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Court of AppealDismissedCivil Appeal No. 18 of 2001 (application under rule 104(3))· [2001] KECA 128 (KLR)

Ignazio Messina and C.s.p.a. v Stallion Insurance Company Ltd

Court of Appeal
15 August 2001
857 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to force an insurer under statutory management to pay security for costs, confirming statutory management is not liquidation.

What this practically means

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Executive summary

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Ignazio Messina and CSPA, the appellant in Civil Appeal No. 18 of 2001, applied under rule 104(3) of the Court of Appeal Rules for orders that the respondent, Stallion Insurance Company Limited, provide security for the costs of the appeal and for costs already awarded in HCCC No. 216 of 2000, and that the hearing of the appeal be stayed pending provision of that security. The underlying dispute concerned a claim of Shs 45,561,095.20 under a guarantee; the respondent had obtained default judgment, its application to set that aside was dismissed by Commissioner of Assize Ransley on 16th May 2001, and it had appealed. Stay of execution had been granted in the superior court on terms, with insurance bonds of Shs 22,000,000 issued by five insurance companies, which the Commissioner found adequate. The applicant relied on the respondent's placement under statutory management by the Commissioner of Insurance under section 67C of the Insurance Act, arguing the respondent had ceased trading and might be unable to pay costs. Kwach JA held that statutory management is a temporary measure of up to twelve months during which a manager reports on whether the insurer can be revived or should be liquidated; it is not liquidation, and uncertainty about the outcome is not a sufficient basis for security for costs. The existing bonds also made the applicant's apprehension misplaced, and it would be unjust to burden the respondent so as to impede its appeal. The application was dismissed with costs on 15th August 2001.

Key legal issues

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01

Whether placement of the respondent insurer under statutory management justified an order for security for costs

Holding

No. Statutory management under section 67C of the Insurance Act is a temporary measure of up to twelve months, extendable only by the High Court, during which the manager reports on whether the insurer can be revived or should be liquidated; it does not amount to liquidation.

Reasoning

The court examined the statutory scheme and held that the manager must report on the insurer's financial position and recommend revival or liquidation. Until that report, no one can say with certainty whether the insurer will be revived or liquidated, so mere cessation of trading during statutory management is not a good enough reason to order security for costs.

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02

Whether the adequacy of security already provided for stay of execution in the superior court bore on the application

Holding

Yes. The respondent had provided insurance bonds of Shs 22,000,000 from five insurance companies, which the Commissioner of Assize found adequate (approximately half the decretal amount), rendering the applicant's apprehension misplaced.

Reasoning

The court noted that stay of execution had been granted on terms and bonds issued by Intra Africa, Concord, Lakestar, Inveco and Gateway Insurance Co Ltd. Since the Commissioner had already found this security sufficient, the applicant's fear that the respondent could not satisfy the decree and costs was misplaced and could not justify further security.

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Legal principles established

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  • Statutory management of an insurer under section 67C of the Insurance Act is not liquidation, and uncertainty about an insurer's fate during statutory management is not a sufficient ground to order security for costs against it
  • A court will not order security for costs where its effect would be to make it difficult or impossible for a party to prosecute its appeal

Court orders

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  1. 1.Application for security for costs dismissed with costs
On appeal from
High Court (Commissioner of Assize)
HCCC No. 216 of 2000
Jurisdiction invoked
Rule 104(3) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ignazio Messina and C.s.p.a. v Stallion Insurance Company Ltd", Case Analysis (2001). Civil Appeal No. 18 of 2001 (application under rule 104(3)). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/128/eng@2001-08-15

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