Co-Operative Bank of Kenya Ltd vs Invesco Assurance Co. Ltd (consolidated review applications)
The bottom line
#Kenya's High Court dismissed Co-operative Bank's attempt to revive a stay against Invesco Assurance, confirming insolvency stay applications must be filed in the insolvency cause itself.
What this practically means
#Executive summary
#Key legal issues
#Whether the ruling of 9th December 2021 contained an error apparent on the face of the record regarding section 428 of the Insolvency Act
No error apparent; the previous Judge had correctly construed s.428 and the application had been filed in the wrong cause.
The court re-read Dulu J's ruling and confirmed he had s.428 in sight, interpreting it to require the stay application to be made in the insolvency cause. The liquidation order exhibit confirmed the insolvency cause was Insolvency Petition No. E155 of 2019. The applicant instead brought the application in these files, which was the wrong forum. No basis for review was shown.
Whether the liquidation order of February 2023 constitutes new and important matter justifying review
No - it only amplifies the earlier interpretation of s.428 and confirms there is no error on the face of the record.
The court found the 'new evidence' (PNM 1, the liquidation order and directives) merely confirmed the court's prior interpretation of section 428 and did not disclose new matter or an apparent error. The correct remedy against a ruling said to be bad law is appeal, not review.
Legal principles established
#- An application under section 428 of the Insolvency Act for stay or restraint of proceedings must be made in the insolvency cause, not in the other proceedings.
- A contention that a ruling sets out bad law is a matter for appeal, not review.
- New evidence that merely amplifies the court's interpretation of a statute does not establish an error on the face of the record for review.
Court orders
#- 1.The application for review is dismissed
- 2.Costs to the (1st) respondent
- 3.The order applies to the other applications cited (HCCA 31 of 2021 and HCCA 32 of 2021)
- Jurisdiction invoked
- Sections 3A & 80 of the Civil Procedure Act and Orders 45 & 51 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Co-Operative Bank of Kenya Ltd vs Invesco Assurance Co. Ltd (consolidated review applications)", Case Analysis (2024). HCCA 30 of 2021 (with HCCA 31 of 2021 and HCCA 32 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.