VISRAM, JA
This is an application by way of notice of motion brought under Rule 83 of the Court of Appeal Rules (the Rules) in which the applicant (respondent in the appeal) seeks an order that the notice of appeal dated and lodged in court on 28th May, 2009 in Civil Appeal No. 83 of 2008 be deemed as withdrawn on the following grounds;
“(a) That the respondent's appeal against the applicant in Mombasa Civil Appeal No. 83 of 2008 was dismissed on 22nd May 2009.
(b) That the respondent filed a Notice of Appeal in the superior court dated 28th May 2009.
(c) That proceedings in the superior court were typed and certified on 21st May 2010.
(d) That ever since the proceedings were typed and certified, the respondent has failed to institute an appeal within the appointed time.”
The appeal herein relates to a motor vehicle accident resulting in the death of Gabriel Karanja Maina. His estate successfully sued the owner of the motor vehicle insured by the respondent, and when it failed to recover a…