RULING OF THE COURT
The appellant in Civil Appeal No. 86 of 2005, Cedric Mario De Souza (respondent in this application), filed the appeal against Dr. Fredrick Gikandi (first respondent in the appeal who is now the applicant in this application) and The Mombasa Hospital (second respondent) on 4th March, 2005 and served the record of appeal upon both respondents. The first respondent thereafter brought this notice of motion dated 6th dated 6th April, 2005 and filed on the same date. In the notice of motion, the applicant is seeking an order that the notice of appeal lodged on 3rd June, 2004 and memorandum of appeal lodged on 4th March, 2005 be struck out on seven grounds namely:
“(i) The Notice of Appeal has been lodged against a decision not on record.
(ii) The Notice of Appeal has not been served upon the applicant.
(iii) The Memorandum of Appeal and record of Appeal are incurably defective, in that, no appeal lies against a wrongly stated ruling and order.
(iv) The decision delivered on …