https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7865

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT ELDORET** **INSOVENCY CAUSE NO. E005 OF 2025** **IN THE MATTER OF SARAH WANJIRU KARISHO** **AND** **IN THE MATTER OF INSOLVENCY ACT CAP 53 LAWS OF KENYA** **JUDGMENT** 1. The Petitioner**, Sarah Wanjiru Karisho,** has brought the Petition dated 9th June 2025 for an order that a bankruptcy order be made in respect of her estate and that she be adjudged bankrupt. Annexed to the Petition is her Statement of Affairs (Individual Person) reflecting assets worth Kshs. 54,000/= and liabilities to the tune of Kshs. 1,615,095/=. 2. The Petition is supported by the Affidavit sworn by the Petitioner on 9th June 2025. In the Affidavit the Petitioner deposed that on or about the 21st may 2018, she was sued by the Decree Holder in **Eldoret CMCC No.661 of 2018; Moiben Connections Limited vs. Sarah Wanjiru Karisho,** that the aforesaid suit proceeded to hearing and the trial Court determined the same when it delivered its judgment on 21st May 2021 in favor of the Decree Holder against her and subsequently on 20th December 2021, a decree was issued against her for the total amount of Kshs. 1,615,095/=. 3. The Petitioner further deposed that the decree holder proceeded to obtain a Notice to Show Cause why execution should not issue against her on 8th May 2025 and the trial Court issued warrants of arrest against her and that she was arrested and consequently committed to civil jail on the 22nd May 2025 for defaulting to satisfy the decretal sums. 4. The Petitioner maintained that she is a widow and an unemployed single mother of four children and has no constant source of income and added that she solely relied upon the meager earnings she gets in doing menial jobs and therefore she is incapable of paying the said decretal sums when required. She further deposed that she is the sole breadwinner in her house and she currently has two children who are attending school and she is their only provider and that her continued incarceration will be detrimental to their basic needs which will be left unmet. The Petitioner therefore urged that she is unable to meet her obligations especially he payments due to her creditors and in the premises she should be adjudged bankrupt. **Supplementary Affidavit** 1. The Petitioner also filed a Supplementary Affidavit dated 30th September 2025 wherein save for stating that she had advertised the Petition in the Star Newspaper and had obtained a Certificate of Compliance from the Official Receiver she basically reiterated her averments made in the Affidavit in Support of the Petition.The Petition is unopposed and there is an Affidavit of Service on record sworn by **Edward Kibaba Muyala**, Advocate indicating that on 18th June 2025 he effected service upon Moiben Connections Limited. **Determination** 1. The above being the summary of the case for the Petitioner, the only issue for the determination of the court is **whether Petitioner has met the necessary conditions to warrant that she be adjudged bankrupt.** 2. The law governing insolvency is that to establish insolvency, a Petitioner seeking to be adjudged bankrupt must show that their liabilities do as a matter of fact exceed their assets and it is not enough to merely that they might do so. An applicant must make a prima facie case demonstrating clear proof of this. The Petition must be brought in utmost good faith and with scrupulous honesty and sincerity demonstrating an unambiguous evidence of true insolvency 3. *Courts have held time and again that* an allegation by a petitioner seeking to be adjudged bankrupt for reasons that he is unable to pay his debts is a fact to be proved by way of evidence. That it is not to be assumed that because the petitioner says that he is unable to pay debts the Court should believe his word. 4. A Petitioner who wants to be adjudged bankrupt must lay before Court concrete evidence to enable the Court make a determination based on that evidence that indeed the person is bankrupt. Further, the courts have been categorical that the court cannot not act as an aid instrument to allow a person run away from his financial obligation towards his creditors because once adjudged bankrupt, the debtor then is tossed beyond his creditors’ reach. 5. Indeed, in *re James Maina Kabatha (Debtor/Applican)* Insolvency Cause No. 4 of 2019 [2020] eKLR the court stated that ‘the twin goals of consumer or individual bankruptcy law are to protect creditors and ensure optimal payment to them where possible; and the provision of shelter and a "fresh start" to individual debtors overburdened by debt.’ 6. Further, *in re John Kamau Njau(Debtor)*[3](https://new.kenyalaw.org/akn/ke/judgment/kehc/2021/8/eng%402021-09-10#arguments__para_19__p_1__authorialNote_1) {2019} eKLR.which held that “insolvency law on individuals is intended to grant some respite to natural persons who are truly insolvent. Because the grant of the order insulates the Petitioner from the aggression of creditors through civil or other proceedings, a Petitioner who bespeaks an Insolvency (Bankruptcy) order must be candid and forthright as to his state of affairs. There must be a full and frank disclosure by the Petitioner.”3 7. Lastly, in *Stephen Nyaega Mose*[6](https://new.kenyalaw.org/akn/ke/judgment/kehc/2021/8/eng%402021-09-10#arguments__para_22__p_1__authorialNote_1) 6{2018} e KLR.in which the court cautioned against abuse of Bankruptcy laws and proceedings noting that Bankruptcy laws were never meant to protect people who are in debt because of their own act of fraud or professional misconduct; but are meant to protect genuine people who have unfortunately found themselves in debt out of innocent factors such as harsh business environment and unavoidable business calamites. 8. Coming to the applicable statutory provision which is **Section is 32 of the Bankruptcy Act, CAP 53 Laws of Kenya,** the conditions that a petitioner is required to adhere to are as hereunder reproduced; **When debtor may make application for bankruptcy order** **(1).A debtor may make an application to the Court for an order adjudging the debtor bankrupt only on the grounds that the debtor is unable to pay the debtor's debts.** **(2)The Court may decline to deal with such an application if it is not accompanied by a statement of the debtor's financial position containing—** **(a)such particulars of the debtor's creditors and of the debtor's debts and other liabilities and assets as may be prescribed by the insolvency regulations; and** **(b)such other information as may be so prescribed.** **(3).The Court may reject a statement of the debtor's financial position if of the opinion that it is incorrect or incomplete.** **(4).A debtor who makes an application under this section shall publish a notice of the application in—** **(a)a newspaper circulating within the region in which the debtor ordinarily resides; and** **(b)in such other publications (if any) as may prescribed by the insolvency regulations for purposes of this section.** **(5)The Court may decline to hear the application if subsection (4) has not been complied with to its satisfaction.** 1. Further to the above, Regulation18(3) details the information a Petitioner is required to include in the statement of his financial position so as to enable the creditors and the court to ascertain the bona fides of the Petition and to ensure that bankruptcy proceedings are not used by the Petitioner to evade paying his debts. 2. Additionally, **Regulation 18 (4)** requires the debtor to sign and date the statement of the said statement of his financial position and arrange for the publication of the statement in the Kenya Gazette and under Regulation 18(5) the debtor shall **be responsible for the costs of publishing the statement in the *Gazette*.** 3. With the above Statutory and Case law which I am fully guided by now in place, I shall now proceed to examine the petition before the court in a bid to satisfy myself that it does conform with all the necessary requirements. The first thing of note is that there is no explanation by the debtor on how she came into the debt of Ks. 1,615, 095/- for reasons that the circumstances under which the debt came about are nowhere enumerated in her Petition. 4. Whereas it is apparent that the amount arose out of a judgement and decree of the court, it is not indicated what type of litigation it was that led to the said judgement, whether it arose out of a road traffic accident, a loan advanced but not paid either in full or the balance thereof, goods sold but not paid for *et al*. Further to this, the court also notes that in her affidavit in support of the Application, at paragraph 2 thereof, she refers the court to documents which are supposed to be copies of the judgement and decree that are the subject matter of the debt accrued but none are thereto annexed. 5. For this reason, the court is not able to understand the circumstances under which the debt was accrued to enable it determine the bona fides of the information contained in the Statement of Affairs filed by the Petitioner and more particularly, the information contained in Part 3 paragraph I which essentially seeks information on the occupation of the Petitioner, and Part 5 paragraph a) and b) which seeks information on the reasons that occasioned the insolvency. 6. The court also notes that the judgement the subject matter of the decree for which a warrant of arrest was executed and the Petitioner incarcerated was delivered on 21st May 2021 and the Petitioner did nothing about it until she was arrested and incarcerated subsequent to a decree issued on 15th May 2025 which is actually four years after delivery of the judgement. That is when she moved the court by way of this Petition seeking to be adjudged bankrupt. 7. The delay in acting on the said judgement is clearly very inordinate. The court notes that the Petitioner did not appeal the said judgement. This coupled with the fact that the Petitioner has now moved the court by way of this Petition only when the Decree holder has moved to execute the judgement four years after it was delivered with no appeal preferred only goes to underscore the only reasonable conclusion that the court can infer form these circumstances which is that this Petition has not been made in good faith but has simply been brought to seek to avoid paying a legal and just debt owed by the Petitioner to the Respondent/Decree Holder in a bid to deny the Decree Holder the opportunity to enjoy the fruits of its judgement. 8. This in my very well considered opinion amounts to an abuse of the court process and it is the kind of scenario that courts, as can be demonstrated from the plethora of case law regarding the issue of insolvency, a few of which I have herein cited, have always frowned upon and urged that this kind of abuse of its process ought not to be allowed. This court too will not countenance this kind of blatant and open abuse of its process. 9. Further to the above, whereas the court notes that the Petitioner did place the Petition in the Star Newspaper, the fact that the same also ought to be published in the Kenya Gazette as provided under Regulation 18(5) is a mandatory requirement. It is therefore not enough to state that the Petitioner’s request to have the same published was denied for reasons that publication is only done for corporate bodies. If this were to be the case, there would have been no such requirement in the law. The court also notes that there is also nothing in writing to show that such an application was made to the Government Printer and the same was declined for the reasons given. 10. In conclusion, the upshot of my above findings is that the Petition lacks merit and the same is accordingly dismissed in its entirety with no order as to costs. **Read dated and Signed Virtually at BUNGOMA on 3rd June 2026** **E. OMINDE** **JUDGE**