[2007] KEHC 86 (KLR)
The court held that although the petitioner had not yet complied with all statutory requirements—specifically, the registrar's compliance order and advertisement of the petition—an order appointing the Official Receiver as interim liquidator could be made at this stage. The court further ordered that the voluntary...
Source-derived case information.
- Citation
- [2007] KEHC 86 (KLR)
- Parties
- Applicant: Discount Distributors Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Winding Up Cause 1of 20 of 2007
- Procedural Posture
- Winding Up Cause / Interlocutory Ruling on Interim Liquidator and Supervision Orders
- Outcome
- interim orders granted; winding-up to continue under court supervision subject to compliance
- Judges
- DW Mbuteti
- Legal Topics
- Company Winding Up, Court Supervision of Liquidation, Appointment of Liquidator
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Discount Distributors Limited
Applicant
Procedural Posture
Winding Up Cause / Interlocutory Ruling on Interim Liquidator and Supervision Orders
Legal Issues
- 1 Whether the court should appoint the Official Receiver as interim liquidator pending compliance with statutory requirements.
- 2 Whether the voluntary winding-up should continue under court supervision despite incomplete procedural compliance.
Ratio Decidendi
The court held that although the petitioner had not yet complied with all statutory requirements—specifically, the registrar's compliance order and advertisement of the petition—an order appointing the Official Receiver as interim liquidator could be made at this stage. The court further ordered that the voluntary winding-up, commenced by special resolution, should continue under court supervision, but subject to the petitioner fulfilling all legal and procedural requirements, including notice and advertisement. The court emphasized that statutory consequences under the Companies Act would flow automatically from the winding-up, and no specific orders were necessary in that regard. Costs...
Court Disposition
interim orders granted; winding-up to continue under court supervision subject to compliance
Orders
- The Official Receiver is appointed as interim liquidator of the petitioner.
- The voluntary winding-up of the petitioner shall continue under court supervision, subject to compliance with all statutory requirements.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Winding Up Cause 1of 2007
IN THE MATTER OF THE VOLUNTARY WINDING-UP OF
DISCOUNT DISTRIBUTORS LIMITED
AND
IN THE MATTER OF COMPANIES ACT,
CAP 486 LAWS OF KENYA
R U L I N G
The company herein, DISCOUNT DISTRIBUTORS LIMITED (hereinafter called the “Petitioner”) has, by amended petition dated 16th January, 2007 sought two main orders:-
“(a) That the voluntary winding-up of Discount Distributors Limited which commenced on 2nd January, 2007 be continued but subject to the supervision of the Honourable Court.
(b)That an interim order for appointment of the Official Receiver as the liquidator be granted by the Honourable Court and all legal actions or legal proceedings against the company or its directors for unpaid debts by Trade creditors, dishonoured cheques or for damages or criminal charges in any court be stayed pending the winding-up of the company by the honourable court.
(c)------
(d)------”
There is as yet no compliance order by the registrar, and there is no evidence that the petition has been advertised.
The Company filed together with the amended petition a summons dated 16th January, 2007 seeking an order, inter alia:-
“(a) --------
(b) --------
(c) That this being a voluntary winding-up petition which has complied with the provisions of the Companies (Winding-up) Rules, and it has been approved by the Deputy Registrar, the orders be granted as prayed in the amended petition.
(d) ------”
I have already observed that there is as yet no compliance order by the registrar, and that there is no evidence of advertisement of the petition. So, it cannot be said that the Petitioner has as yet complied with all the necessary requirements of the law and procedure. But an order for appointment of an interim liquidator can be made at this stage. I hereby appoint the Official Receiver as the interim liquidator of the Petitioner. The Petitioner will ensure compliance with all the relevant rules under the Companies (Winding-up) Rules. I also order that the voluntary winding-up of the Petitioner commenced by the special resolution passed on 2nd January, 2007 do continue under supervision of the court subject to the Petitioner complying with all necessary provisions of the law and procedure as to notice of the special resolution, advertisement of the petition etc., with liberty to any creditor, contributory or any other person to apply to court. There are certain consequences under Section 224 and 225 (as read together with Section 306) of the Companies Act, Cap. 486, flowing from the winding-up. The court does not need to make any specific orders in regard thereto.
Costs of the winding-up and of these proceedings shall be paid from the assets of the Petitioner. Orders accordingly.
DATED AND SIGNED AT NAIROBI THIS 22ND DAY OF JANUARY, 2007.
H.P.G. WAWERU
JUDGE
DELIVERED THIS 26TH DAY OF JANUARY, 2007.