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Air Alfaraj Limited v. Raytheon Aircraft Credit Corporation & NAC Airways Limited

(2000) JELR 106250 (CA)

Court of Appeal  •  Civil Appeal (Application) 29 of 1999  •  21 Dec 2000  •  Kenya

Amrittal Bhagwanji Shah, Emmanuel Okello O'Kubasu, Richard Otieno Kwach



The applicant, Air Alfaraj Limited, seeks to have the appellants’ (respondents here) appeal struck out with costs for the reason that the order appealed against is not an order pursuant to the ruling of the superior court delivered on 8th October, 1998. The crux of the arguments, as regards the said order, as advanced by Mr Ahmednasir for the applicant, is that the ruling by the superior court (Mbogholi Msagha, J) arose as a result of a preliminary objection taken by Mr Muigai, counsel for the respondents, and that therefore the order should have taken the form of a preliminary objection being overruled rather than arising out of the hearing of an application under order 39 of the Civil Procedure Rules.

It becomes necessary to inquire into what was before the learned judge. He was to hear an application brought by chamber summons under order 39 rules 1, 2, 3, 5 and 7 of the Civil Procedure Rules and section 3A of the Civil Procedure Act. That application was lodged b…

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