Invesco Assurance Company Limited v Mulwa & 59 others & another
The bottom line
#Kenya's Court of Appeal refused to excuse an insurer's unexplained delay in serving its appeal notice, so the accident victims' insolvency case against it proceeds.
What this practically means
#Executive summary
#Key legal issues
#Discretion to extend time under rule 4 of the Court of Appeal Rules
The discretion must be exercised judicially, applying the Salat principles; an applicant who fails to explain the delay in service and to demonstrate an arguable appeal does not deserve the indulgence
The court applied the Supreme Court's Salat principles. Although technological difficulties explained the delay in filing, no reason was given for the 19-day delay in physical service after the email bounced. The applicant also filed no draft memorandum of appeal or grounds, failing to demonstrate good faith or an appeal capable of succeeding.
Service of notice of appeal under rule 77
Rule 77 requires service of copies of the notice of appeal as filed, before or within 7 days after lodging; the court rejected the submission that service could occur before filing
The court held that the reference to 'copies' in rule 77 can only mean copies of the original notice which has been filed, hence the phrase 'before or within 7 days after lodging notice of appeal'. The applicant's unexplained 19-day delay in effecting physical service after the bounced email was fatal.
Prejudice and public interest
The respondents, accident victims with unpaid decrees, would be prejudiced by delay, while the applicant would suffer none since the substantive petition remains pending in the High Court
The court weighed prejudice: the 1st respondents are road traffic accident victims with decrees of over Kshs 53 million unpaid, and the applicant's liquidity is a matter of general public importance. Dismissal of the motion merely paves way for the substantive hearing of the pending petition, with appeal rights preserved against any ensuing judgment.
Legal principles established
#- Extension of time is an equitable remedy available only to a deserving party at the court's discretion, and the applicant bears the burden of explaining the delay to the court's satisfaction
Court orders
#- 1.The applicant's notice of motion dated 17th July 2020 is dismissed with costs
- On appeal from
- High Court at Nairobi
- High Court Insolvency Petition No. E008 of 2019
- Jurisdiction invoked
- Rule 4 of the Court of Appeal Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Invesco Assurance Company Limited v Mulwa & 59 others & another", Case Analysis (2022). Civil Application E215 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1290/eng@2022-11-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.