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 5^th July, 2004 and lodged on 7^th July, 2005 be struck out with costs.

  When the application came up for hearing on 22^nd 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 5^th July, 2004 and lodged on 7^th July, 2005 be and is hereby struck out with costs to the applicant.

DATED and DELIVERED at NAKURU this 24^th day of FEBRUARY, 2012.