RULING OF THE COURT
This is an application by way of Notice of Motion brought under Rule 80 of the Court of Appeal Rules in which the applicant, HEBBY ONDIEKI seeks an order that the respondent’s notice of appeal dated 16th October, 2008 be struck out. It would appear that the application is brought on the grounds that the notice of appeal was filed out of time and that it was not served on the applicant.
When the application came up for hearing before us on 24th February, 2011, Mr. G.O. Ogola, the learned counsel for the applicant, submitted that since the judgment of the superior court was delivered on 3rd October, 2008 and the notice of appeal was lodged on 17th October, 2008, then there was no competent notice of appeal before the Court.
In response to the foregoing Mr. Githiru, the learned counsel for the respondent, submitted that the notice of appeal was filed within time.
Rule 75(2) of this Court’s Rules provides:-
“Every such notice shall, subject to rules 84 and 97, be so lodged …