[2004] KEHC 543 (KLR)
The court determined that it had jurisdiction under Section 348 of the Companies Act, as well as its inherent powers, to grant directions to the receiver/manager regarding the sale of the remaining company property. The judge found that the sale was necessary to satisfy the outstanding Debenture and to bring the...
Source-derived case information.
- Citation
- [2004] KEHC 543 (KLR)
- Parties
- Applicant: Patrick Maina Kamau; Respondent: Kenatco Transport Company Limited (in Receivership)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 203 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling
- Outcome
- application allowed
- Legal Topics
- Receivership Directions, Company Property Sale, Debenture Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Maina Kamau
Applicant
Kenatco Transport Company Limited (in Receivership)
Respondent
Procedural Posture
Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the receiver/manager requires leave of court to sell the remaining company property under Section 348 of the Companies Act.
- 2 Whether the court should grant directions for the sale of the specified properties by public auction or private treaty.
Ratio Decidendi
The court determined that it had jurisdiction under Section 348 of the Companies Act, as well as its inherent powers, to grant directions to the receiver/manager regarding the sale of the remaining company property. The judge found that the sale was necessary to satisfy the outstanding Debenture and to bring the receivership to a proper conclusion. The court was satisfied that the application was properly brought and that the powers sought were within the scope of the receiver/manager's duties and the court's authority. Accordingly, the court granted leave for the applicant to sell the specified properties by public auction or private treaty, subject to current valuation for forced sale...
Court Disposition
application allowed
Orders
- Leave is granted to the receiver/manager to sell, through public auction or private treaty (subject to current valuation for forced sale purposes), all that property known as sub-division number 2362 of Section VI Mainland North, Mombasa and sub-division number 2360 of Section VI Mainland North, Mombasa.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC. CIVIL APPL. NO. 203 OF 2004
IN THE MATTER OF: KENATCO TRANSPORT COMPANY LIMITED (IN RECEIVERSHIP)
AND
IN THE MATTER OF: THE COMPANIES’ ACT (CAP 486) OFTHE LAWS OF KENYA
AND
IN THE MATTER OF: AN APPLICATION ON THE PART OF PATRICK MAINA KAMAU
THE RECEIVER/MANAGER OF KENATCOTRANSPORT COMPANY LIMITED FOR DIRECTIONS
PURSUANT TO SECTION 348 OF THE COMPANIES ACT (CAP486) OF THE LAWS OF KENYA
R U L I N G
1. The Applicant herein is Patrick Maina Kamau, joint receiver/manager of Kenatco Transport Company Ltd. 2. He seeks that this court, invoking powers granted by Section 345 of the Companies Act, Cap 486 and Rules 3 and 9 of the High Court Companies Rules should grant him leave to do the following:-
“Sell through public auction or private treaty (but subject to current valuation for forced sale purposes) all that property known as; sub -division number 2362 of Section VI Mainland North, Mombasa and sub -division number 2360 of Section VI, Mainland North, Mombasa.”
3. The reasons are that as receiver/manager, all other properties of Kenatco Trading Company Ltd. have been sold pursuant to a Debenture dated 20th July 1981 save the one mentioned above. The Applicant states in his Affidavit in support that it would serve no purpose if the company is wound up, yet the Debenture has not been satisfied, and there are properties belonging to the company that were not secured by the Debenture.
4. Initially I was not certain that Section 348 of the Companies Act which is with regard to the directions a court can give the receiver, would properly apply here. However, on further reflection I think that invoking that section together with the inherent powers of this court, and reading Clause 11 (1) of the Debenture dated 20. 7.1987, I should and I hereby grant the Applicant the prayers sought.
5. This court can give directions regarding the manner in which the remainder of the company’s property should be handled and in this case I think that for reasons given by the receiver/manager, the same should be sold. This court in any event can invoke its inherent power to ensure that the receivership comes to a tidy end. 6. In the event then, the Application dated 23rd February 2004 be and is hereby allowed.
7. Costs shall be in the cause. Dated and delivered at Nairobi this 27th day of February 2004.
I. LENAOLA
Ag. JUDGE
27. 2.2004
Before Lenaola Ag. J.
Amos CC
Ruling read in the presence of: -
Mr. Wanjohi holding brief for Mr. Kimani for the Applicant.
I. LENAOLA
Ag. JUDGE