[2025] KEHC 5874 (KLR)

In re Leonard Kipkoech Terer (Insolvency Cause E001 of 2025) [2025] KEHC 5874 (KLR) (8 May 2025) (Ruling)

Neutral citation: [2025] KEHC 5874 (KLR)

Republic of Kenya

In the High Court at Kericho

Insolvency Cause E001 of 2025

JK Sergon, J

May 8, 2025

(IN THE MATTER OF SECTION 32 AND 33 OF THE INSOLVENCY ACT 2015 AND RULE 18 OF THE INSOLVENCY REGULATIONS 2016)

In the matter of

Leonard Kikoech Terer

Debtor

Ruling

1. The debtor domiciled in Kericho County has moved this court vide a document unknown in law seeking to be adjudged bankrupt and a bankruptcy order in respect of his estate. The applicant filed a statement of affairs alongside the said document.

2. The above notwithstanding this court cannot give the orders sought as the debtors petition is non-compliant with the relevant provisions of law to wit the Insolvency Act CAP 53 Laws of Kenya and the Insolvency Rules.

3. Section 13 of the Insolvency Act provinces that; “Bankruptcy occurs when the Court makes an order in respect of a debtor adjudging the debtor bankrupt — (a) on the application of one or more creditors of the debtor made in accordance with section 17; or (b) on the application of the debtor made in accordance with section 32. ” Section 32 of the Insolvency Act provides that;“(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.”

3. Whereas Regulation 18 of the Insolvency Rules provides as follows;(1)An application for a bankruptcy order by the debtor shall be made by way of a bankruptcy petition and shall be in Form 10 set out in the First Schedule.(2)The petition shall be accompanied by the following documents —(a)an affidavit to the petition which shall be in Form 8 set out in the First Schedule;(b)statement of debtors financial position, which shall be called a “statement of affairs”, and shall be in Form 11 set out in the First Schedule; and © application for appointment of trustee which shall be in Form 9 of the First Schedule.

4. This Court has considered the application and is of the considered view that whereas it is undoubtedly, the imperative duty of the court to make a receiving order where the petition is a proper petition, the instant application by the debtor guised as a petition is defective in form and non-compliant with the procedure set out in the Insolvency Act and Rules and therefore undeserving of the orders sought.

5. Section 16 (2) of the Insolvency Act provides as follows; “the Court has a general power to dismiss a bankruptcy application or to stay proceedings on such an application on the ground that the Court is of the opinion that a requirement of this Part or the insolvency regulations has not been complied with in a material respect.”

6. Consequently, the instant application for bankruptcy order is hereby dismissed for material non-compliance with the Insolvency Act and Rules.

DATED, SIGNED AND DELIVERED AT KERICHO THIS 8TH DAY OF MAY, 2025. ................................J.K. SERGONJUDGEIn the presence of:C/Assistant - RutohNo Appearance