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Seventh Day Adventist Church East Africa Ltd, Pastor RM Nyakego & EN Aduke v. Masosa Construction Copmany Ltd

(2005) JELR 98177 (CA)

Court of Appeal  •  Civil Appeal 22 of 2004  •  15 Jul 2005  •  Kenya

Coram
Riaga Samuel Cornelius Omolo, Emmanuel Okello O'Kubasu, William Shirley Deverell

Judgement

RULING OF THE COURT

This is an application, by way of notice of motion, stated to have been brought “under rules 42, 80 and 85 of the Court of Appeal Rules and All “Enabling provisions of the law” in which the applicant M/s Masoso Construction Co. Ltd seeks orders that this Court strikes out the record of appeal lodged by the respondents. The grounds upon which the application is brought are stated to be as follows:-

“a) The record of appeal lodged by the respondents herein on 30th day of January, 2004 is incurably defective insofar as same does not contain exhibits material to the determination of this appeal.

b) The record of appeal lodged by the respondents is incomplete.

c) The respondents herein choose (sic) to omit exhibits “D 2 and D 3” which were produced by themselves in the course of trial in the superior court, without leave of the Court in terms of Rule 85(3) of the Court of Appeal Rules. d) The respondents abrogated unto themselves the authority of the superior court Judge/Re…

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