[2014] KEHC 8681 (KLR)
The court found that Elijah Kinyumu Mbuvi was unable to pay his debts, had no assets or property, and there was no evidence of fraudulent transfer or concealment of assets. The creditors were given ample opportunity to participate but failed to do so. The debtor, with the concurrence of the Official Receiver,...
Source-derived case information.
- Citation
- [2014] KEHC 8681 (KLR)
- Parties
- Debtor: Elijah Kinyumu Mbuvi; Creditor: KNUT, Machakos Branch; Creditor: NSSF; Respondent: Official Receiver
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Bankruptcy Cause 10 of 2010
- Procedural Posture
- Bankruptcy Cause / Adjudication of Bankruptcy
- Outcome
- Debtor adjudged bankrupt.
- Judges
- F Gikonyo
- Legal Topics
- Bankruptcy Petition, Adjudication of Bankruptcy, Creditor Rights
- 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
Elijah Kinyumu Mbuvi
Debtor
KNUT, Machakos Branch
Creditor
NSSF
Creditor
Official Receiver
Respondent
Procedural Posture
Bankruptcy Cause / Adjudication of Bankruptcy
Legal Issues
- 1 Whether the debtor is unable to pay his debts and should be adjudged bankrupt.
- 2 Whether the debtor has any assets or property available for creditors.
- 3 Whether there is evidence of fraudulent transfer of property by the debtor.
Ratio Decidendi
The court found that Elijah Kinyumu Mbuvi was unable to pay his debts, had no assets or property, and there was no evidence of fraudulent transfer or concealment of assets. The creditors were given ample opportunity to participate but failed to do so. The debtor, with the concurrence of the Official Receiver, consented to being adjudged bankrupt. The court, satisfied that the debtor's affairs had been sufficiently investigated and that statutory requirements were met, adjudged the debtor bankrupt under section 20 of the Bankruptcy Act. No order was made for property vesting as there was no evidence of assets. The court allowed liberty to apply for discharge or other relief within 12 months.
Court Disposition
Debtor adjudged bankrupt.
Orders
- Elijah Kinyumu Mbuvi is adjudged bankrupt pursuant to section 20 of the Bankruptcy Act.
- No order for property vesting as there is no evidence of assets or fraudulent transfer.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
COMMERCIAL AND ADMIRALTY DIVISION AT MILIMANI LAW COURTS
BANKRUPTCY CAUSE NO 10 OF 2010
RE:-
ELIJAH KINYUMU MBUVI..........................................................DEBTOR
ADJUDICATION OF BANKRUPTCY
Bankruptcy petition against self
[1] Mr Elijah Kinyumu Mbuvi filed this bankruptcy petition against himself for a declaration of his inability to pay his debts. The debtor was asked questions concerning his affairs and the causes of his failure to pay his debts by Mr Kamolo for KNUT, Machakos Branch. Mr Kiplangat for NSSF and the other creditors neither filed proof of debt as it had been ordered by the Court nor attended court for public examination of the Debtor on the appointed dates. The Debtor was also examined as to his conduct, dealings and property. And from the examination, it is clear the Debtor has no assets or properties and he is unable to pay his debts. He was not even able to make any proposal for a composition in satisfaction of the debts due to the creditors under the bankruptcy, or for a scheme of arrangement of the bankrupt’s affairs.
[2] The court gave the creditors sufficient time to attend court and examine the Debtor but to no avail. That notwithstanding, the Court is satisfied and is of opinion that the affairs of the debtor have been sufficiently investigated, and declare that his examination is concluded. When the matter came up for further public examination of the debtor on 4. 7.2014, the Official Receiver applied for the Debtor to be adjudged bankrupt as he had no property to repay his debts. The official receiver also informed the court that the Debtor is advanced in age and was ailing. The Debtor confirmed the submission by the Official Receiver and consented to his being adjudged bankrupt. I note the creditors have not met to pass resolution that the Debtor be adjudged bankrupt or otherwise, but since there is an express intimation by the debtor himself with the concurrence of the official receiver’s consent to his being adjudged bankrupt, accordingly, the debtor is adjudged bankrupt pursuant to section 20 of the Bankruptcy Act. There is no evidence that the Debtor owns property or assets or that he fraudulently transferred any of his property in order to defeat the creditors’ claims herein, therefore, the court will not issue any order for the property of the bankrupt to become divisible among his creditors, or vest in a trustee. Except, the Bankrupt or any other person or creditor shall be at liberty apply within 12 months for the discharge of this order of adjudication or for any other relief provided in law.
[3] Pursuant thereto, notice of the order adjudging the debtor bankrupt with full details of his name, residential and business addresses and description of the bankrupt, and the date of the adjudication, shall be gazetted in the prescribed manner, and the date of the order shall, for the purposes of this ruling, be the date of the adjudication herein.
Dated, signed and delivered in open court at Nairobi the 10th day of July 2014
--------------------------------------------------------
F. GIKONYO
JUDGE