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Samuel Mwehia Gitau v. Elijah Kipn'geno Arap Bii & Kenya Commercial Bank

(2006) JELR 94068 (CA)

Court of Appeal  •  Civil Appeal Appli 255 of 2004  •  9 Jun 2006  •  Kenya

Philip Kiptoo Tunoi, Philip Nyamu Waki, William Shirley Deverell



There is no opposition to the main issue raised in the application before us and indeed there cannot be as there is an array of authorities from this Court in support of the application. It is a notice of motion taken out by the 1st respondent in the main appeal, Samwel Mwehia Gitau seeking an order under rule 85(1) (c) of the Rules of this Court that the notice of appeal filed on 23rd September 2004 and the memorandum of appeal dated 19th November, 2004 together with the entire record of appeal be struck out. Rule 85(1) (c) merely provides for the contents of a record of appeal and the copies of documents that must be contained therein, amongst them the pleadings. It is rule 80 of the rules which provides for striking out where an essential step in the proceedings has not been taken. And the essential step which the applicant puts forward is that the record of appeal does not contain a copy of the original plaint, and the original statement of the defendant’s defen…

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