- Before this Court for determination is a Notice of Motion dated 6.2.24 filed by the Respondent/Applicant seeking orders that:
- The Hon. Court be pleased to issue an order striking out the Appellant’s Memorandum of Appeal filed on 26th January, 2024.
- The Hon. Court be pleased to issue an order that execution of the decree issued in the Chief Magistrate Court Case No. 216 of 2018 do proceed.
- The Hon. Court do grant any other further relief it deems fit.
- The grounds upon which the Application is premised are that the Respondent/Applicant’s stated that case is that the parties compromised the Appellant’s application for leave to file appeal out of time by a consent order of 26.10.23. The terms of the consent are inter alia that the Appellant was to deposit the decretal sum of Kshs. 3,601,155/= in the joint account of the parties’ respective advocates within 45 days; file the memorandum of appeal upon the filing of the consent and the record of appeal within 30 days of receiving the certified copies of proceedings and judgment from the lower court registry. The Respondent/Applicant contends that the Appellant has not complied with the consent order in that it has failed to deposit the decretal sum and to file the memorandum of appeal as per the consent order.
- The Appellant opposed the Application by vide a replying affidavit sworn by its counsel, Peter Omwenga on 9.4.24. It was averred that on 24.10.23, its advocates sent a memorandum of appeal through the Court’s email malindicourt@gmail.com which was never assessed for reasons that the Court had not yet endorsed the consent. Eventually the memorandum of appeal was filed on the 26.1.24. It was further averred that all along parties were liaising to open a joint interest earning account with ABSA Bank which was eventually opened on 19.2.24 and the money deposited on 21.2.24. Further that >></><>><><>> >></><> </><><>><>><>><>></><><><>></></><><>><> > >><>><>>>>> </>(>). ><>><>>></></><><>></><><>><>>>. ></><><>></><><>><>><>><>><>></><><>>> ></><><> </></>