[2016] KEHC 7920 (KLR)
The court found that Athi Valley Limited had passed a special resolution for its winding up and that there were no prospects for further business. The petition was properly supported by the required documents and was not opposed by any party. The court held that, under Section 219(a) of the repealed Companies Act,...
Source-derived case information.
- Citation
- [2016] KEHC 7920 (KLR)
- Parties
- Applicant: Abdulghani Mohamed Mohamed Al-Wohih; Respondent: Athi Valley Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Winding Up Cause 13 of 2014
- Procedural Posture
- Winding Up Cause / Judgment
- Outcome
- Petition for winding up allowed; company ordered wound up; Official Receiver appointed as liquidator; final report to be filed within six months; costs to be paid by the company.
- Judges
- OA Sewe
- Legal Topics
- Company Winding Up, Voluntary Liquidation, Special Resolution, Corporate Dissolution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Abdulghani Mohamed Mohamed Al-Wohih
Applicant
Athi Valley Limited
Respondent
Procedural Posture
Winding Up Cause / Judgment
Legal Issues
- 1 Whether Athi Valley Limited should be wound up by order of the court pursuant to a special resolution of its shareholders.
- 2 Whether the Official Receiver should be appointed as liquidator for the winding up of the company.
- 3 Whether the petition complies with the procedural requirements for winding up under the repealed Companies Act.
Ratio Decidendi
The court found that Athi Valley Limited had passed a special resolution for its winding up and that there were no prospects for further business. The petition was properly supported by the required documents and was not opposed by any party. The court held that, under Section 219(a) of the repealed Companies Act, it had jurisdiction to order the winding up of the company. The court further appointed the Official Receiver as liquidator pursuant to Section 230 of the repealed Act and directed that a final report be submitted within six months. The costs of the petition were ordered to be paid by the company.
Court Disposition
Petition for winding up allowed; company ordered wound up; Official Receiver appointed as liquidator; final report to be filed within six months; costs to be paid by the company.
Orders
- A winding up order is issued for Athi Valley Limited by the court in accordance with Section 219(a) of the Companies Act, Chapter 486 (repealed).
- The Official Receiver is appointed as the liquidator pursuant to Section 230 of the Companies Act, Chapter 486 (repealed).
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
COMMERCIAL & ADMIRALTY DIVISION
HIGH COURT WINDING UP CAUSE NO. 13 OF 2014
IN THE MATTER OF ATHI VALLEY LIMITED
AND
IN THE MATTER OF THE COMPANIES ACT
CHAPTER 486 OF THE LAWS OF KENYA
JUDGMENT
[1]The Petition herein, for the winding up of Athi Valley Limited, was filed on 1 September 2014 by one of its Directors, Abdulghani Mohamed Mohamed Al-Wohih on the grounds that:
[a] there are no prospects of any further business in the foreseeable future for the continued existence of the company, and
[b] that the company's shareholders passed a Special Resolution that the company be dissolved.
[2]The Petition is supported by the Verifying Affidavit of Abulghani Mohamed Mohamed Al-Wojih to which he annexed the following documents:
[a] The company's Certificate of Incorporation marked 'AMMA1';
[b] The resolution of the Company for the voluntary winding up of the Company marked 'AMMA2';
[c] The Company's Memorandum and Articles of Association marked 'AMMA3';
[d] An official search (Form CR12) from the Registrar of Companies showing the Directors and Shareholders of the Company as at 20 June 2014 marked 'AMMA4'.
[3] The brief background of the matter is that Athi Valley Limited [hereinafter "the Company"] was incorporated on 8 June 2004 with a nominal capital of Kshs. 100,000, divided into 1000 ordinary shares of Kshs. 1,000 each. As at 1 September 2014 when the Petition was filed the shareholders were Golden Africa Kenya Limited with 999 shares and Marwan Ahmed Hael Saeed holding 1 share. The objects for which the Company was established included the purchase, acquisition, construction, sale or lease of real estate; and by his affidavit filed in verification of the Petition, Abdulghani Mohamed Mohamed Al-Wojih deponed that it was by a Special Resolution of the Directors of the Company that a decision was taken to have it wound up as there was no business or business prospects to justify its continued existence. A copy of the resolution dated 3 June 2014was annexed to the Verifying Affidavit as Annexure 2.
[4] The Petition was duly advertised both in the Kenya Gazette of 21 November 2014 vide Gazette Notice No. 8484 and in one of the Daily Newspapers. Thus far, there has been no Notice of Intention to Appear or any Replying Affidavit in resistance of the Petition.
[5] It is noteworthy that this Petition was filed prior to the coming into force of the Companies Act, No. of 2015, and hence is governed by the repealed Companies Act, Chapter 486 of the Laws of Kenya by dint of Section 734(2) of the Insolvency Act, 2015 and Section 219(a) of the repealed Companies Act, provided that:
"A company may be wound up by the court if the company has by special resolution resolved that the company be wound up by the court..."
Accordingly, I would grant the Petition and make orders in respect thereof as hereunder:
(a) That the Company be wound up and that a Winding up Order do issue for the winding up of Athi Valley Limited by the court in accordance with Section 219(a) of the Companies Act, Chapter 486 of the Laws of Kenya (now repealed);
(b) That the Official Receiver be and is hereby appointed as the Liquidator herein pursuant to Section 230 of the Companies Act, Chapter 486 of the Laws of Kenya (now repealed) for the purposes of the winding up of the company;
(c) That a Final Report on the winding up be submitted to the Court in a period of six months, and that the matter be mentioned for that purpose on 25 January 2017;
(d) The costs of the Petition be paid by the Company.
Orders Accordingly.
SIGNED, DATED AND DELIVERED AT NAIROBI THIS 27th DAY OF JULY 2016
OLGA SEWE
JUDGE