[1998] KECA 224 (KLR)
The court held that the applicant, having accepted and received full payment of the decretal sum without any reservation, had affirmed and approbated the judgment and was therefore precluded from attacking it by way of appeal. The applicant was no longer an aggrieved person and could not be allowed to both enjoy the...
Source-derived case information.
- Citation
- [1998] KECA 224 (KLR)
- Parties
- Applicant: Dr. Sunny Samuel; Respondent: Simon M. Mbwika; Respondent: Samuel M. Munyao
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 297 of 1998
- Procedural Posture
- Civil Application / Application for Leave to File and Serve Record of Appeal Out of Time
- Outcome
- application dismissed with costs
- Legal Topics
- Extension of Time, Approbate and Reprobate, Appeal Rights, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dr. Sunny Samuel
Applicant
Simon M. Mbwika
Respondent
Samuel M. Munyao
Respondent
Procedural Posture
Civil Application / Application for Leave to File and Serve Record of Appeal Out of Time
Legal Issues
- 1 Whether the applicant, having accepted and received full payment of the decretal sum without reservation, can be granted leave to file and serve a record of appeal out of time.
- 2 Whether an applicant who has enjoyed the full benefit of a judgment is precluded from appealing against it.
Ratio Decidendi
The court held that the applicant, having accepted and received full payment of the decretal sum without any reservation, had affirmed and approbated the judgment and was therefore precluded from attacking it by way of appeal. The applicant was no longer an aggrieved person and could not be allowed to both enjoy the benefits of the judgment and seek to challenge it. The court relied on the principle established in INDUSTRIAL AND COMMERCIAL DEVELOPMENT CORPORATION VS. KARIUKI GATHECA 1977 KLR 52, which precludes a party from approbating and reprobating a judgment. Consequently, the application for extension of time to file and serve the record of appeal was dismissed.
Court Disposition
application dismissed with costs
Orders
- The application for extension of time to file and serve a record of appeal out of time is dismissed with costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI (CORAM: LAKHA, J.A. (IN CHAMBERS)
CIVIL APPLICATION NO. NAI. 297 OF 1998 (114/98 UR) BETWEEN
DR. SUNNY SAMUEL .......................................APPLICANT
AND
SIMON M. MBWIKA .............................. 1ST RESPONDENT
SAMUEL M. MUNYAO ......................... 2ND RESPONDENT
(Application for leave to file and serve a Record of Appeal out of time from the Judgment and Orders of the High Court of Kenya at Nairobi (Mr. Justice Juma) dated 16th October, 1997
in
H.C.C.C. NO. 1063 OF 1989)
***************
R U L I N G
In the course of his opposition to this application for an extension of time under rule 4 of the Rules of the Court of Appeal Rules (the Rules), Mr. Madara on behalf of the respondents adumbrated on several issues. He stated from the Bar, (without objection from Mr. Hira appearing on behalf of the applicant) that since judgment and decree the applicant had accepted and received full payment of the sum due without any reservation whatsoever and he submitted that since the applicant had obtained the full benefit of the judgment, he cannot now appeal against it while he is still in enjoyment of the benefits as otherwise he would be approbating and reprobating the judgment at the same time. Mr. Hira conceded this fact but submitted that the respondents only complied with the terms of the decree in making payment of the decretal amount in the absence of any order for stay which had not been applied for or obtained.
I have given most anxious consideration to this submission and the point raised. In my judgment, in the circumstances now obtaining, the applicant is precluded from attacking the judgment. He is no longer an aggrieved person.
Nor can he be allowed to approbate and reprobate the judgment at the same time. I am not persuaded that in the circumstances the applicant is entitled to proceed with his appeal.
In not too dissimilar circumstances, Mustafa J.A. (as he then was) delivering the first judgment of the Court of Appeal for East Africa in the case ofINDUSTRIAL AND COMMERCIAL DEVELOPMENT CORPORATION VS. KARIUKI GATHECA1977 KLR 52 was inclined to the view that the applicant had in effect affirmed and approbated the judgment, and had enjoyed and continued to enjoy the full benefit of it and would be precluded from attacking it. Law V-P, agreed in every respect with the judgment prepared by Mustafa, J.A. and so did Musoke J.A.
In view of the above, it is not necessary for me to deal with the other points raised.
It follows that a case for an extension as sought has not been made out. For this reason, the application fails and is dismissed with costs.
Dated and delivered at Nairobi this 16th day of December, 1998.
A.A. LAKHA
.................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR