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|Case Number:||Civil Appeal (Application) 312 of 2009|
|Parties:||Premier Diary Limited v Amarjit Singh Sagoo & Kurshbikau Harjeet Singh Chandha (suing as the Legal dministrator of the estate of Harjeet Charan Singh Chandha|
|Date Delivered:||13 Apr 2011|
|Court:||Court of Appeal at Kisumu|
|Judge(s):||Philip Kiptoo Tunoi, Emmanuel Okello O'Kubasu, Erastus Mwaniki Githinji|
|Citation:||Premier Diary Limited v Amarjit Singh Sagoo & another  eKLR|
|Case History:||(Application to strike out the Record of Appeal from the judgment and decree of the High Court of Kenya at Kisumu (Warsame, J.) dated 18th September, 2007 in H.C.C.C. NO. 61 OF 2001)|
|History Docket No:||H.C.C.C. NO. 61 OF 2001|
|History Judges:||Mohammed Abdullahi Warsame|
[Ruling] Civil practice and procedure-striking out-application to strike out the record of appeal-grounds of application, inter alia, that the appellant did not issue any notice of appeal and that the appellant did not seek leave of court to be joined as a party of interested party-whether the appeal was incurably defective-overriding objective-validity of application-Appellate Jurisdiction Act (cap 9) sections 3A & 3B; Court of Appeal Rules (cap 9 Sub Leg) Rules 42 (1) (2), 80; Constitution of Kenya, 2010 Article 159 (1) (d)
|Case Outcome:||Notice of motion dismissed|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
(Application to strike out the Record of Appeal from the judgment and decree of the High Court of Kenya at Kisumu (Warsame, J.)
dated 18th September, 2007
The application which came up for hearing before us on 17th March, 2011 was by way of Notice of Motion expressed as having been brought under
“Rule 42(1) and (2) and 80 of the Court of Appeal Rules. There was only one prayer sought in that application and that was:-
“THAT The Honourable (sic) be pleased to strike out Civil Appeal No. 312 of 2009 with costs.”
“1. That the appellant, namely PREMIER DIARY LIMITED, was not a party in the High Court proceedings in Kisumu High Court Civil Case No. 61 of 2001.
“1. THAT I am Advocate of High Court of Kenya practicing in the name of Gichaba & Company Advocates having the conduct of this matter for and on behalf of the 2nd Respondent/Applicant hence conversant with facts and duly authorized to swear this affidavit.
In opposing the application Mr. W.A. Amoko, the learned Counsel for the appellant/respondent, submitted that the application related to the names “Diary” and “Dairy” which in his view amounted to triviliality which caused no prejudice to the applicant.
Article 159(1) (d) of the Constitution provides:-
“3A (1) The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the appeals governed by the Act.
In view of the foregoing, we find no merit in this application and we order that the Notice of Motion dated 30th January, 2010 be and is hereby dismissed with costs.
Dated and delivered at Kisumu this 13th day of April, 2011.
JUDGE OF APPEAL
JUDGE OF APPEAL
JUDGE OF APPEAL