RULING OF THE COURT
The main appeal was scheduled for hearing before us on 21st June, 2006 when learned counsel for the appellant, Mr. Miruka Owuor, drew our attention to a notice of motion taken out on behalf of the appellant on 5th June, 2006. He pleaded that the motion be heard before the main appeal, and so it was.
The motion seeks an order under rule 80 of the Court of Appeal Rules (the Rules):
“That the Respondents’ notice of appeal lodged in Kisumu High Court Civil Case Number 101 of 2003 on 6th June, 2005 and the respondents Notice of cross – appeal dated 5th April, 2006 filed with this Honourable Court on 6th April, 2006 served on the applicant on 16th May, 2006 and any appeal if filed, by the Respondents, be and are hereby struck out.”
The background to the application is this:-
The superior court made its decision in the dispute between the parties on 23rd May, 2005. Both parties soon after intimated, by filing notices of appeal timeously, that they were not satisfied with that …