JUDGMENT OF OUKO, (P)
A decision was taken by the President of the Court to constitute a bench of five judges to hear this appeal after the Court (Waki, Nambuye and Koome, JJ.A) found the necessity of doing so on the basis of a letter dated 24th October, 2016 from the firm of Sisule Munyi Kilonzo and Associates, representing the 2nd respondent. In the letter, it was contended, like in this appeal that, from the decisions of the courts, including this Court there was no unanimity on the application of Order 45 of the Civil Procedure Rules; that whereas in some cases this Court has held that a party who has filed a notice of appeal is barred from taking out an application for review under Order 45, in other cases it has found that a notice of appeal is a mere expression of an intention to appeal and does not bar a party wishing to apply for review of a decision. Cited in support of the former category is this Court’s decision in the case of Kisya Investments Limited v. The Attorney Gener…