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Martin Kabaya v. David Mungania Kiambi

(2015) JELR 99269 (CA)

Court of Appeal  •  Civil Application 12 of 2015  •  1 Jul 2015  •  Kenya

Coram
Philip Nyamu Waki, Roselyn Naliaka Nambuye, Patrick Omwenga Kiage

Judgement

RULING OF THE COURT

By his application dated 27th March 2015 expressed as brought under Rules 81 and 82 of the Court of Appeal Rules, the applicant Martin Kabaya seeks to strike out the Notice of Appeal dated 13th February 2006. He also prays that the costs of the motion and of the notice of appeal be paid by the respondent. The two grounds on which the application is based appear on the motion as;

The Respondent has failed to institute any appeal within the prescribed time.

The delay/failure in filing the intended appeal is inordinate and inexcusable.

In support of the application, the applicant’s learned counsel Mr.

Cicilio Muraya Mwenda swore an affidavit on 27th March 2015 in which he stated that he filed suit for the applicant at the High Court in Meru in 1999 and, after a full trial, obtained judgment in the sum of Ksh.1,638,090 plus costs and interest. He exhibited the decree.

What then followed is deposed to as follows;

“5. THAT the respondent did not file notice of appeal in time an…

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