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WANDIRI KARIMI & LYDIA KARIMI v. GHALIB KHAN & NEER CONSTRUCTION

(2005) JELR 94516 (CA)

Court of Appeal  •  Civil Appeal 163 of 2000  •  13 May 2005  •  Kenya

Coram
Philip Kiptoo Tunoi, Emmanuel Okello O'Kubasu, Erastus Mwaniki Githinji

Judgement

RULING OF THE COURT

The applicant who is the respondent in the appeal seeks an order under rule 80 of the Court of Appeal Rules that the appeal be struck out on the ground that the Record of Appeal does not comply with Rule 85(1), (c) as the written statement of Defence and parts of Amended Defence are omitted. The application is supported by the affidavit of Mr. Harmesh Kumar Mahan – Advocate for the applicant.

Mr. Charles Kariuki, learned counsel for the respondents, has filed a replying affidavit. The application is opposed mainly on the ground that it was filed 41⁄2 years since the service of the record of appeal.

By proviso to Rule 80 of the Court of Appeal Rules, an application to strike out the notice of Appeal or the appeal should not be brought after the expiry of thirty days from the date of service of the record of appeal on the respondent.

We are satisfied that the record of appeal was served on M/s Mbae Mwarania and Co. Advocates who were then on record for the applicant on 1…

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