Automated Summary
Key Facts
The applicant, Dr. Sunny Samuel, sought leave to file an appeal out of time after a 1997 High Court judgment in favor of the respondents. The Court of Appeal dismissed the application, ruling that the applicant had accepted full payment of the decretal amount without reservation, thereby affirming the judgment and losing standing to appeal. This conclusion was supported by a 1977 case (Industrial and Commercial Development Corporation vs. Kariuki Gatheca) where similar circumstances precluded an appeal.
Issues
- Whether the applicant is precluded from appealing after accepting full payment of the decretal amount, thereby no longer being an aggrieved party and unable to approbate and reprobate the judgment simultaneously
- Application for leave to file and serve a Record of Appeal out of time under rule 4 of the Court of Appeal Rules, which was dismissed as the case for extension was not made out due to the applicant's acceptance of full payment
Holdings
The Court of Appeal dismissed the applicant's application for leave to file an appeal out of time, ruling that the applicant had accepted full payment under the decree and is therefore precluded from challenging the judgment. The court held that one cannot both benefit from a judgment and later appeal it, citing the case of Industrial and Commercial Development Corporation v. Kariuki Gatheca (1977).
Remedies
The application for leave to file and serve a Record of Appeal out of time was dismissed with costs by the Court of Appeal in Nairobi on 16th December 1998. The court ruled that the applicant was precluded from appealing due to having accepted full payment of the decretal amount and thus no longer being an aggrieved party.
Legal Principles
The court applied the principle that a party cannot 'approbate and reprobate' the same judgment by accepting its benefits while simultaneously challenging it. The applicant was deemed precluded from appealing after receiving full payment under the decree without reservation, as this affirmed the judgment's validity.
Precedent Name
INDUSTRIAL AND COMMERCIAL DEVELOPMENT CORPORATION VS. KARIUKI GATHECA
Cited Statute
Rules of the Court of Appeal
Judge Name
A.A. LAKHA
Passage Text
- 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 of INDUSTRIAL AND COMMERCIAL DEVELOPMENT CORPORATION VS. KARIUKI GATHECA 1977 KLR 52 was inclined to the view that the applicant had in effect affirmed and approbated the judgment...
- 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.