Joseph Morara Omoke v Invesco Assurance Company Ltd [2018] KECA 532 (KLR)
The bottom line
#Kenya's Court of Appeal gave Invesco 45 days to file its delayed appeal or lose the stay of execution and forfeit the money held in reserve.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to vary or rescind the Court's own consent order
The Court has jurisdiction under Rule 57(2) of the Court of Appeal Rules notwithstanding that the wrong enabling provisions were cited, and the application was deemed properly filed under that Rule.
The applicant cited the wrong enabling provisions of the law in seeking variation or setting aside of the consent order. The Court held that this mis-citation did not deprive it of jurisdiction, invoking Rule 57(2) of the Court of Appeal Rules as the proper basis, and deemed the application properly filed under that Rule. This is a self-correcting approach to defective applications.
Imposition of a time frame for prosecution of the appeal
Where the respondent has not explained a delay of more than two years in filing an appeal, it is justified to impose a time limit within which the appeal must be filed.
The consent order had been recorded more than two years earlier, yet no appeal had been filed and no extension of time sought. Counsel for the respondent could only state that the appeal was being prepared. The Court found the delay unexplained and, balancing the interests of the judgment creditor, imposed a 45-day limit with the consequence that the stay would lapse and the security paid out on default.
Refusal of the alternative prayer for release of the decretal sum
It would be unjust to release the decretal sum where the consent order was granted by consent, contained no time limit, and the one-month delay in depositing the balance was reasonably explained.
The alternative prayer would have effectively terminated the appeal without it being heard. The Court reasoned that the consent order was consensual and silent on the time for filing the appeal; further, the Kshs.1,100,000 had been deposited in a joint account on about 3rd June, 2016, and the delay of about one month and one week was reasonably explained by affidavit. Hence only the main prayer was merited.
Legal principles established
#- Despite citation of the wrong enabling provisions, the Court of Appeal has jurisdiction under Rule 57(2) Court of Appeal Rules to vary or rescind its orders, and an application may be deemed properly filed under that Rule.
Court orders
#- 1.The respondent (Invesco) to file the intended appeal within 45 days from the date of the order, in furtherance of the consent order dated 25th April, 2016
- 2.In default, the order of stay of execution granted by the consent order shall lapse and the application dated 18th April, 2016 shall stand dismissed with costs
- 3.In the event the order lapses, the Kshs.1,100,000 deposited in the joint bank account shall be paid to the applicant together with the accrued interests
- Jurisdiction invoked
- Rule 57(2) Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Morara Omoke v Invesco Assurance Company Ltd [2018] KECA 532 (KLR)", Case Analysis (2018). Civil Application No. 31 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/532/eng@2018-06-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.