RULING ON REFERENCE TO FULL COURT
What is before us is a reference made to the full Court by M/S Mombasa Development Ltd ., who are the respondents in the main appeal (hereinafter “the applicant”). It is a reference from the decision of a single Judge of this Court (Githinji, J.A) made on 20th December, 2004 dismissing an application by the applicant under rule 4 of the Court of Appeal Rules (the Rules) seeking extension of time to file and serve a notice of motion dated 05.07.04. That notice of motion sought an order to strike out the appeal for reasons specified therein. The appeal itself was filed on 21.05.04 and the record was served on the applicant’s advocates on 24.05.04. If any application was to be filed seeking to strike out the appeal, then under the proviso to rule 80 which is mandatory in language and intent, it ought to have been filed on or before 23.06.04. But no application was filed until 08.07.04. That was some 16 days or so out of time and it was obviously an incomp…