JOSEPH KIANGOI
V.
WACHIRA WARURU & 2 OTHERS

RULING OF THE COURT

This is an application brought under Rules 80 and 42(1) of this Court’s Rules and seeks to strike out the 1^st and 2^nd respondents’ notice and the record of appeal.

The main grounds relied on are, that the respondents/applicants are in breach of rule 76(1) of the Court of Appeal Rules in that they have failed to serve the notice of appeal on Lilian Mogendi, the 3^rd defendant in the High Court Civil Case No.71 of 2001, being a person directly affected by the appeal and that the respondents are not entitled to rely on the proviso to rule 76(1) of the Court of Appeal Rules.

The factual background is that the superior court, Osiemo, J. on 21^st September, 2007 gave judgment in favour of the applicant in a defamation suit in which the respondents did not offer any evidence in rebuttal. Aggrieved by the said judgment, the respondent filed a notice of appeal on 5^th October, 2007 which it failed to serve on Lilian Mogendi the 3^rd defendant in the suit in the superior court. In …