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Stephen Kamunyu Ndwaru & Nyiha Ndwaru v. Florence Wambui Kungu

(2015) JELR 94777 (CA)

Court of Appeal  •  Civil Application Nai. 7 of 2014  •  19 Jun 2015  •  Kenya

Mohammed Abdullahi Warsame, James Otieno Odek, Fatuma sichale



The applicants STEPHEN KAMUYU NDWARU and ESTHER NYIHA NDWARU filed a Notice of Motion application dated 16th January, 2014 seeking an order that the Notice of Appeal dated 8th August 2005 be struck out. The application was supported by the affidavit of DENNIS SILAS MBICHI MBOROKI, counsel for the applicants sworn on 16th January 2014, in which he deponed that the respondent filed a Notice of Appeal on 8th August 2015 following the ruling of Koome, J (as she then was) delivered on 5th August 2005; that to-date no record of appeal has been prepared and served upon the applicants and finally that the delay is inordinate.

In response, the respondent FLORENCE WAMBUI KUNGU swore an affidavit dated 4th July, 2014 wherein she attributed the failure to file the record of appeal to non-availability of the High Court file; that a letter bespeaking the proceedings was made on 8th August 2005, 3 days after the impugned ruling; that the letter from the applicant’s counsel addresse…

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