[2022] KEHC 13950 (KLR)
The court found that the petitioner had demonstrated inability to pay his debts, as evidenced by the outstanding amounts owed to Equity Bank Ltd and Sea Angel Petrol Station, the loss of business assets, and the lack of any current means to settle the debts. The petition was unopposed, with both creditors failing to...
Source-derived case information.
- Citation
- [2022] KEHC 13950 (KLR)
- Parties
- Applicant: Urbanus Kyongoi Mule; Respondent: Equity Bank Ltd; Respondent: Sea Angel Petrol Station
- Court
- High Court
- Court Station
- High Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Insolvency Cause 1 of 2019
- Procedural Posture
- Bankruptcy Petition / Ruling on Debtor's Petition for Bankruptcy
- Outcome
- Petition allowed. Petitioner adjudged bankrupt. Bankruptcy order issued.
- Judges
- GMA Dulu
- Legal Topics
- Bankruptcy Proceedings, Insolvency Act Application, Creditor Claims, Statutory Power of Sale
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Urbanus Kyongoi Mule
Applicant
Equity Bank Ltd
Respondent
Sea Angel Petrol Station
Respondent
Procedural Posture
Bankruptcy Petition / Ruling on Debtor's Petition for Bankruptcy
Legal Issues
- 1 Whether the petitioner is unable to pay his debts as required under the Insolvency Act.
- 2 Whether the court should issue a bankruptcy order in favour of the petitioner.
Ratio Decidendi
The court found that the petitioner had demonstrated inability to pay his debts, as evidenced by the outstanding amounts owed to Equity Bank Ltd and Sea Angel Petrol Station, the loss of business assets, and the lack of any current means to settle the debts. The petition was unopposed, with both creditors failing to respond despite service and opportunity. In view of the uncontested facts and the provisions of the Insolvency Act, the court concluded that there was no reason to deny the petition. Accordingly, the petitioner was adjudged bankrupt and a bankruptcy order was issued in respect of his estate.
Court Disposition
Petition allowed. Petitioner adjudged bankrupt. Bankruptcy order issued.
Orders
- The petitioner Urbanus Kyongoi Mule is adjudged bankrupt.
- A bankruptcy order is issued in respect of the estate of Urbanus Kyongoi Mule.
Full Case Text
Judgment text and source record
25 paragraphs
In re Urbanus Kyongoi Mule (Insolvency Cause 1 of 2019) [2022] KEHC 13950 (KLR) (12 October 2022) (Ruling)
Neutral citation: [2022] KEHC 13950 (KLR)
Republic of Kenya
In the High Court at Makueni
Insolvency Cause 1 of 2019
GMA Dulu, J
October 12, 2022
Ruling
1. Before me is a debtors petition dated November 28, 2019 for bankruptcy filed by Urbanus Kyongoi Mule, also trading as Akanyangi Complex of Emali.
2. The petition was filed with a supporting affidavit sworn by the petitioner on November 28, 2019 in which it was deponed that from the year 2003, the petitioner was engaged in the transport industry through a lorries transportation business.
3. It was also deponed that in March 2005 Equity Bank Ltd advanced him a loan facility of Ksh 2,780,250/= secured by the joint registration and chattel mortgage, on motor vehicle Isuzu FTR truck which the petitioner was purchasing.
4. It was further deponed, that on September 28, 2005 Equity bank again advanced him a further loan facility of Kshs 6,500,000/= which was secured by the joint registration with Equity Bank of ownership of a motor vehicle Scania Prime Mover, Registration KAU 066ZC 3142.
5. Further, that around 2007, the driver of the Scania Prime Mover was caught with stolen goods from the port of Mombasa, and as aresult the motor vehicle was impounded at Kilindini port police station, and driver arrested.
6. It was deponed also that though the petitioner followed up the criminal matter between 2007 to 2011 and the motor vehicle then released, his business was affected to the extent that he could not service the loans, and that both loan facilities fell into arrears.
7. It was also sworn that in 2011, immediately the vehicle was released M/s Equity Bank Ltd repossessed the Scania Prime Mover Registration No KAU 065S/ZC3142 and exercised their statutory power of sale without informing the petitioner and also repossessed the Isuzu FTR truck.
8. It was also deponed, that in May 2011, Equity Bank Ltd instituted proceedings Milimani High Court Civil Suit No 208 of 2011 which was later transferred to the lower court as Chief Magistrate’s Court Commercial Division CMCC No 5018 of 2018, to recover the outstanding loan and interest, which suit is still pending in court.
9. It was further deponed hat Sea Angel Service Station was another creditor to the petitioner whom he fell into arrears with, and they filed Mombasa Chief Magistrate’s Civil Case No 1723 of 2007 which was finalized in December 2018, and because of the petitioner’s inability to pay, he was put in civil jail though later released, and that the total amount owing by the end of 2015 was Kshs 1,215,245/=.
10. Lastly, it was deponed that at the time of filing this petition for bankruptcy the debts owing amounted Kshs 5,364,487/= and that he did not have assets currently to pay the debts as he was now hawking onions at Emali.
11. I have considered the petition and documents filed through this petition of bankruptcy was served on those mentioned herein, and AN Atancha & company advocates came on record for Sea Angel Petrol Station and Kibicho & company advocates were served for Equity Ltd, none responded to the petition.
12. In addition, though Mr. Hassan on June 22, 2022 held brief for counsel for Sea Angel Petrol Station and was granted 14 days to file a response, they did not do so. Thus both interested parties did not file any response to the application.
13. The petitioner for bankruptcy herein thus stands unopposed, and there is no reason to decline the request of the petitioner.
14. Again, with the reasons provided to this court on his inability to pay debts by the petitioner which have not been contested, and in view of the provisions of the Insolvency Act, No 18 of 2015 I find no reason not to allow the request of the petitioner.
15. I thus allow the petition and order that the petitioner herein Urbanus Kyongo Mule, being unable to pay his debts be and is hereby adjudged bankrupt and a bankruptcy order is hereby issued in respect of his estate as requested.
16. As neither Equity Bank Ltd nor Sea Angel Petrol Station Ltd filed responses to the petition, I make no order as to costs.
DELIVERED, SIGNED & DATED THIS 12THDAY OF OCTOBER 2022, VIRTUALLY AT MAKUENI.……………………………….GEORGE DULUJUDGEMunyasia for applicantNo appearance for interested parties.