[2007] KEHC 2010 (KLR)
The court held that the procedure in bankruptcy is distinct from that under the Civil Procedure Rules. Appearance in bankruptcy is effected by filing proof of debt with the Official Receiver, and not by filing a notice of appointment of advocates as required under Order III, rule 1 of the Civil Procedure Rules. Rule...
Source-derived case information.
- Citation
- [2007] KEHC 2010 (KLR)
- Parties
- Applicant: Kenya Commercial Bank Ltd; Applicant: Interfina Limited; Respondent: Joseph Muigai Wanene
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Bankruptcy Cause 54 of 2002
- Procedural Posture
- Bankruptcy Cause / Ruling on Preliminary Objection
- Outcome
- preliminary objection overruled
- Legal Topics
- Bankruptcy Procedure, Proof of Debt, Appearance of Advocates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Commercial Bank Ltd
Applicant
Interfina Limited
Applicant
Joseph Muigai Wanene
Respondent
Procedural Posture
Bankruptcy Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether advocates for the creditors were properly on record in bankruptcy proceedings without filing notices of appointment under Order III, rule 1 of the Civil Procedure Rules.
- 2 Whether the Civil Procedure Rules apply to bankruptcy proceedings except as provided by the Bankruptcy Rules.
Ratio Decidendi
The court held that the procedure in bankruptcy is distinct from that under the Civil Procedure Rules. Appearance in bankruptcy is effected by filing proof of debt with the Official Receiver, and not by filing a notice of appointment of advocates as required under Order III, rule 1 of the Civil Procedure Rules. Rule 317(2) of the Bankruptcy Rules expressly excludes the Civil Procedure Rules from bankruptcy proceedings except as specifically provided. Since both creditors had filed their proofs of debt through their advocates, they had properly entered appearance in the proceedings. There was no requirement under the Bankruptcy Rules for their advocates to file notices of appointment. The...
Court Disposition
preliminary objection overruled
Orders
- The preliminary objection is overruled with costs to the creditors and the Official Receiver.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Bankruptcy Cause 54 of 2002
(IN THE MATTER OF JOSEPH MUIGAI WANENE – DEBTOR
AND
IN THE MATTER OF THE BANKRUPTCY ACT, CAP. 53)
1. KENYA COMMERCIAL BANK LTD
2. INTERFINA LIMITED……...........…CREDITORS/APPLICANTS
V E R S U S
JOSEPH MUIGAI WANENE ….…..…… DEBTOR/RESPONDENT
R U L I N G
There has been considerable delay in the preparation and delivery of this ruling. The same was occasioned by my serious illness in 2006 and the long attendant recuperation. The delay is regretted.
When the applications herein by notices of motion dated 7th September 2005 and 24th April 2006 respectively (filed by Creditors KENYA COMMERCIAL BANK LTDandINTERFINA LIMITED) came up for hearing on 13th June 2006, learned counsel for the Debtor raised a preliminary objection on a point of law, to wit, that the Creditors’ learned counsels were not properly on record in that they had not filed and served notices of appointment of advocates as required by Order III, rule 1 of the Civil Procedure Rules.
It turned out that the advocates for INTERFINA LIMITED had indeed filed a notice of appointment of advocates on 18th May 2006 and duly served it upon the Debtor’s advocates. With regard to the advocates for KENYA COMMERCIAL BANK LTD., it was pointed out that the procedure in bankruptcy is different from the procedure under the Civil Procedure Rules; appearance in bankruptcy is made by way of proof of debt to the Official Receiver. Rule 317(2) of the Bankruptcy Rules made under the Bankruptcy Act, Cap. 53 was referred to. It excludes the rules of procedure of the High Court from proceedings in bankruptcy, save as provided by the Rules.
Both Creditors filed their proofs of debt with the Official Receiver through their advocates. They thereby properly entered appearance in these proceedings, and it was not necessary for their advocates to file notices of appointment of advocates under Order III, rule 1 of the Civil Procedure Rules, which Rules, in any event, have no application to proceedings in bankruptcy save as provided by the Bankruptcy Rules. It has not been pointed out that Order III, rule 1 of the Civil Procedure Rules has been operationalized by the Bankruptcy Rules.
The preliminary objection is not well-taken; it is hereby overruled with costs to the Creditors and the Official Receiver. It is so ordered.
DATED AT NAIROBI THIS 5TH DAY OF SEPTEMBER, 2007
H. P. G. WAWERU
J U D G E
DELIVERED THIS 7TH DAY OF SEPTEMBER, 2007