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Court of AppealDismissedNot stated in judgment

Dr. Sunny Samuel v Simon M. Mbwika & another [1998] KECA 224 (KLR)

Court of Appeal of Kenya
16 December 1998
ALA.A. Lakha
394 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that if you accept full payment of a judgment, you lose the right to appeal against it.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal (Lakha JA) delivered at Nairobi on 16 December 1998 on an application for extension of time under rule 4 of the Court of Appeal Rules. The respondents, opposing the application, stated from the Bar without objection that since judgment and decree the applicant had accepted and received full payment of the sum due without any reservation, and argued that a party cannot appeal against a judgment whose benefits he continues to enjoy, as he would be approbating and reprobating it simultaneously. Counsel for the applicant conceded receipt of the decretal amount but contended the respondents had merely complied with the decree in the absence of any stay order. The court, giving the point anxious consideration, held that in the circumstances the applicant was precluded from attacking the judgment and was no longer an aggrieved person, nor could he be allowed to approbate and reprobate the judgment at the same time. The court followed the decision of the Court of Appeal for East Africa in Industrial and Commercial Development Corporation v Kariuki Gatheca (1977) KLR 52, where Mustafa JA, with Law V-P and Musoke JA concurring, held that an applicant who had affirmed and enjoyed the full benefit of a judgment was precluded from attacking it. Since that conclusion disposed of the matter, the court found it unnecessary to deal with the other points raised, held that no case for extension had been made out, and dismissed the application with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether an applicant who has received full payment of the decretal amount and enjoyed the benefit of the judgment can still be granted an extension of time to appeal against that judgment
  2. 2.Whether the doctrine of approbate and reprobate precludes the applicant from attacking the judgment

Key legal issues

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01

Whether receipt of full payment under a decree bars an application for extension of time to appeal

Holding

Yes - acceptance of the full benefit of the judgment without reservation renders the applicant non-aggrieved and precludes the appeal

Reasoning

The respondents paid the decretal amount in compliance with the decree absent any stay order. The applicant conceded receipt of full payment. The court held that having affirmed and enjoyed the judgment's benefit, the applicant could not simultaneously attack it, as that would be approbating and reprobating the same judgment. Following ICDC v Kariuki Gatheca, the application for extension of time could not stand.

p. 2

Legal principles established

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  • A party who has accepted and enjoyed the full benefit of a judgment without reservation is precluded from attacking that judgment on appeal, being no longer an aggrieved person
  • A litigant cannot approbate and reprobate the same judgment - enjoying its benefits while simultaneously seeking to appeal against it

Court orders

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  1. 1.The application for extension of time is dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AL
majority

Wrote the judgment

Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (extension of time)

Relief refused

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Extension of time to appeal

Having accepted and enjoyed the full benefit of the judgment, the applicant is precluded from attacking it and is no longer an aggrieved person

p. 1

Costs

The application fails and is dismissed with costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In my judgment, in the circumstances now obtaining, the applicant is precluded from attacking the judgment. He is no longer an aggrieved person.
p. 1Loss of aggrieved status
Nor can he be allowed to approbate and reprobate the judgment at the same time.
p. 1Approbate and reprobate doctrine
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.
p. 2Final orders - dismissal of extension application

Issues in the judgment

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minor

The judgment does not state the case number, the parties' names, or the decision appealed from; the copy is a certified extract dealing only with the extension-of-time application

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Dr. Sunny Samuel v Simon M. Mbwika & another [1998] KECA 224 (KLR)", Case Analysis (1998). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/224/eng@1998-12-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.