Adan v Farah & 3 others (Civil Appeal 266 of 2016) [2018] KECA 662 (KLR)

Section 734(2) of the Insolvency Act preserves the repealed Act only for past events and proceedings relating to them. 'Past event' is exhaustively defined in section 734(1) as matters occurring before commencement, such as the making of an application for a winding up order. Since the petition was filed on 9th March 2016, long after the Insolvency Act commenced on 18th January 2016, the filing could not be a past event. Had the petition been filed before commencement, it would have been properly before the court notwithstanding the intervening repeal.

Applying Mbogo v Shah and Co-operative Merchant Bank Ltd v Wekesa, an appellate court interferes with discretion only where the judge misdirected himself, acted on wrong matters, or plainly went wrong. The judge correctly found the petition grounded on a repealed statute, and the procedural rules under the new regime were not in place. The appellant retains the remedy of filing an appropriate petition under the correct law.

The appellant contended that because the Insolvency Act 2015 was operationalised on 18th January 2016 and catered only for companies incorporated under the Companies Act 2015, no statute governed his petition. The Court held that interpretation of sections 734(1) and (2) of the Insolvency Act presented no constructional difficulties: the transitional clauses in both statutes applied only to past events, which the petition was not. The recommended gap-filling is for Parliament, as the High Court suggested, not for the courts to save an incompetent petition.