[2005] KEHC 3375 (KLR)
The court determined that the issues arising from the Originating Summons and the Replying Affidavit, particularly regarding the classification of retirement benefits as preferred debts and the period for which the Receivers may be liable, require formal framing and hearing. The court directed the parties to...
Source-derived case information.
- Citation
- [2005] KEHC 3375 (KLR)
- Parties
- Plaintiff: Kamotho Waiganjo (Suing as the Liquidator/Trustee of Dawa Pharmaceuticals Staff Retirement Benefits Scheme (in Liquidation)); Defendant: Dawa Pharmaceuticals Limited (In Receivership); Interested Party: Engineer Gakuru Kanyanja; Interested Party: Engineer George Nyagisere
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 600 of 2004
- Procedural Posture
- Civil Case / Ruling on Directions for Hearing of Originating Summons
- Outcome
- Directions issued for parties to frame and file issues; matter to be set for hearing on a priority basis.
- Legal Topics
- Company Liquidation, Priority of Debts, Retirement Benefits, Receivership, Preferred Creditors
- 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
Kamotho Waiganjo (Suing as the Liquidator/Trustee of Dawa Pharmaceuticals Staff Retirement Benefits Scheme (in Liquidation))
Plaintiff
Dawa Pharmaceuticals Limited (In Receivership)
Defendant
Engineer Gakuru Kanyanja
Interested Party
Engineer George Nyagisere
Interested Party
Procedural Posture
Civil Case / Ruling on Directions for Hearing of Originating Summons
Legal Issues
- 1 Whether retirement benefits payable to workers under a retirement benefits scheme are preferred debts payable in priority to other debts, including those of secured creditors.
- 2 Whether the sum of Ksh. 22,877,000 is a benefit envisaged to be a preferred debt under Section 311(1)(c) of the Companies Act.
- 3 Whether the Receiver is liable only for amounts due in respect of contributions payable during the twelve months immediately preceding their appointment as Receivers under the Retirement Benefits Act.
Ratio Decidendi
The court determined that the issues arising from the Originating Summons and the Replying Affidavit, particularly regarding the classification of retirement benefits as preferred debts and the period for which the Receivers may be liable, require formal framing and hearing. The court directed the parties to formulate and file specific issues within thirty days and to fix the matter for hearing on a priority basis. The court did not make a final determination on the substantive legal questions but set the procedural framework for their resolution, emphasizing the need to clarify the status of related proceedings (H.C.C.C. 1667 of 2001) and their potential impact on the present case.
Court Disposition
Directions issued for parties to frame and file issues; matter to be set for hearing on a priority basis.
Orders
- Parties to formulate and file specific issues arising from the Originating Summons and Replying Affidavit within thirty (30) days.
- After filing of issues, the matter to be fixed for hearing on a priority basis.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS
Civil Case 600 of 2004
KAMOTHO WAIGANJO (Suing as the Liquidator/Trustee of
DAWA PHARMACEUTICALS STAFF RETIREMENT BENEFITS
SCHEME (in Liquidation)…………………………...………………..…….PLAINTIFF
VERSUS
DAWA PHARMACEUTICALS LIMITED (In Receivership)..............DEFENDANT
AND
ENGINEER GAKURU KANYANJA
ENGINEER GEORGE NYAGISERE (both applying as joint
Receivers – Managers of DAWA PHARMACEUTICALS
LIMITED (In Receivership)………….…………..………….INTERESTED PARTIES
RULING
By an application dated 17. 08. 2004 brought by way of an Originating Summons pursuant to the provisions of Section 95 (c) & SS. 228, 311(7) of the Companies Act (as amended by Act No. 8 of 2003) (Cap. 486, Laws of Kenya), Order XXVI Rules 1 & 5 of the Civil Procedure Rules and all enabling provisions of the law, the Applicant seeks orders inter alia, of a declaration that the amount payable to
workers under a retirement benefits scheme are preferred debts payable in priority to other debts including those of secured creditors.
This application is essentially predicated upon the provisions of Order XXXVI rules 8A, 8B and 12 which require that any party to a suit by originating summons may apply to a judge in Chambers for directions. Rule 9 thereof enables the Court to give directions as it may think just for the trial of any issues arising thereupon. The Court or judge may also make any amendments necessary to make the summons accord with existing facts and to raise the matters in issue between the parties.
I have perused the application dated 17. 08. 2004 (the Originating Summons). The issues that would arise herein are the matters set out in paragraphs 2 to 4 inclusive in the Originating Summons. I therefore direct that parties formulate specific issues in relation to those matters.
The Replying Affidavit of Engineer Gakuru Kanyanja sworn on 23. 09. 2004, and filed on 27. 09. 2004 suggests in paragraph 3 of the Affidavit that the sum of Ksh. 22,877,000/= is not admitted as due from the Receivers on the grounds inter aliathatthe sum is not a benefit envisaged to be preferred debt under S. 311(1)(c) of the Companies Act – that is to say “retirement benefits contributions and vested benefits of any clerk or servant of the Company” and that the Receiver would be liable only for “all amounts due in respect of contributions payable during the period of twelve months immediately preceding their appointment as Receivers, as employers under the Retirement Benefits Act”(para 7)
Thesetoo areissueswhich need to be framed and canvassed at the hearing of the Originating Summons.
The applicants also need to establish the status of H.C.C.C. 1667 of 2001, (referred to in paragraph 13 of the Replying Affidavit), and determine whether the orders (if any) made in that case would affect the determination of the Originating Summons herein.
I therefore direct in summary that the issues herein (as outlined in the Originating Summons and Replying Affidavit thereto) be framed and filed in Court within thirty (30) days of the orders herein, and that after filing those issues, the matter be fixed for hearing on a priority basis.
Dated and Delivered at Nairobi this 2nd day of March 2005.
ANYARA EMUKULE
JUDGE