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|Case Number:||Civil Application 215 of 2010|
|Parties:||Kenya Agricultural Research Institute (KARI) v Carol Construction CO. Ltd|
|Date Delivered:||24 Feb 2012|
|Court:||Court of Appeal at Nakuru|
|Judge(s):||Emmanuel Okello O'Kubasu, Roselyn Naliaka Nambuye, Hannah Magondi Okwengu|
|Citation:||Kenya Agricultural Research Institute (KARI) v Carol Construction CO. Ltd  eKLR|
|Case History:||(Application for striking out a notice of appeal from the ruling and order of the High Court of Kenya at Nakuru (Kimaru, J) dated 30th June, 2005 in H.C.MISC. APPL. NO. 99 OF 2004)|
|History Docket No:||H.C.MISC. APPL. NO. 99 of 2004|
|History Judges:||Luka Kiprotich Kimaru|
|Case Outcome:||Application Allowed|
|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|
This is an application brought under Rules 42 and 80 of the Court of Appeal Rules seeking an order that the notice of appeal dated 5th July, 2004 and lodged on 7th July, 2005 be struck out with costs.
When the application came up for hearing on 22nd February, 2012 Mr. L.O. Oluoch the learned counsel appeared for the applicant but there was no appearance for the respondent. Since the respondent’s advocates had been served with the hearing notice we allowed Mr. Oluoch to proceed with the application.
In his submissions Mr. Oluoch relied on the affidavit of James Mbaluku, who described himself as an Administrative Officer of the Kenya Agricultural Research Institute (KARI) and on the following grounds:-
“a. Some essential step in the proceedings has not been taken in that the record of appeal has not been filed five years following the filing of the Notice of Appeal;
“Subject to rule 115 an appeal shall be instituted by lodging in the appropriate registry within sixty days of the date when the notice of appeal was lodged.”
From the foregoing there can be no doubt that the respondent lost interest in its appeal. Therefore this application cannot be resisted. We accordingly allow the application and order that the notice of appeal dated 5th July, 2004 and lodged on 7th July, 2005 be and is hereby struck out with costs to the applicant.
DATED and DELIVERED at NAKURU this 24th day of FEBRUARY, 2012.