RULING OF THE COURT
This is an application under Rules 80 and 85 (1) of the Court of Appeal Rules for orders that the notice of appeal and Civil Appeal No. 273 of 2008 be struck out on the main ground that no leave was granted to appeal against the decision of Tanui, J. dismissing the appellant’s counterclaim.
Sometime in December, 2003, four persons filed Kisumu High Court Civil Suit No. 164 of 2003 against Delphis Bank (now Oriental Commercial Bank Ltd.) (bank), the appellant herein, relating to the alleged loan of Shs.40,000,0000/= advanced by the bank to Kibos Sugar Industries on the security of land parcel No. South Wanga/Lureko/1892. The plaintiffs averred, inter alia, that the bank did not advance Shs.40,000,000/= to Kibos Sugar Industries and sought various declarations regarding the security including an order directing the appellant to discharge the charge.
The bank filed a defence and counter-claim maintaining that Shs.40,000,000/= was advanced to Kibos Sugar Industries. The b…