[2007] KEHC 2787 (KLR)
The court held that while the Official Receiver ordinarily has conduct of legal matters concerning the debtor's estate after a receiving order, the application in question concerned the debtor's personal liberty and not his estate. The Official Receiver had no objection to the debtor being represented by counsel,...
Source-derived case information.
- Citation
- [2007] KEHC 2787 (KLR)
- Parties
- Debtor: Navindra Ramji Shah; Respondent: Official Receiver; Respondent: Decree Holder
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Bankruptcy Cause 17 of 2007
- Procedural Posture
- Bankruptcy Cause / Ruling on Preliminary Objection
- Outcome
- preliminary objection overruled
- Judges
- GG Okwengu
- Legal Topics
- Bankruptcy Proceedings, Debtor Representation, Receiving Order Effects
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Navindra Ramji Shah
Debtor
Official Receiver
Respondent
Decree Holder
Respondent
Procedural Posture
Bankruptcy Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether a debtor under a receiving order can engage an advocate to represent him in court.
- 2 Whether the application for release from civil jail should be brought by the Official Receiver or the debtor's advocate.
Ratio Decidendi
The court held that while the Official Receiver ordinarily has conduct of legal matters concerning the debtor's estate after a receiving order, the application in question concerned the debtor's personal liberty and not his estate. The Official Receiver had no objection to the debtor being represented by counsel, especially as there was assurance that no charge would be levied. Therefore, there was no justification to deny the debtor legal representation. The preliminary objection was overruled, affirming the debtor's right to be represented by an advocate in matters affecting his liberty, even after a receiving order has been made.
Court Disposition
preliminary objection overruled
Orders
- The preliminary objection is overruled.
- The debtor is allowed to be represented by counsel in the application for release from civil jail.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Bankruptcy Cause 17 of 2007
IN THE MATTER OF BANKRUPTCY CAUSE
A N D
RE: NAVINDRA RAMJI SHAH – DEBTOR
R U L I N G
On 27th February 2007, Navindra Ramji Shah T/A Joint General Supplies and Distributors filed a Debtors petition under the Bankruptcy Act for a receiving order to be made in respect of his estate. A certificate of compliance duly signed by the Official Receiver was filed on 5th March 2007 and a Receiving order duly signed by the Deputy Registrar on 9th March 2007.
On the 12th March 2007, the Debtor filed a notice of motion through the firm of E. M. Obonyo and Company Advocates seeking to have the Debtor released from Civil Jail where He was committed on 9th March 2007 on the grounds that his continued incaceration in the face of the Receiving order is illegal.
A notice of preliminary objection was filed by Bengi Miriti and Associates on behalf of the Decree Holder contending that a Receiving Order having been made against the Debtor, the Debtor has no power authority or legal mandate to engage an advocate and therefore the firm of E. M. Obonyo and Company should not be allowed to act for him. It was maintained that only the Official Receiver can bring any action concerning the property of the Debtor, or move the court in such an application. In response Mr. Onyancha maintains that the Official Receiver is only concerned with the estate of the Debtor, but that the Debtor has a right to be represented in court. Mr. Gakuru who appeared for the Official Receiver concurred with Mr. Onyancha. He indicated that the Official Receiver had no objection to the advocates appearing for the Debtor.
I have considered the preliminary objection, first and foremost it is evident that the Debtor is already in Civil Jail and is therefore inhibited in bringing such an application. The same can therefore only be done on his behalf. Ideally, the same should have been done by the Official Receiver in whom the Debtor’s estate now vests. However the application concerns the Debtor’s personal liberty and not his estate per – se.
I understand the general thinking behind the Creditor’s objection, for how can the Debtor afford to engage an advocate if a Receiving Order has been made against him and He is now no longer in control of his finances? The Official Receiver has however indicated that He has no objection to the advocate representing the Debtor, as assurance has been given that there will be no charge. In the circumstances, there is no justification for the court to deny the Debtor representation by counsel. The preliminary objection is therefore overruled.
Dated, signed and delivered this 22nd day of May 2007.
H. M. OKWENGU
JUDGE