https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9507

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT MAKUENI** **MISC. COMMERCIAL APPLICATION NO. E004 OF 2025** **ALFRED KYALO KALOKI, THERESIA NDINDA KALOKI & PURITY MBITHE MULI (**Suing as the Administrators of the estate of **LUCIA MUNYIVA KALOKI (DECEASED)……………………………….……APPLICANTS** **-VERSUS-** **DAVID KISAKA OMIDO ………………………………..………….......1ST RESPONDENT** **MODERN COAST CO. LTD ……………………………….…….......2ND RESPONDENT** **HADAR EXPRESS LTD …………………………………………….......3RD RESPONDENT** **RULING** 1. The Application for determination before me is dated 05/09/2025. It is brought under **Order 51 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules, Section 95** **of the Civil Procedure Act** and all other enabling provisions of the law seeking the following orders; 2. **THAT the honorable Court be pleased to enlarge time and give the Applicants leave to file an Appeal out of time.** 3. **THAT the costs of the Application be in the cause.** 4. The Application is supported by the grounds set out on its face and the affidavits of Faith Mutio Mutuku and Theresia Ndinda Kaloki sworn on the same day. Faith Mutio an Advocate of the High Court of Kenya having conduct of this matter deponed that, upon delivery of the trial court judgment on 14/05/2025, the Applicants’ Advocate concentrated on following up payment and inadvertently failed to notify the Applicants of the judgment until 20/08/2025. A copy of the judgment and a letter to the claimants is exhibited as **FMM 1 & II** respectively. 5. That, upon notifying the Applicants, they took time to understand it and consult with their family and gave instructions to appeal on 29/08/2025. A copy of the instructions letter is exhibited as **FMM III.** That, the Applicants are dissatisfied with the multiplicand and multiplier adopted by the trial court hence the appeal raises arguable issues with high chances of success. 6. She averred that upon the Applicants’ Advocates getting instructions to appeal, they took 8 days to prepare and file this application. That, the delay is not inordinate and is excusable. That, counsel’s mistake should not be visited on the Applicants. That, it will be prejudicial and unfair to the Applicants if this application is not granted. She deposed that there will be no prejudice to the Respondents if the application is granted. 7. Theresia Ndinda Kaloki deposed that she is one of the Administrators in this matter and has authority to act from her co-administrators hence competent to swear the affidavit. The rest of the depositions are a reiteration of the depositions in the Affidavit of Faith Mutio Mutuku hence no need to reproduce them. 8. The application is opposed through the Replying Affidavit sworn by David Kisaka Omido on 30/03/2026 where he deposed that according to information from his Advocates, the reasons advanced in the application are not valid. That, a litigant has a duty to actively follow up on the progress of his case and cannot absolve himself of that responsibility by merely relying on their Advocate. 9. That, prior to the delivery of the impugned judgment, the last appearance in court was on 04/11/2024 when the matter was scheduled for judgment but did not proceed due to transfer of Hon. Ireri. 10. That, the Applicants’ allegation that they were not notified of the judgment until 20/08/2025 shows that they took no steps to follow up on the status of their case for 9 months. That, this conduct demonstrates lack of diligence and interest in prosecution of their case. 11. That according to advice from his Advocates, the existence of an arguable appeal with prospects of success is not in itself a sufficient ground for extension of time. She averred that the delay must be satisfactorily explained and that the explanation given amounts to the Applicants’ own failure to follow their case which amounts to indolence and inaction. That, equity does not aid the indolent and this court should decline to exercise its discretion in favor of the Applicants. 12. Further, it was deposed that while it is true that a party need not be punished for mistakes of his Advocate, the same is not a blanket excuse to cover litigants who in one way or another fail to abide by court’s timeline. That, the Applicants’ Advocates commenced execution and actively pursued payment as early as June 2025 but they did not take any steps to file the application until much later which demonstrates that the application is an afterthought. A bundle of correspondences is exhibited as **DKO 2** which reflects the Applicant’s inactivity. 13. That, the Applicants’ Advocate followed up on payment and ensured that the entire decretal sum plus costs were paid as per the payment confirmation exhibited as **DKO 3**. That, the pursuit of the decretal sum is a clear demonstration that the Applicants were at all material times aware of the judgment and had instructed their Advocates to pursue the execution and not to pursue an appeal. 14. That, according to the Applicants, they instructed their Advocates to appeal on 29/08/2025 but the application was not filed until 05/09/2025 without any certificate of urgency attached. That, this is clear demonstration of lack of urgency and diligence on the part of the Applicants and their Advocates. 15. It was deposed that, procedural rules and timelines are fundamental to the administration of justice and must be complied with, failure to which a party must furnish a satisfactory explanation. That, the Application is an abuse of the process of court. 16. In rejoinder, a Further Affidavit was sworn by Theresia Ndinda Kaloki on 11/05/2026 where she deposed that the matter was pending judgment before Hon. Ireri for quite a while and they followed up together with their counsel very many times. That, in August 2025, their counsel informed them of the contents of the judgment and explained their right to appeal in the event that they were dissatisfied**.** 17. In her words, they acted diligently and have been very interested in this matter hence the reason why their Advocates realized that they had not notified them of the judgment. 18. That, the delay has been adequately explained hence the court should exercise discretion in their favor. That their Advocates were representing them at the time of delivery of judgment hence did not need fresh instruction to pursue the decretal sum. 19. Directions were given that the application be canvassed through written submissions. The only submissions on record are for the Respondents. 20. The issues for determination were identified to be:- 21. **Whether the Applicants, having executed the judgment and enjoyed the fruits thereof are estopped from seeking leave to appeal out of time under the doctrine of approbation and reprobation?** 22. **Whether the Applicants have demonstrated reasonable delay and whether the delay has been satisfactorily explained?** 23. **Whether the Application offends the principle of finality of litigation and if allowed, will prejudice the Respondents.** 24. As to whether the Applicants are estopped from seeking leave, reference was made to **Halsbury’s Laws of England (4th ed. Reissue 2003) Vol. 16 (2) at para 962** where approbation and reprobation are explained thus; 25. **That, the person in question, having a choice between two courses of conduct, is to be treated as having made an election from which he cannot resale;** 26. **That, he will not be regarded in general at any rate as having so elected unless he has taken the benefit under or arising out of the course of conduct which he has first pursued and with which his subsequent conduct is inconsistent.** 27. It was submitted that having executed the judgment and received the decretal sum in full, the Applicants unequivocally affirmed and accepted the judgment. That, they cannot now turn around and challenge it through an intended Appeal. Reliance was placed on the following cases; 28. **Dr. Sunny Samuel -vs- Simon M. Mbwika & Another [1998] eKLR where the Court of Appeal (Lakha JJ.A) stated;** **“…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.** **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.”** 1. **Premier Food Industries Limited -vs- Public Health Prosecutor – Kisumu [2021] eKLR where the court (Fred A. Ochieng’ J) stated;** **“29. Secondly, I note that the Applicant had already received payment of the taxed costs. The said payment was made on the basis of the decision by the Taxing Officer, who had awarded the costs in the sum of Kshs 200,550/=.** **30. Having received payment on the strength of the Ruling dated 16th September 2020, the Applicant was now seeking leave to challenge the very same Ruling. In effect, the Applicant was seeking to challenge the validity of the decision from which it has been conferred with a benefit, whilst at the same time retaining the said benefit.** **32. It is well settled that the court cannot approve an attitude in which a party approbates and reprobates. For that reason, too, the application before me fails.”** 1. **Lucas Adhola Olal -vs- Patrick Mutua Nderitu [2017] eKLR where the court (L. Njuguna J) stated;** **“The court notes that counsel for the appellant has not denied receiving the cheque. Infact, the submissions by the appellant are very silent on that issue. In the circumstances, the conclusion that this court would make is that the decretal sum was indeed paid. The respondent’s letter dated 24th January, 2011 is very clear that the same was paid in full and final settlement. The fact that the appellant’s advocate accepted the cheque and went ahead to encash the same, implies that they received it on the same terms that it was forwarded by the respondent and that was “in full and final settlement”** 1. **Wanjiru -vs- Starshine Blue Investment Limited & another [2025] KEHC 14261 (KLR) [2025] KEHC 14261 (KLR) where the court (G.L Nzioka J) stated;** **“45. This court fully concurs with the afore decisions that once a party accepts full payment of the decretal sum as a final and full payment then they cannot be heard to aver that they are not satisfied with the judgment of the trial court from which they have fully drawn and enjoy a benefit.** **46.Furthermore, it is a fact that, the reason why an aggrieved party files an appeal is because they are dissatisfied by the decision rendered by the trial court. If that be so, what does the conduct of an appellant who files an appeal after receiving full payment without reserving the right imply? 47.Moreover, when the respondent makes a payment in full and final settlement of the matter, and the appellant receives the same without indicating they will pursue the matter further, the respondent has a legitimate expectation to be released from litigation.** **48.In the instant matter the appellant did not intimate that, she would be pursuing her right of appeal. And so as much as I can perceive from the record that she has an arguable appeal, her conduct of approbating and reprobating denies her an opportunity to be heard** **49.In the given circumstances the appeal cannot be heard on merit. It is consequently disallowed and/or dismissed with costs to the respondents.”** 1. It was submitted that the Respondents had a legitimate expectation to be released from litigation when the Applicants accepted the full payment without indicating that they would pursue the matter further. 2. As to whether the delay has been satisfactorily explained, reference was made to **Section 79G** **of the Civil Procedure Act** for the submission that the Applicants had 30 days to lodge the Appeal but they filed the present application after approximately 114 days from the date of delivery of judgment which translates to about 84 days beyond the statutory period. It was contended that the reasons advanced by the Applicants do not constitute a sufficient or reasonable explanation. 3. It was submitted that parties have a responsibility to show interest and follow up on their cases even when they are represented by counsel. Reliance was placed on the case of **Karinga Gaciani & 11 Others -vs- Ndege Kabibi Kimanga & Agnes Wangechi App. No. E004 of 2023** where the Supreme Court observed; **“Courts have always emphasized that parties have a responsibility to show interest in and to follow up on their cases even when they are represented by counsel, and it does not matter whether the party is literate or not.”** 1. It was acknowledged that a party need not be punished for the mistakes of his Advocates but contended that the same is not a blanked excuse to cover litigants who in one way or another fails to abide by court timelines. Reliance was placed on the case of **Karinga Gaciani -vs- Ndege Kabibi (supra)** where the Supreme Court stated; “**Whereas mistakes of an advocate ought not to be visited upon a litigant, there must be cogent and credible evidence, the applicants have not demonstrated any efforts or due diligence, through evidence or correspondence of the follow up with the advocates or to pursue their rights as we found in** [**George Kang’ethe Waruhiu v Esther Nyamweru Munene & another**](https://new.kenyalaw.org/akn/ke/judgment/kesc/2021/42) **Civil Application No 18 of 2020 [2021] eKLR. It is not enough for a party to simply blame the advocates on record for all manner of transgressions. Courts have always emphasized that parties have a responsibility to show interest in and to follow up on their cases even when they are represented by counsel, and it does not matter whether the party is literate or not.”** 1. It was submitted that the application is clearly an afterthought and an abuse of court process, instituted only after the Applicants had substantially enjoyed the fruits of the judgment. Reliance was placed on the case of **Bi-Mach Engineers Limited -vs- James Kahoro Mwangi [2011] eKLR** where the Court of Appeal (Waki JA) stated; **“I have examined the affidavit in support of the application and it is my view that it falls short of candidness and betrays lack of expedition. There is no explanation at all about what the applicant was doing between 2nd December and 30th December, 2010 when an undisclosed informer gave out the information about the decision of the court. The applicant had a duty to pursue his advocates to find out the position on the litigation but there is no disclosure that the applicant bothered to follow up the matter with his erstwhile advocates. It is not enough simply to accuse the advocate of failure to inform as if there is no duty on the client to pursue his matter. If the advocate was simply guilty of inaction, that is not an excusable mistake which the court may consider with some sympathy. The client has a remedy against such an advocate. It would also appear that there was unnecessary and unexplained delay after 30th December, 2010 and the filing of the motion on 2nd February, 2011. Without explanation, there would be no basis for the exercise of any discretion. The filing of a notice of appeal is a simple and mechanical task and could even have been done on 30th December, 2010 or soon after the applicant became aware of the judgment. Such conduct militates against the overriding objective and the principles stated above.”** 1. It was submitted that the application gravely prejudices the Respondents and fundamentally offends the settled principle that litigation must come to an end. That the discretion to extend time is equitable and must be exercised judiciously and in a manner that upholds fairness to both parties. 2. With regard to costs, reference was made to **Section 27** of the **Civil Procedure** **Act** for the submission that costs follow the event. Reliance was placed on **Rai & 3 others -vs- Rai & 4 others (Petition 4 of 2012) [2014] KESC 31 (KLR) (4 March 2014) (Ruling)** where the Supreme Court stated; **“The basic principle on attribution of costs that costs follow the event was a well-recognized principle but could not be used to penalize the losing party rather it was for compensating the successful party for trouble taken in prosecuting or defending the suit. The object of ordering a party to pay costs was to reimburse the successful party for amounts expended on the case. It must not be made merely as a penal measure. Costs were a means by which a successful litigant was recouped for expenses to which he had been put in fighting an action.”** 1. Having looked at the application, response and submissions, the only issue for determination is whether the application is merited. 2. Section **79G** of the **Civil Procedure Act** provides that: **“Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order:** **Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”** 1. It is now well settled that the extension of time or its denial is an exercise of discretion by the court and the factors to consider are as indicated by the Court of Appeal in the case **Leo Sila Mutiso -vs- Rose Hellen Wangari Mwangi [1999] 2 EA 231** as follows; **“It is now well settled that the decision whether or not to extend time for appealing is essentially discretionary. It is also well settled that in general the matters which this Court takes into account in deciding whether to grant an extension of time are, first, the length of the delay, secondly, the reason for the delay, thirdly, possibly, the chances of the appeal succeeding if the application is granted, and fourthly, the degree of prejudice to the respondent if the application is granted.”** 1. The impugned judgment was delivered on 14/05/2025 and this application was filed on 05/09/2025, approximately 114 days later. The law requires appeals from Subordinate Courts to the High Court to be filed within 30 days from the date of the decree or order appealed against. After lapse of the statutory period, the delay in this matter is 84 days. 2. Before delving into whether the delay has been satisfactorily explained, it is not in dispute that the decretal sum had been paid in full at the time of filing the application herein. The correspondence marked DKO 3 shows that the decretal sum was paid on 19/02/2026. Prior to the said payment, the bundle of correspondences marked DKO 2 shows that the Applicants’ counsel pursued the payment actively and aggressively. 3. I have looked at all the eight letters from the Applicants’ Advocates in pursuit of payment and none of them gave an indication of filing an appeal. I am inclined to agree with the Respondents that the Applicants cannot be allowed to approbate and reprobate. The numerous cases cited by the Respondents are a clear indication of the position taken by courts in our jurisdiction. Consequently, it is trite that once a party accepts full payment of the decretal sum as a final and full payment, then he cannot be heard to aver that he is not satisfied with the judgment of the trial court yet he has fully enjoyed the fruits of the impugned judgment. Further, entertaining such conduct is highly prejudicial to a defendant who has legitimate expectation that litigation will come to an end once the full payment is made. 4. With regard to the explanation given for the delay, the first demand letter by the Applicants’ Advocates went out on 23/06/2025 which was slightly beyond the statutory period of appeal but the Applicants’ Advocates waited until September 2025 to file the application. Having looked at all the demand letters, the particular one dated 13/02/2026, it is telling of the conduct of the Applicants and their Advocates. Paragraph 2 therein states; **‘Do note that we are under a lot of pressure from clients.’** This paragraph alone rebuts the entire narrative by the Applicants that they were only informed about the judgment in August 2025. If the Applicants were pressurizing their counsel to secure the decretal sum in February 2026, it means that they were already aware that judgment had been delivered. It also means that all the demand letters were written with the full knowledge of the Applicants. 5. Further, the defence of ‘mistake of counsel’ is not available to the Applicants as they were aware of the judgment all along but chose to be indolent. In any case, it is now settled that parties have a duty to follow up on their cases. In my view, the attempt to pursue an appeal close to one year after delivery of judgment and three months after full payment is unfortunates and tantamount to greed. The reason given for the delay is not candid hence this court should resist the invitation to exercise discretion in the Applicants’ favour. 6. In conclusion therefore, it is my finding that the Application has no merit and is hereby dismissed with costs. Dated, signed and delivered virtually this **30th** day of **June 2026** ………………............…… J.N.ONYIEGO **JUDGE**