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Samson Mbui Obadiah v. David Mithamo Gatitu

(2014) JELR 94517 (CA)

Court of Appeal  •  Civil Appeal 3 of 2013  •  5 Feb 2014  •  Kenya

Alnashir Ramazanali Magan Visram, Martha Karambu Koome, James Otieno Odek



Before us is an appeal from the judgment of the High Court (Ong'undi, J.) dated 20th December, 2012. At the hearing of this appeal, the respondent made an application under Rule 104 (b) of the Court of Appeal Rules (the Rules) seeking an order striking out the appeal for being incompetent as drawn. This Court directed for both the application and the appeal to be argued together. Therefore this judgment is in respect of both the respondent's application and the appeal.

The genesis of the appeal herein is that appellant vide an amended Plaint filed in the Senior Resident Magistrate's Court at Kerugoya sought a refund of Kshs. 314,000/= from the respondent as per an undertaking dated 12th August, 2004. It was the appellant's case that on 5th June, 2004 he lent Kshs. 320,000/= to the respondent with the understanding that he would refund the same and an agreement (loan agreement) to that effect was executed by the parties. Thereafter, on 12th August, 2004 the responde…

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