[1992] KEHC 27 (KLR)
The court found that the applicant's application for discharge from bankruptcy was procedurally defective because it was not accompanied by a certificate from the Official Receiver as required by rule 186 of the Bankruptcy Rules. The court also noted that the applicant's affidavit did not substantiate the claim that...
Source-derived case information.
- Citation
- [1992] KEHC 27 (KLR)
- Parties
- Applicant: Paul Joseph Ngei; Respondent: Official Receiver
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Bankruptcy Cause 14 of 1988
- Procedural Posture
- Bankruptcy Cause / Ruling on Application for Discharge From Bankruptcy
- Outcome
- Application stayed pending compliance with procedural requirements.
- Legal Topics
- Bankruptcy Discharge, Procedural Requirements, Official Receiver Certificate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Joseph Ngei
Applicant
Official Receiver
Respondent
Procedural Posture
Bankruptcy Cause / Ruling on Application for Discharge From Bankruptcy
Legal Issues
- 1 Whether the applicant is entitled to be discharged from bankruptcy without compliance with procedural requirements.
- 2 Whether the absence of a certificate from the Official Receiver invalidates the application for discharge.
- 3 Whether the court has jurisdiction to annul the declaration of bankruptcy after confirmation by the Court of Appeal.
Ratio Decidendi
The court found that the applicant's application for discharge from bankruptcy was procedurally defective because it was not accompanied by a certificate from the Official Receiver as required by rule 186 of the Bankruptcy Rules. The court also noted that the applicant's affidavit did not substantiate the claim that the Official Receiver refused to provide the certificate. Furthermore, the court held that it lacked jurisdiction to annul the declaration of bankruptcy, as this had already been confirmed by the Court of Appeal. Consequently, the court treated the hearing as one for directions and ordered compliance with the procedural requirements before the application could proceed.
Court Disposition
Application stayed pending compliance with procedural requirements.
Orders
- The Official Receiver is to prepare a certificate as required by rule 186 of the Bankruptcy Rules and serve it on the Registrar within 7 days.
- Upon receipt of the certificate, the Registrar is to set down the matter for hearing in accordance with the Bankruptcy Rules after all requirements are met.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Bankruptcy Cause 14 of 1988
PAUL JOSEPH NGEI……………….........................................…………………APPLICANT
VERSUS
OFFICIAL RECEIVER…………………......................................…………….RESPONDENT
18. 12. 1992
Coram: Mbito, J.
Miss Abincha for applicant
Nil for Respondent
Mwai - Clerk
RULING
This application does not appear to have been prepared by a qualified lawyer and if so then the person who prepared it has no business calling himself a lawyer.
This is the second time, the bankrupt is trying to have either absolved or discharged from the orders of bankruptcy. He would by now be a free person. In the first application filed on 22nd July, 1992, he filed an application similar to the current one. It was not supported by a certificate from the official receiver; it had not been advertised and a report had not been filed as it was fixed for hearing one day after filing. It was naturally refused as the document did not ask for discharge.
A similar application was filed herein on 8th December, 1992 and was fixed for hearing on 9th December 1992. Naturally it could not proceed and was adjourned to 15th December, 1992 when I ordered that a proper application be made. It was duly made and came up for hearing on 17th December, 1992. The learned counsel for the respondent objects to the continuation thereof on the grounds that it is not accompanied by a certificate of the official receiver, that it has not been by registrar etc. miss Abicha argues that, that had not been done as the Official Receiver had refused to provide a certificate which fact is not deponed to in the applicant’s affidavit and is rightly denied by Mrs. Gachegu. In fact the affidavit merely states that the bankruptcy never had any debtors and the declaration of bankruptcy should be annulled, a matter which is now beyond this court as the declaration was confirmed by the court of appeal.
Looking through this matter I find that the applicant is being misadvised. I have therefore decided to treat the hearing as for directions and now direct as follows:-
The Official Receiver should prepare a certificate as engaged by rule 186 of the Bankruptcy Rules and serve it on the Registrar of this court within 7 days hereof for attachment of the current application.
on receipt of certificate, the registrar to set down the matter for hearing as per the bankruptcy rules after complying with all its requirements.
Meanwhile all further proceedings herein are stayed until the above exercise is completed. Cost of this application to date to be paid by applicant in any event.
Dated at Nairobi this 18th day of December, 1992.
G.P. MBITO
JUDGE