[2014] KEHC 1465 (KLR)
The court held that section 228 of the Companies Act is mandatory and requires a company in liquidation to obtain leave before instituting proceedings. Given the applicant's status as a company in liquidation and the absence of substantive opposition, the court found it appropriate to grant leave to commence...
Source-derived case information.
- Citation
- [2014] KEHC 1465 (KLR)
- Parties
- Applicant: Coates Brothers (EA.) Limited; Respondent: Continental Adjusters (K) Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 480 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Commence Proceedings by Company in Liquidation
- Outcome
- leave granted
- Judges
- F Gikonyo
- Legal Topics
- Company Liquidation, Leave to Sue, Winding Up Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Coates Brothers (EA.) Limited
Applicant
Continental Adjusters (K) Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Commence Proceedings by Company in Liquidation
Legal Issues
- 1 Whether leave should be granted to a company in liquidation to commence proceedings against the respondent under section 228 of the Companies Act.
Ratio Decidendi
The court held that section 228 of the Companies Act is mandatory and requires a company in liquidation to obtain leave before instituting proceedings. Given the applicant's status as a company in liquidation and the absence of substantive opposition, the court found it appropriate to grant leave to commence proceedings against the respondent within 30 days. The decision ensures compliance with statutory requirements and protects the interests of the company and its creditors during liquidation.
Court Disposition
leave granted
Orders
- Leave is granted to the applicant to commence judicial proceedings against the respondent within 30 days of the ruling.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL & ADMIRALTY DIVISION
MISCELLANEOUS CIVIL APPLICATION NO 480 OF 2014
COATES BROTHERS (EA.) LIMITED............................................PLAINTIFF
Versus
CONTINENTAL ADJUSTERS (K) LIMITED...............................DEFENDANT
RULING
Leave to file proceedings: Company in liquidation
[1] If the Applicant succeeds in the application dated 1st October, 2014, it will be the Plaintiff in the intended suit against the Respondent. The court made a winding up order against the Applicant was made on 11th April, 2012 and Mr Patrick Kamau of Ernest Young Eastern Africa was appointed the liquidator of the company. The Applicant intends to file suit against the Respondent for recovery of a debt owed to the company. It has applied for leave to commence proceedings under section 228 of the Companies Act.
[2] I have considered the submissions filed, the judicial decisions cited as well as the law. Section 228 is in mandatory terms and given the status of the Applicant Company, I hereby grant leave to commence judicial proceedings against the Respondent within 30 days of today. It is so ordered.
Dated, signed and delivered in court at Nairobi this 28th day of November 2014
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F. GIKONYO
JUDGE