01

Right of appeal without leave under section 75(1) CPA and Order 43 rule 1

Holding

The 1st respondent had no automatic right of appeal against the ruling striking out its suit, because the order was made under Order 5 Rule 2, which is not among the orders appealable as of right.

Reasoning

Section 75(1) of the Civil Procedure Act read with Order 43 rule 1 of the Civil Procedure Rules, 2010 exhaustively lists orders from which an appeal lies as of right; any other order requires leave. An order under Order 5 Rule 2 (striking out for want of service of summons) is not listed, so leave was required and absent leave the appeal was incompetent and could be struck out under rule 86.

p. 4
02

Whether a court may grant relief not sought (striking out the entire suit)

Holding

The ELC Judge was at fault in striking out the suit against the 2nd and 3rd respondents, since the applicant's Motion of 20th March 2019 sought striking out against the applicant only.

Reasoning

Relying on Caltex Oil (Kenya) Limited v Rono Limited, Odukwe v Ogunbiyi and Karin and Challis v the Attorney General, the Court reaffirmed that a court exceeds its powers by granting relief not claimed; such orders are a recipe for disorder and appellate courts will annul them. The Judge therefore went beyond the application before her in striking out the entire suit.

p. 4

Legal principles established

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  • Where an order appealed from is not among those listed in section 75(1) of the Civil Procedure Act and Order 43 rule 1 of the Civil Procedure Rules, a party must first obtain leave of the superior court before lodging an appeal.
  • A court is without power to grant relief not sought by a party, and a decision that goes beyond the prayers is liable to be set aside.

Court orders

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  1. 1.The 1st respondent's appeal as against the applicant is struck out pursuant to rule 86 of the Court of Appeal Rules, 2022
  2. 2.The learned Judge's ruling dated 22nd April 2022 and the appurtenant order to strike out the 1st respondent's suit against the 2nd and 3rd respondents be and is hereby set aside
  3. 3.The 1st respondent's suit against the 2nd and 3rd respondents be and is hereby reinstated
  4. 4.The costs of the applicant's Motion be borne by the 1st respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AM
majority
KL
majority
GN
majority
On appeal from
Environment and Land Court at Mombasa
Jurisdiction invoked
Rule 86 of the Court of Appeal Rules, 2022

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

we reach the inescapable conclusion that the 1st respondent had no automatic right of appeal against the impugned ruling absent leave of the superior court.
p. 4Leave to appeal required for orders not listed in section 75(1)/Order 43 rule 1
It would amount to the court exercising a power it does not have and rendering decisions without any parameters or borders which would lead to total disorder and abuse of the judicial process.
Courts cannot grant relief not sought by a party
the learned Judge’s ruling dated 22nd April 2022 and the appurtenant order to strike out the 1st respondent’s suit against the 2nd and 3rd respondents be and is hereby set aside;
p. 5Final orders - partial setting aside of the ELC ruling
the 1st respondent’s appeal as against the applicant is hereby struck out pursuant to rule 86 of the Court of Appeal Rules, 2022;
p. 5Final orders - striking out of appeal for want of leave

Issues in the judgment

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minor

Paragraph numbering repeated: two consecutive passages are both numbered '13'.

minor

Names of the 2nd and 3rd respondents and the case number of the suit in the ELC are not stated in the judgment.

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, "Supernova Properties Limited v Kenya Ports Authority & 2 others (Civil Appeal (Application) E004 of 2023) [2025] KECA 1083 (KLR)", Case Analysis (2025). Civil Application No. E032 of 2023 (Motion dated 22nd February 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1083/eng@2025-06-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.