[2018] KEHC 2885 (KLR)
The court found that Jane Kabura had demonstrated insolvency by showing her liabilities far exceeded her assets and that she was unable to pay her debts. The statutory requirements for advertising the petition were met, and no creditors objected. There was no evidence of a prior bankruptcy order or arrangement with...
Source-derived case information.
- Citation
- [2018] KEHC 2885 (KLR)
- Parties
- Petitioner: Jane Kabura
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Insolvency Cause 2 of 2018
- Procedural Posture
- Insolvency Cause / Ruling
- Outcome
- bankruptcy order granted
- Judges
- F Tuiyott
- Legal Topics
- Personal Bankruptcy, Insolvency Proceedings, Debtor Initiated Petition
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jane Kabura
Petitioner
Procedural Posture
Insolvency Cause / Ruling
Legal Issues
- 1 Whether the petitioner is insolvent and entitled to a bankruptcy order under the Insolvency Act.
- 2 Whether the statutory requirements for advertising the bankruptcy petition were met.
- 3 Whether there is any legal impediment to granting the bankruptcy order.
Ratio Decidendi
The court found that Jane Kabura had demonstrated insolvency by showing her liabilities far exceeded her assets and that she was unable to pay her debts. The statutory requirements for advertising the petition were met, and no creditors objected. There was no evidence of a prior bankruptcy order or arrangement with creditors within the preceding five years. The court was satisfied that the petitioner met all legal requirements for a bankruptcy order under the Insolvency Act and therefore granted the order, appointing the Official Receiver as trustee of the debtor's property.
Court Disposition
bankruptcy order granted
Orders
- A bankruptcy order is made in respect to the estate of Jane Kabura.
- The Official Receiver (or a person nominated by the Official Receiver) is appointed as the Bankruptcy Trustee in respect of the debtor's property.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL & TAX DIVISION
INSOLVENCY CAUSE NO. 2 OF 2018
RE: JANE KABURA - PETITIONER
RULING
1. Jane Kabura (the Petitioner) moves this Court for a Bankruptcy Order. She alleges to be insolvent.
2. In an affidavit sworn on 1st March 2017 made in support of the Petition, Kabura reveals that she has been a Shop owner at Uthiru which is along Waiyaki way. She was evicted from the Shop by her Landlord. She thinks that the eviction was unlawful. But that is for another day.
3. It is her allegation that in the course of the eviction, she lost goods worth Khs.1,700,000/= and cash of Khs.40,000/=. She was not only distraught but left financially destitute. Her Creditors have come calling in but she has no money to pay the Debts.
4. Annexed to the Affidavit is her Statement of Affairs. She holds Assets of Khs.2,600/= against Liabilities of Khs.820,000/=. The Creditors are listed and their Credits are set out. The Statement is a portrait of an Insolvent individual.
5. As required by Law the Bankruptcy proceedings were advertised in the Daily Nation of 17th April 2018. The Notice was in the page that carries classified Advertisements. Advertisement is on small size. While I would say no more on it, I would think that in future there should be clear directions as to the size of the Advertisement. Surely, it must be prominent enough to catch the attention of interested Parties (who would include Creditors).
6. Anyhow, no Creditor came forward and on the hearing day of 12th October 2018, only Kabura was in Court. She sought the Orders in the Petition.
7. A Debtor, like Kabura, is entitled to apply to be adjudged bankrupt on the grounds that the Debtor is unable to pay his or her Debts (Section 32(1) of The Insolvency Act). Kabura has filed a Statement of her financial position. I have no reason to disbelieve it. She seems unable to pay her debts and is deserving of the Orders sought.
8. There is no evidence that in 5 years immediately preceding this Application Kabura has been adjudged bankrupt or made a composition with her Creditors or entered into a scheme of arrangement (see Section 33 of The Insolvency Act).
9. I see no reason to decline the Petition. I do hereby make a Bankruptcy Order in respect to the Estate of Jane Kabura. The Official Receiver (or a person nominated by the Official Receiver) is hereby appointed to be the Bankruptcy Trustee in respect of the Debtors Property.
10. Those are my Orders.
Dated, delivered and signed in open Court at Nairobi this 19th day of October 2018.
F. TUIYOTT
JUDGE
Present:-
Jane Kabura - Petitioner
Nixon-Court Assistant