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Sarah Achieng Salasia v. Fred M.O, David M Muchira & John Kipruto

(2005) JELR 94964 (CA)

Court of Appeal  •  Civil Application 188 of 2004  •  10 Jun 2005  •  Kenya

Coram
Riaga Samuel Cornelius Omolo, Philip Nyamu Waki, William Shirley Deverell

Judgement

RULING OF THE COURT

The application before us is a non-starter. It is a notice of motion taken out by the intended respondent in the main appeal (who was the plaintiff before the superior court) for an order that the notice of appeal filed by the intended appellants (the original defendants) on 01.11.02 be struck out. The filing of the notice of appeal was timeous since the judgment of the superior court was delivered on 23.10.02. It is common ground however, that service of the notice of appeal was made on 11.11.02, which, on the face of it, is 4 days outside the period allowed under Rule 76(1) of this Court’s Rules.

The application to strike out the notice of appeal was however filed on 28.07.04 – about 1 year 8 months after the offending notice of appeal was served. The applicant said nothing about the Rule under which this application was taken out and it is not stated on the face of the application. But the court drew the attention of learned counsel for the applicant, Mr. Ombete, …

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