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Daniel Chebutuk Rotich & Another v. Emirates Airlines

(2006) JELR 102935 (CA)

Court of Appeal  •  Civil Appli 143 of 2006  •  29 Sep 2006  •  Kenya

Coram
Philip Kiptoo Tunoi, Samuel Elikana Ondari Bosire, Erastus Mwaniki Githinji

Judgement

RULING OF THE COURT

This is a motion by D C R suing on behalf of a minor Master M K C, and on behalf of himself, seeking orders that a record of appeal which was filed on 7th April 2006, by the respondent Emirates Airlines be struck out. The reason advanced in support of the application is that the record of appeal was lodged in court out of time.

The applicants successfully sued the respondent in the superior court for damages, special and general under Nakuru High Court Civil Case No. 368 of 2001. Judgment was pronounched on 27th April 2005. The respondent having been dissatisfied with the decision timeously filed a notice of appeal on 5th May 2005. It was, under our rules, supposed to lodge a record of appeal within 60 days, but it did not do so. It lodged the record of appeal on 7th April 2006, long after the period stipulated and seeks to rely on the proviso to rule 81 of the Rules of this Court.

The proviso to rule 81 aforesaid will not avail a party unless that party requests for …

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