Insolvency Act
Part 2 of 4 · provisions 201–400
The Cabinet Secretary may, by notice in the Gazette, appoint dates when provisions of the Act come into operation; different provisions may have different commencement dates, and any provision not brought into force within nine months after publication comes into force at the end of that period.
- Jurisdiction
- Kenya
- Instrument
- Act or statute
- Citation
- Cap. 53
- Version
- 31 Dec 2022
- Language
- en
- Official source
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Source attribution: Source: Kenya Law
Statute overview
About this statute
The Cabinet Secretary may, by notice in the Gazette, appoint dates when provisions of the Act come into operation; different provisions may have different commencement dates, and any provision not brought into force within nine months after publication comes into force at the end of that period. Section 2(3) defines who counts as a 'member of the family' for the Act by listing specific relations, and states that for an adopted child the adopted parents are included. Sets out the Act's objects: to provide a framework for administering insolvent estates (natural persons, unincorporated entities, companies and other bodies corporate); to enable insolvent persons and entities to continue as going concerns to meet creditor claims or achieve better outcomes than bankruptcy or liquidation; and to provide an orderly system for adjudging bankrupt and for liquidating irredeemable entities and distributing assets for the benefit of creditors. The Official Receiver may revoke an insolvency practitioner’s authorisation for specified grounds; revocation can occur at the holder’s request or with the holder’s consent; the Official Receiver must not revoke (except at request/consent) without giving the holder an opportunity to be heard; a revocation does not take effect until the appeal period has expired or any lodged appeal is finally determined or withdrawn. A person whose application for authorisation as an insolvency practitioner is refused, or whose authorisation is revoked (except at their request or with their consent), may appeal to the Court; appeals must meet time and form requirements. The Official Receiver is entitled to be served and to appear. The Court must quash or confirm the Official Receiver's decision and may make ancillary orders including costs.
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Provisions of Insolvency Act
Showing 200 of 738
Part III
BANKRUPTCY OF NATURAL PERSONS
- 272 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 272. Court may annul bankruptcy order in certain circumstance
Court may annul a bankruptcy order on specified grounds; the Official Receiver or any person with a legitimate interest may apply to the Court.
Section 272. Court may annul bankruptcy order in certain circumstance Section 272(1) The Official Receiver or any other person claiming to have a legitimate interest in the matter may make an application to the Court for an order under subsection (2). Section 272(2)(a) on reconsideration it finds that the bankrupt should not have been adjudged bankrupt; Section 272(2)(b) it is satisfied that the bankrupt's debts have been fully paid or satisfied and that the bankruptcy trustee's fees and costs incurred in the bankruptcy have been paid; Section 272(2)(c) it considers that the liability of the bankrupt to pay the bankrupt's debts should be revived because there has been a substantial change in the bankrupt's financial circumstances since the bankruptcy commenced; or Section 272(2)(d) it has approved a deed of composition under Division 24 of Part III or a voluntary arrangement under Division 1 of Part IV. Section 272(3)(a) the applicant shall serve a copy of the application on the Official Receiver in the manner and within the period directed by the Court; and Section 272(3)(b) on being served with a copy of the application, the Official Receiver is entitled to appear at the hearing of the application as a party to the proceeding. Section 272(4)(a) in the case of an application made on the ground specified in subsection (2)(a), from the time when it was made; or Section 272(4)(b) in the case of an application made on one of the grounds specified in subsection (2)(b) to (d), from the time when the Court made the order of annulment. Section 272(5) If an application for annulment is made on the ground that the bankrupt should not have been adjudged bankrupt because of a defect in form or procedure, the Court may, in addition to annulling the bankruptcy order, exercise its powers under section 696 to correct the defect and order that the bankruptcy application be reheard as if no bankruptcy order had been made. Section 272(6)(a) the Court may, on the Official Receiver's application, fix an amount as reasonable remuneration for the Official Receiver's services and order that it be paid, in addition to any costs that may be awarded; Section 272(6)(b) the Official Receiver shall pay that amount into the Consolidated Fund or into some other public account prescribed by the insolvency regulations for the purposes of this section; and Section 272(6)(c) the Official Receiver is not entitled to remuneration under section 710 for those services. - 273 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 273. When Official Receiver may annul bankruptcy order
The Official Receiver may annul a bankruptcy order in specified circumstances and only if the order was made on a debtor's application.
Section 273. When Official Receiver may annul bankruptcy order Section 273(1) The Official Receiver may annul a bankruptcy order on any of the grounds specified in subsection (2), but only if the order was made on a debtor's application. Section 273(2)(a) that the Official Receiver considers that the bankrupt should not have been adjudged bankrupt; Section 273(2)(b) that the Official Receiver is satisfied that the bankrupt's debts have been fully paid or satisfied and that the bankruptcy trustee's fees and costs incurred in the bankruptcy have been paid; Section 273(2)(c) that the Official Receiver considers that the liability of the bankrupt to pay the bankrupt's debts should be revived because there has been a substantial change in the bankrupt's financial circumstances since the bankruptcy commenced; Section 273(2)(d) that the Court has approved a deed of composition under Division 24 of Part III or a voluntary arrangement under Division 1 of Part IV. Section 273(3) The Official Receiver may annul the bankruptcy order on the application of any person interested or on the Official Receiver's own initiative. Section 273(4)(a) in the case of an application on the ground specified in subsection (2)(a), from the time when the order was originally made; and Section 273(4)(b) in the case of an application on one of the grounds specified in subsection (2)(b) to (d), from the time of the Official Receiver's order of annulment. - 274 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 274. Effect of annulment of bankruptcy order
When a bankruptcy order is annulled, property that had vested in the Official Receiver (and which was not sold or otherwise disposed of) revests in the bankrupt without needing a transfer.
Section 274. Effect of annulment of bankruptcy order Section 274(1) On annulment of a bankruptcy order, all property of the bankrupt vested in the Official Receiver on bankruptcy and not sold or otherwise disposed of by the Official Receiver revests in the bankrupt without the need for a transfer. Section 274(2)(a) is not affected as to its validity by the annulment; and Section 274(2)(b) has effect as if no bankruptcy order had been made in respect of the bankrupt. - 275 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 275. Interpretation: Division 24
Defines "confirming resolution" and "preliminary resolution" as special resolutions passed by a bankrupt's creditors in accordance with section 276.
Section 275. Interpretation: Division 24 Section In this Division— "confirming resolution" means a special resolution passed by a bankrupt's creditors in accordance with section 276 confirming a preliminary resolution; "preliminary resolution" means a special resolution passed by a bankrupt's creditors in accordance with section 276. - 276 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 276. Creditors may accept composition by passing preliminary resolution
Creditors of a bankrupt may accept a composition to satisfy their debts by passing a special resolution; if there are multiple classes of creditors one class's delay or failure to accept does not stop other classes from accepting.
Section 276. Creditors may accept composition by passing preliminary resolution Section 276(1) The creditors of a bankrupt may accept a composition in satisfaction of the debts due to them from the bankrupt by passing a special resolution that contains the terms of the composition. Section 276(2) If there is more than one class of creditors, the delay of one class in accepting, or the failure of one class to accept, does not prevent any other of the classes from accepting the composition. - 277 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 277. Composition not effective unless approved by confirming resolution
A composition becomes effective only if creditors pass a confirming special resolution; creditors may vary terms in that confirming resolution provided the variations are at least as favourable, and certain small‑debt creditors are excluded from counting toward the majority.
Section 277. Composition not effective unless approved by confirming resolution Section 277(1) A composition is ineffective only when creditors have passed a special resolution confirming preliminary resolution. Section 277(2) In the confirming resolution, the creditors may vary the terms of the composition set out in the preliminary resolution, if the terms as varied are at least as favourable to the creditors as those set out in the preliminary resolution. Section 277(3)(a) states generally the terms of the proposal for composition; and Section 277(3)(b) is accompanied by a report by the Official Receiver on that proposal. Section 277(4) If the proposal for composition provides for the payment in full of all creditors whose respective debts do not exceed a specified amount, that class of creditors is not to be counted either in number or value for the purpose of counting the requisite majority of creditors for passing the confirming resolution. - 278 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 278. Compositions with members of partnership
If members of a partnership are adjudged bankrupt, the joint creditors and each class of separate creditors may make separate compositions; where that applies, the majorities required to confirm are the separate majorities of each class, although otherwise joint and separate creditors are counted as one body for voting.
Section 278. Compositions with members of partnership Section 278(1) If members of a partnership have been adjudged bankrupt, the joint creditors and each class of separate creditors can make separate compositions. Section 278(2) lf subsection (1) applies, the majorities of creditors required for passing the confirming resolution are the separate majorities of each class, but with that exception the joint and separate creditors are to be counted as one body for voting purposes. - 279 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 279. Composition not binding unless approved by the Court
A composition is not binding until approved by the Court; when approved it binds all creditors for provable debts, and the Court may refuse or must not approve in specified circumstances; the Court's approval is conclusive on validity.
Section 279. Composition not binding unless approved by the Court Section 279(1) A composition is not binding until it is approved by the Court. Section 279(2) When approved by the Court, a composition binds all the creditors in respect of provable debts due to them by the bankrupt. Section 279(3)(a) section 276 or 277 ; Section 279(3)(b) the terms of the composition are not reasonable or are not calculated to benefit the general body of creditors; Section 279(3)(c) the bankrupt is guilty of misconduct that justifies the Court in refusing, qualifying, or suspending the bankrupt's discharge; or Section 279(3)(d) for any other reason it should not approve the composition. Section 279(4) The Court may not approve a composition if the composition does not provide for the payment, before any other debts are paid, of those debts that have priority under the Second Schedule. Section 279(5) The Court's approval is conclusive as to the validity of the composition. - 28 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 28. Orders if there is more than one order
When a creditor's application for a bankruptcy order relates to more than one debtor, the Court may refuse to make the order in respect of one or some of the debtors without affecting the application for the remaining debtor(s).
Section 28. Orders if there is more than one order Section If an application made by a creditor for a bankruptcy order relates to more than one debtor, the Court may refuse to make such an order in respect of one or some of the debtors without affecting the application made in relation to the remaining debtor or debtors. - 280 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 280. Procedure for court approval of composition
The bankrupt or the Official Receiver may apply to the Court to approve the composition; the Court may hear the application only if satisfied that each creditor who submitted a claim was given notice; the Court may receive and consider the Official Receiver's report and hear objections; when approving the composition the Court may correct formal errors but may not alter the composition's substance.
Section 280. Procedure for court approval of composition Section 280(1) The bankrupt or the Official Receiver may apply to the Court to approve the composition. Section 280(2) The Court may hear the application only if satisfied that each creditor who has submitted a claim in the bankruptcy has been given notice of it. Section 280(3)(a) receive and consider a report by the Official Receiver regarding the terms of the composition and the bankrupt's conduct; and Section 280(3)(b) hear any objection by or on behalf of a creditor. Section 280(4) When it approves the composition, the Court may correct any formal or accidental error or omission, but may not alter the substance of the composition. - 281 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 281. Deed of composition to be executed
The bankrupt and the Official Receiver must execute a deed of composition to put the proposal into effect, and the Official Receiver must apply to the Court for confirmation of the deed.
Section 281. Deed of composition to be executed Section 281(1)(a) the bankrupt and the Official Receiver shall execute a deed of composition for putting the proposal into effect; and Section 281(1)(b) the Official Receiver shall apply to the Court for confirmation of the deed. Section 281(2)(a) direct that the deed be lodged in the Court; and Section 281(2)(b) on lodgement of the deed, quash the relevant bankruptcy order. Section 281(3) The deed may not be entered and lodged in the Court unless the prescribed commission has been paid to the Official Receiver. Section 281(4) The quashing under subsection (2) does not revest the bankrupt's property in the bankrupt in accordance with section 274 (1). - 282 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 282. Effect of deed of composition
A deed of composition binds all the creditors in all respects as if they had each executed the deed.
Section 282. Effect of deed of composition Section the deed binds all the creditors in all respects as if they had each executed the deed; and - 283 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 283. Bankrupt remains liable for unpaid balances of certain debts
A bankrupt must remain liable for unpaid balances of certain debts under specified conditions.
Section 283. Bankrupt remains liable for unpaid balances of certain debts Section 283(1)(a) incurred or increased the debt; or Section 283(1)(a)(i) incurred or increased the debt; or Section 283(1)(a)(ii) on or before the date of the composition, obtained forbearance on the debt; and Section 283(1)(b) the creditor who has been defrauded has not agreed to the composition. Section 283(2) For the purposes of subsection (1)(b), a creditor does not agree to the composition merely by proving the debt and accepting payment of a distribution of the assets in the estate. - 284 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 284. Deadlines for steps to approve composition and execute deed
Some steps in approving a composition and executing its deed must occur within specific short time limits: the Court must approve the composition within one month after a confirming resolution is passed; the bankrupt must execute the deed within seven days after Court approval (or within any additional time the Court allows).
Section 284. Deadlines for steps to approve composition and execute deed Section 284(1)(a) the confirming resolution has to have been passed within one month after the preliminary resolution is passed; Section 284(1)(b) the Court has to have approved the composition within one month after the confirming resolution is passed; Section 284(1)(c) the bankrupt has to have executed the deed of composition within seven days after the Court approves the composition or, if the Court allows the bankrupt additional time, within that time. Section 284(2)(a) the bankruptcy proceedings resume as if there had been no confirming resolution; and Section 284(2)(b) none of the periods specified in subsection (1) counts for the purpose of calculating a period of time for a purpose of this Act. - 285 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 285. Procedure following approval of composition by the Court
After the Court approves a composition, the deed is to be recorded in the Court registry, may be delivered to the Official Receiver on request, any vesting in the deed must be registered or recorded in the appropriate public registry or office, and the deed is then returned to the Registrar of the Court; property (or so much of it under the control of the Official Receiver) revests in the bankrupt or the bankruptcy trustee.
Section 285. Procedure following approval of composition by the Court Section 285(1)(a) endorse on the deed that it has been recorded in the Court registry; and Section 285(1)(b) if requested to do so by the Official Receiver, deliver the deed to the Official Receiver. Section 285(2)(a) take all steps necessary to have any vesting provided for in the deed registered or recorded in the appropriate public registry or office; and Section 285(2)(b) then return the deed to the Registrar of the Court. Section 285(3)(a) the bankrupt's property; or Section 285(3)(b) so much of the bankrupt's property as is under the control of the Official Receiver and that under the composition revests in the bankrupt or the bankruptcy trustee. - 286 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 286. How composition may be enforced
The Court may, on application by eligible applicants, order payment enforcement or enforcement of composition provisions.
Section 286. How composition may be enforced Section 286(1) On the application of any person aggrieved by a failure to pay an amount payable in accordance with a composition approved by the Court, the Court may order that the failure to pay be remedied. Section 286(2) On the application of a person who claims to have an interest in a composition approved by the Court, the Court may make an order enforcing the provisions of a composition. - 287 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 287. Jurisdiction of the Court in relation to composition and deed of composition
After the preliminary resolution is passed, the Court retains exclusive jurisdiction over the composition and deed of composition and their administration, and may summon and examine the bankrupt and witnesses and may make appropriate orders, including as to costs.
Section 287. Jurisdiction of the Court in relation to composition and deed of composition Section 287(1) After the preliminary resolution has been passed, the Court continues to have exclusive jurisdiction in relation to the composition and the deed of composition, and their administration. Section 287(2)(a) for the purpose of summoning and examining the bankrupt and witnesses, may direct the proceeding as if it were a proceeding under Division 17; and Section 287(2)(b) may make such order or orders as it considers appropriate, including an order as to the costs of the application. - 288 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 288. Law and practice in bankruptcy to apply to deed of composition
The law and practice in bankruptcy apply to a deed of composition.
Section 288. Law and practice in bankruptcy to apply to deed of composition - 289 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 289. Offences in relation to debts
A bankrupt commits an offence if, when contracting a debt, the bankrupt lacked capacity to pay that debt when due and to pay all other debts; examples include gambling, rash speculation, unjustifiable spending or living extravagantly; it is a defence to prove no intention to defraud.
Section 289. Offences in relation to debts Section 289(1) A bankrupt commits an offence if the bankrupt did not, when contracting a debt, have the capacity to pay the debt when it fell due for payment, as well as to pay all the bankrupt's other debts. Section 289(2)(a) by gambling; Section 289(2)(b) by engaging in rash and hazardous speculation; Section 289(2)(c) by unjustifiable spending; or Section 289(2)(d) by living extravagantly. Section 289(3) In proceedings for an offence under subsection (1) or (2), it is a defence to prove that, at the relevant time, the bankrupt had no intention to defraud. - 29 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 29. Power of the Court to make order staying bankruptcy application, etc.
The Court has the power to make various orders (including staying bankruptcy applications and making orders as to costs), and the debtor, the bankruptcy trustee or any creditor may apply for an order under this section.
Section 29. Power of the Court to make order staying bankruptcy application, etc. Section 29(1)(a) has made a disposition of all, or substantially all, of the property of the debtor to a trustee for the benefit of the creditors of the debtor; Section 29(1)(b) has made a proposal under Division I of Part IV; or Section 29(1)(c) has applied for a summary instalment order under that Division. Section 29(2) The debtor, the bankruptcy trustee or any creditor may apply for an order under this section. Section 29(3)(a) an order staying the bankruptcy application; Section 29(3)(b) an order staying any other bankruptcy application; Section 29(3)(c) an order as to costs; Section 29(3)(d) if it orders costs to be paid to the creditor who applied for the bankruptcy application—an order that the costs be paid out of the assets of the debtor. Section 29(4) This section does not limit the powers of the Court under section 39 . - 290 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 290. Offences in relation to property
Section 290 makes it an offence for a bankrupt to transfer, give charges over, conceal, or fraudulently move the bankrupt's property (with specific temporal and value conditions) and allows the bankrupt to raise as a defence that there was no intention to defraud.
Section 290. Offences in relation to property Section 290(1)(a) during the two months immediately preceding the date on which an unsatisfied judgment or order for payment of money was made against the bankrupt; or Section 290(1)(a)(i) during the two months immediately preceding the date on which an unsatisfied judgment or order for payment of money was made against the bankrupt; or Section 290(1)(a)(ii) at any time after such a judgment or order was made; or Section 290(1)(b) makes or causes to be made a gift, delivery or transfer of any part of the bankrupt's property; or Section 290(1)(b)(i) makes or causes to be made a gift, delivery or transfer of any part of the bankrupt's property; or Section 290(1)(b)(ii) gives or causes to be given a charge over any part of that property. Section 290(2)(a) conceals any part of the bankrupt's property to the value of fifty thousand shillings or more; Section 290(2)(b) conceals any debt due to the bankrupt or due from the bankrupt; or Section 290(2)(c) fraudulently moves any part of the bankrupt's property to the value of fifty thousand shillings or more. Section 290(3) In proceedings for an offence under subsection (1)(a), it is a defence to prove that, at the relevant time, the bankrupt had no intention to defraud any of the bankrupt's creditors. Section 290(4) In proceedings for an offence under subsection (2)(a) or (b), it is a defence to prove that, at the relevant time, the bankrupt had no intention to defraud. - 291 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 291. Offence in relation to written statement to creditor, etc.
A bankrupt commits an offence if, within the three years before the bankruptcy order, they make or produce to a material person a written statement of their financial position that is false or misleading; it is a defence to prove there was no intention to deceive.
Section 291. Offence in relation to written statement to creditor, etc. Section 291(1) A bankrupt commits an offence if, during the three years immediately preceding the time when the bankruptcy order was made in respect of the bankrupt, the bankrupt makes or produces to a material person a written statement of the bankrupt's financial position that contains information that is false or misleading. Section 291(2)(a) a person who is at the relevant time the bankrupt's creditor; Section 291(2)(b) a person who becomes the bankrupt's creditor as a result of the statement being made or produced to the person. Section 291(3) In proceedings for an offence under subsection (1), it is a defence to prove that at the relevant time the bankrupt had no intention to deceive. - 292 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 292. Offence in relation to documents, etc.
It is an offence for a bankrupt to conceal, destroy, falsify, make false entries in, fraudulently alter or omit, or prevent production of, documents relating to their conduct, affairs or property; a defence exists if the bankrupt proves lack of intent to conceal or defeat the law.
Section 292. Offence in relation to documents, etc. Section 292(1)(a) conceals, destroys, mutilates or falsifies, or is a party to the concealment, destruction, mutilation or falsification of, any document affecting, or relating to, the bankrupt's conduct, affairs or property; Section 292(1)(b) makes, or is a party to the making of, any false entry in any document affecting, or relating to, the bankrupt's conduct, affairs or property; Section 292(1)(c) fraudulently parts with, alters, or makes any omission in, or is a party to fraudulently parting with, altering, or making an omission in, any document affecting, or relating to, the bankrupt's conduct, affairs or property; or Section 292(1)(d) prevents the production of any document relating to the bankrupt's conduct, affairs or property to any person to whom the bankrupt has an obligation under this Part to produce the document. Section 292(2) In proceedings for an offence under subsection (1)(a), (b) or (d), it is a defence to prove that, at the relevant time, the bankrupt had no intention to conceal the state of the bankrupt's affairs or to defeat the law. - 293 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 293. Offence in relation to fictitious losses or expenses
A bankrupt commits an offence if they attempt to account for any part of their property by means of fictitious losses or expenses within twelve months before the bankruptcy application or at any time after the application is made.
Section 293. Offence in relation to fictitious losses or expenses Section A bankrupt commits an offence if, during the twelve months immediately preceding the making of the application to the Court for a bankruptcy order in respect of the bankrupt, or at any time after the application was made, the bankrupt attempts to account for any part of the bankrupt’s property by means of fictitious losses or expenses. - 294 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 294. Offences in relation to credit, etc
A bankrupt commits offences for obtaining property on credit and not paying, making false representations or fraudulent acts (including false statements of finances or false pretence of business), and for pawning, mortgaging or disposing of unpaid-for property outside the ordinary course of business within three years before or any time after a bankruptcy application; it is a defence to show lack of intent to defraud.
Section 294. Offences in relation to credit, etc Section 294(1)(a) the bankrupt obtains property on credit and has not paid for the property; and Section 294(1)(b) by making a false representation or doing some other fraudulent act; Section 294(1)(b)(i) by making a false representation or doing some other fraudulent act; Section 294(1)(b)(ii) by falsely stating the position of the bankrupt's financial affairs; or Section 294(1)(b)(iii) under the false pretence of carrying on business and dealing in the ordinary course of trade. Section 294(2) A bankrupt commits an offence if, during the three years immediately preceding the making of the application to the Court for a bankruptcy order in respect of the bankrupt, or at any time after the application was made, the bankrupt (otherwise than in the ordinary course of business) pawns, mortgages, creates a security right or disposes of any property that the bankrupt has obtained but for which the bankrupt has not made payment. Section 294(3) In proceedings for an offence under subsection (1) or (2), it is a defence to prove that, at the relevant time, the bankrupt had no intention to defraud. [Act No. 13 of 2017 , Sch.] - 295 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 295. Offences in relation to obtaining consent of creditors
Section 295 concerns offences in relation to obtaining consent of creditors and making a false representation.
Section 295. Offences in relation to obtaining consent of creditors Section makes a false representation; or - 296 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 296. Offence for bankrupt to leave Kenya without consent
Bankrupts must not leave, attempt to leave, or prepare to leave Kenya with property (including attempts) that should be distributed to creditors worth one hundred thousand shillings or more; lack of intent to defraud is a defence.
Section 296. Offence for bankrupt to leave Kenya without consent Section 296(1)(a) leaves Kenya (either temporarily or permanently), together with any part of any property to the value of one hundred thousand shillings or more that, by law, ought to be distributed among the bankrupt's creditors; Section 296(1)(b) attempts to leave Kenya with any part of that property; or Section 296(1)(c) prepares to leave Kenya (either temporarily or permanently) while being in possession of any part of that property. Section 296(2) In proceedings for an offence under subsection (1), it is a defence to prove that, at the relevant time, the bankrupt had no intention to defraud. - 297 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 297. General penalties for bankruptcy offences
A bankrupt found guilty of an offence under sections 289–296 may be punished on conviction by a fine up to two million shillings, by imprisonment up to five years, or by both.
Section 297. General penalties for bankruptcy offences Section A bankrupt who is found guilty of an offence under a provision of sections 289 to 296 is liable on conviction to a fine not exceeding two million shillings or to imprisonment for a term not exceeding five years, or to both. - 298 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 298. Failure to keep and preserve proper record of transactions
A bankrupt who fails to keep and preserve proper records of transactions (where they could reasonably be expected to have done so) commits an offence.
Section 298. Failure to keep and preserve proper record of transactions Section 298(1)(a) the bankrupt had failed to record of the bankrupt's period; and keep and preserve a transactions for the Section 298(1)(b) because of the nature of the bankrupt's business or occupation, the bankrupt might reasonably be expected to have kept such a record. Section 298(2) A bankrupt who is found guilty of an offence under subsection (1) is liable on conviction to a fine not exceeding one million shillings or to imprisonment for a term not exceeding twelve months, or to both. - 299 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 299. Failure to keep proper records with intent to conceal
A bankrupt who intentionally conceals the true state of their affairs by failing to keep proper records commits an offence.
Section 299. Failure to keep proper records with intent to conceal Section 299(1) A bankrupt commits an offence if, with intent to conceal the true state of the bankrupt's affairs, the bankrupt has failed to keep and preserve a proper record of the bankrupt' s transactions. Section 299(2) A bankrupt who is found guilty of an offence under subsection (1) is liable on conviction to a fine not exceeding one million shillings or to imprisonment for a term not exceeding two years, or to both. - 30 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 30. Court may stay application while underlying debt is determined
The Court may stay a bankruptcy application while questions about the underlying debt are decided, and may (as a condition of staying) require the debtor to give security to the creditor for any debt and costs that may be established.
Section 30. Court may stay application while underlying debt is determined Section 30(1)(a) does not owe a specified debt to the creditor; or Section 30(1)(b) owes a specified debt to the creditor, but the debt is less than the prescribed bankruptcy level. Section 30(2)(a) whether the debt is owed; or Section 30(2)(b) how much of the debt is owed, can be resolved at trial. Section 30(3) As a condition of staying the application, the Court may require the debtor to give security to the creditor for any debt that may be established as owing by the debtor to the creditor, and for the cost of establishing the debt. - 300 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 300. When bankrupt presumed not to have kept or preserved proper records
For purposes of sections 298 and 299, a bankrupt is presumed (absent contrary evidence) not to have kept proper records of transactions if, while engaged in trade or business, the bankrupt has not kept the required records.
Section 300. When bankrupt presumed not to have kept or preserved proper records Section 300(1) For the purposes of sections 298 and 299 , a bankrupt is, in the absence of evidence to the contrary, presumed not to have kept a proper record of the bankrupt's transactions if, being engaged in a trade or business, the bankrupt has not kept the required records. Section 300(2)(a) a record containing entries from day to day in sufficient detail of all cash received and cash paid; Section 300(2)(b) a record of all goods sold and purchased; and Section 300(2)(b)(i) a record of all goods sold and purchased; and Section 300(2)(b)(ii) detailed stock sheets of annual and other stock takings showing the quantity and the valuation made of each item of stock on hand; and Section 300(2)(c) if the bankrupt's trade or business has involved supplying services, details of those services. Section 300(3)(a) the records listed in subsection (2) (if applicable); Section 300(3)(b) a record of all goods purchased in the course of the bankrupt's business (with the original invoices); and Section 300(3)(c) a daily record of all goods sold on credit. - 301 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 301. Offence by bankrupt in relation to management of companies
A bankrupt must not act as a director or partner and must comply with section 152; breaching these is an offence.
Section 301. Offence by bankrupt in relation to management of companies Section 301(1)(a) acts or purports to act as a director of a company or as a partner of a firm or limited liability partnership; or Section 301(1)(b) fails without reasonable excuse to comply with section 152, Section 301(2) A person who is found guilty of an offence under subsection (1) is liable on conviction to a fine not exceeding one million shillings or to imprisonment for a term not exceeding twelve months, or to both. - 302 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 302. Other bankruptcy offences
Section 302 makes various acts by a bankrupt offences, including making materially false statements to the bankruptcy trustee or Official Receiver; failing to disclose lodged false proofs; giving undue preference within two years before adjudication while insolvent; obtaining credit of one hundred thousand shillings or more; and incurring liabilities of one hundred thousand shillings or more to obtain credit for another.
Section 302. Other bankruptcy offences Section 302(1)(a) in the course of the administration of the bankrupt's affairs, makes to the bankruptcy trustee or the Official Receiver (if not the bankruptcy trustee) a statement that the bankrupt knows or has reason to know was false or misleading in a material respect; Section 302(1)(b) after becoming aware that any person has lodged a false proof in the bankruptcy, fails to disclose that fact immediately to the bankruptcy trustee or to the Official Receiver (if not the bankruptcy trustee); Section 302(1)(c) has, during the two years immediately preceding the date on which the bankrupt was adjudged bankrupt and while the bankrupt was insolvent, given any undue preference to any of the bankrupt's creditors with intent to defraud any other of the bankrupt's creditors; or Section 302(1)(d) obtains credit of one hundred thousand shillings or more; or Section 302(1)(d)(i) obtains credit of one hundred thousand shillings or more; or Section 302(1)(d)(ii) incurs a liability to any person of one hundred thousand shillings or more for the purpose of obtaining credit for another person. Section 302(2) In proceedings for an offence under subsection (1)(d)(ii), it is a defence to prove that, before obtaining the relevant credit, the bankrupt informed the credit provider that the bankrupt was an undischarged bankrupt. Section 302(3) In proceedings for an offence under subsection (1)(d)(ii), it is a defence to prove that, before incurring the relevant liability, the credit provider was informed that the person incurring the liability was an undischarged bankrupt. Section 302(4) A person who is found guilty of an offence under subsection (1) is liable on conviction a fine not exceeding one million shillings or to imprisonment for a term not exceeding twelve months, or to both. - 31 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 31. Court may allow one creditor to be substituted for another
The Court may permit one creditor to be substituted for another.
Section 31. Court may allow one creditor to be substituted for another - 32 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 32. When debtor may make application for bankruptcy order
A debtor may apply to the Court for a bankruptcy order only if the debtor cannot pay their debts; the Court may reject the debtor's financial statement if it is incorrect or incomplete and may decline to hear the application if the publication requirements in subsection (4) are not satisfied.
Section 32. When debtor may make application for bankruptcy order Section 32(1) A debtor may make an application to the Court for an order adjudging the debtor bankrupt only on the grounds that the debtor is unable to pay the debtor's debts. Section 32(2)(a) such particulars of the debtor's creditors and of the debtor's debts and other liabilities and assets as may be prescribed by the insolvency regulations; and Section 32(2)(b) such other information as may be so prescribed. Section 32(3) The Court may reject a statement of the debtor's financial position if of the opinion that it is incorrect or incomplete. Section 32(4)(a) a newspaper circulating within the region in which the debtor ordinarily resides; and Section 32(4)(b) in such other publications (if any) as may prescribed by the insolvency regulations for purposes of this section. Section 32(5) The Court may decline to hear the application if subsection (4) has not been complied with to its satisfaction. - 33 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 33. Appointment of insolvency practitioner by the Court
The Court may appoint an authorised insolvency practitioner to prepare a report under section 34 and, subject to Division 1 of Part IV, to supervise a voluntary arrangement; appointment is conditioned on the tests in subsections (1)(a)–(d).
Section 33. Appointment of insolvency practitioner by the Court Section 33(1)(a) that if a bankruptcy order were made the total amount of the applicant's debts, so far as unsecured, would be less than the small bankruptcies level; Section 33(1)(b) that if a bankruptcy order were made, the value of the bankrupt's estate would be equal to or more than the prescribed minimum value; Section 33(1)(c) neither been adjudged bankrupt; nor Section 33(1)(c)(i) neither been adjudged bankrupt; nor Section 33(1)(c)(ii) made a composition with the debtor's creditors in satisfaction of the debtor's debts or a scheme of arrangement of the debtor's financial affairs; and Section 33(1)(d) that it would be appropriate to appoint an authorised insolvency practitioner to prepare a report under section 34 . Section 33(2)(a) to prepare a report under section 34 ; or Section 33(2)(b) subject to Division 1 of Part IV, to act in relation to any voluntary arrangement to which the report relates as supervisor for the purpose of supervising its implementation. Section 33(3)(a) "prescribed minimum value" means the amount for the time being specified in the insolvency regulations for the purposes of this section; Section 33(3)(b) "small bankruptcies level" means the amount for the time being so specified for the purposes of this section. - 34 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 34. Action on report of insolvency practitioner
The insolvency practitioner must inquire into the debtor's financial affairs, submit a report to the Court within any period the Court specifies stating whether the debtor is willing to propose a voluntary arrangement, may propose convening a creditors' meeting and (unless the Court otherwise directs) must convene it if proposed; the practitioner may make an interim order under section 306 to facilitate consideration of the proposal or, if inappropriate, make a bankruptcy order.
Section 34. Action on report of insolvency practitioner Section 34(1)(a) inquire into the debtor's financial affairs; and Section 34(1)(b) within such period as the Court may specify, submit a report to the Court stating whether the debtor is willing to make a proposal for a voluntary arrangement in accordance with Division 1 of Part IV. Section 34(2)(a) whether, in his or her opinion, a meeting of the debtor's creditors should be convened to consider the proposal; and Section 34(2)(b) if, in that practitioner's opinion such a meeting should be convened—the date on which, and time and place at which, the meeting should be held. Section 34(3)(a) without any application, make an interim order under section 306, if it considers it appropriate to do so for the purposes of facilitating the consideration and implementation of the debtor's proposal; or Section 34(3)(b) if it considers it would be inappropriate to make such an order—make a bankruptcy order in respect of the applicant. Section 34(4) An interim order made in accordance with subsection (3)(a) ceases to have effect at the end of such period as the Court may specify for the purpose of enabling the debtor's proposal to be considered by the debtor's creditors in accordance with the applicable provisions of Division I of Part IV. Section 34(5) If the insolvency practitioner has proposed in the report that a meeting of the debtor's creditors should be convened, the insolvency practitioner shall, unless the Court otherwise directs, convene such a meeting for the time, date and place proposed in the report. Section 34(6) Such a meeting is to be taken to have been convened under section 309 in which case subsections (2) and (3) of that section and sections 309 to 314 apply to the meeting. - 35 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 35. Joint application can be made by two or more debtors
Two or more debtors may file a joint application.
Section 35. Joint application can be made by two or more debtors - 36 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 36. Appointment of interim trustee of debtor's property on application of creditor
After a creditor applies, a creditor may ask the Court to appoint an authorised insolvency practitioner as interim trustee over all or part of the debtor’s property; the Court may make that order before a bankruptcy order is made and may authorise the trustee to take control of property, sell perishable or rapidly devaluing property, and control affairs or property as directed, subject to limits when controlling the debtor's business; the Official Receiver and authorised insolvency practitioners are suitably qualified; “debtor's business” includes any business in which the debtor has a financial interest.
Section 36. Appointment of interim trustee of debtor's property on application of creditor Section 36(1) After a creditor's application has been made, the creditor or any other creditor of the debtor may apply to the Court for an order for the appointment of an authorised insolvency practitioner as interim trustee in respect of all or a specified part of the debtor’s property. Section 36(2) The Court may make such an order at any time before a bankruptcy order is made in respect of the debtor. Section 36(3)(a) take control of any property of the debtor; Section 36(3)(b) sell any perishable property or property of the debtor that is likely to fall rapidly in value; Section 36(3)(c) control the affairs or property of the debtor as directed by the Court. Section 36(4) An order authorising the trustee to control a debtor's business may not extend beyond what, in the Court's opinion, is necessary to conserve the debtor's property. Section 36(5) The Official Receiver and any authorised insolvency practitioner are suitably qualified persons for the purpose of subsection (1). Section 36(6) In this section, "debtor's business" includes any business in which the debtor has a financial interest. - 37 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 37. Additional orders after appointment of interim trustee
The Court may make additional orders under section 36 after an interim trustee is appointed, on an application under subsection (2).
Section 37. Additional orders after appointment of interim trustee Section 37(1) After the appointment of an interim trustee under section 36 , the Court may, on an application made under subsection (2), make additional orders under that section. Section 37(2) An application for the purpose of subsection (1) made by a creditor or the interim trustee or, with the approval of the Court, by any other person. - 38 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 38. Notice of appointment of interim trustee to be published
The appointment of an interim trustee must be published as described in subsection (1), and the appointment does not take effect until subsection (1) has been complied with.
Section 38. Notice of appointment of interim trustee to be published Section 38(1)(a) in one or more newspapers circulating in Kenya; and Section 38(1)(b) in such other publication as may be prescribed by the insolvency regulations for the purposes of this section. Section 38(2) The appointment of the interim trustee does not take effect until subsection (1) has been complied with. - 39 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 39. Execution process not to be issued after notice of appointment of trustee is published
Creditors must not issue or continue execution processes after publication of notice appointing an interim trustee; they may apply to the Court, which may order otherwise; actions contrary to (1) or (2) are void.
Section 39. Execution process not to be issued after notice of appointment of trustee is published Section 39(1) A creditor of the debtor may not issue an execution process under section 23 after notice of the appointment of the interim trustee has been published. Section 39(2) A creditor may not continue an execution process already issued before notice of the appointment of the interim trustee has been published. Section 39(3) A creditor or any other interested person may apply to the Court for an order allowing the issue or continuation of an execution process, and the Court may make an order on such terms as it considers appropriate. Section 39(4) Any action taken in contravention of subsection (1) or (2) is void. - 40 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 40. Effect of staying execution
Section 40. Effect of staying execution
Section 40. Effect of staying execution - 41 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 41. Bankruptcy commences on making of bankruptcy order
Bankruptcy begins at the date and time when a bankruptcy order is made in respect of the debtor.
Section 41. Bankruptcy commences on making of bankruptcy order Section A bankruptcy under this Act commences on the date and at the time when a bankruptcy order is made in respect of the debtor. - 42 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 42. Date and time of bankruptcy order to be recorded
When a bankruptcy order is made the Court must record the date and time; if the debtor is adjudged bankrupt on the debtor's own application, the Official Receiver must record on that application the date and time when the debtor made the application.
Section 42. Date and time of bankruptcy order to be recorded Section 42(1) On making a bankruptcy order, the Court shall record the date and time when the order was made. Section 42(2) If the debtor is adjudged bankrupt on the application of the debtor, the Official Receiver shall record on the application the date and time when the debtor made the application. - 43 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 43. Registrar of the Court to notify trustee of bankruptcy order
The Registrar of the Court must forward a copy of the bankruptcy order to the Official Receiver as soon as practicable after the Court makes the order.
Section 43. Registrar of the Court to notify trustee of bankruptcy order Section As soon as practicable after the Court has made a bankruptcy order in respect of a debtor, the Registrar of the Court shall forward a copy of the order to the Official Receiver. - 44 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 44. Official Receiver to nominate bankruptcy trustee
The Official Receiver must, as soon as practicable after receiving a copy of a bankruptcy order, nominate a qualified person to be bankruptcy trustee for the debtor's property.
Section 44. Official Receiver to nominate bankruptcy trustee Section 44(1) As soon as practicable after receiving a copy of a bankruptcy order, the Official Receiver shall nominate a qualified person to be bankruptcy trustee in respect of the debtor's property. Section 44(2) In this subsection (1), "qualified person" means the Official Receiver or an authorised insolvency practitioner. - 45 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 45. Presumption that act was done, or transaction was entered into or made, after bankruptcy
If it is doubtful whether an act or transaction occurred before or after bankruptcy, it is presumed to have been done after the bankruptcy until the contrary is proved.
Section 45. Presumption that act was done, or transaction was entered into or made, after bankruptcy Section If a doubt arises as to whether an act was done, or a transaction entered into or made, before or after the time when a bankruptcy commenced, it is to be presumed, until the contrary is proved, that the act was done, or the transaction was entered into or made, after that time. - 46 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 46. Bankruptcy order to be binding on all persons
A bankruptcy order becomes binding on all persons when the time for appealing it expires.
Section 46. Bankruptcy order to be binding on all persons Section on the expiry of the time within which an appeal may be lodged against the order; or - 47 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 47. Official Receiver to maintain public register of undischarged and discharged bankrupts
The Official Receiver must establish and maintain a public register of undischarged and discharged bankrupts and must maintain that register in accordance with Division 2 of Part XIl.
Section 47. Official Receiver to maintain public register of undischarged and discharged bankrupts Section 47(1) The Official Receiver shall establish and maintain a public register of undischarged and discharged bankrupts. Section 47(2) The Official Receiver shall maintain the register in accordance with Division 2 of Part XIl. - 48 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 48. What happens or is to happen on and after bankruptcy commences
When bankruptcy commences, proceedings to recover the bankrupt's debts are stayed, the bankrupt's property vests in the Official Receiver, the Court may allow certain pre‑existing proceedings to continue on application, and the Court may order the Official Receiver not to advertise the bankruptcy order in specified circumstances.
Section 48. What happens or is to happen on and after bankruptcy commences Section 48(1)(a) all proceedings to recover the bankrupt's debts are stayed; and Section 48(1)(b) the property of the bankrupt (whether in or outside Kenya), and the powers that the bankrupt could have exercised in respect of that property for the bankrupt's own benefit, vest in the Official Receiver. Section 48(2) Despite subsection (1), the Court may, on the application by a creditor or other person interested in the bankruptcy, allow proceedings that had already begun before the bankruptcy commenced to continue on such terms as the Court considers appropriate. Section 48(3)(a) once in the Gazette ; and Section 48(3)(a)(i) once in the Gazette ; and Section 48(3)(a)(ii) once in a newspaper widely circulating in the area in which the bankrupt resides; or Section 48(3)(b) if the Court directs that the order be advertised in some other publication, publish such a notice in that other publication. Section 48(4) If the bankrupt has appealed against the order or has applied for its annulment, the Court may order the Official Receiver not to advertise the bankruptcy order, but only if it is satisfied that there are compelling reasons for doing so. Section 48(5) Subsection (1) is subject to section 106 . - 49 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 49. Official Receiver to serve notice on bankrupt requiring the bankrupt to lodge statement of the bankrupt's financial position
The Official Receiver must serve a notice on a bankrupt requiring the bankrupt to lodge a statement of their financial position; the notice must be served at the bankrupt's address given in the bankruptcy application or the bankrupt's last known address, and the notice specifies a deadline for lodging the statement.
Section 49. Official Receiver to serve notice on bankrupt requiring the bankrupt to lodge statement of the bankrupt's financial position Section 49(1)(a) stating that a bankruptcy order has been made in respect of the bankrupt; Section 49(1)(b) requiring the bankrupt to lodge with the Official Receiver a statement setting out the bankrupt's financial position; and Section 49(1)(c) specifying a deadline for lodging the statement with the Official Receiver. Section 49(2) The Official Receiver shall serve the notice at the address of the bankrupt given in the bankruptcy application or at the bankrupt's address last known to the Official Receiver. Section 49(3) This section does not apply if the bankrupt has already lodged a statement under section 32 . - 50 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 50. Bankrupt to lodge statement of financial position with bankruptcy trustee
A bankrupt must lodge a statement of financial position with the bankruptcy trustee listing assets, debts, creditors and securities; they may later lodge amendments; failure is an offence with fines or imprisonment.
Section 50. Bankrupt to lodge statement of financial position with bankruptcy trustee Section 50(1)(a) particulars of the bankrupt's assets; Section 50(1)(b) the bankrupt's debts and liabilities; Section 50(1)(c) the names, residences and occupations of the bankrupt's creditors; Section 50(1)(d) the securities held by the bankrupt's creditors; Section 50(1)(e) the dates when the securities were given; and Section 50(1)(f) such other information as may be prescribed by the insolvency regulations or as the bankruptcy trustee may reasonably require. Section 50(2) At any time after lodging with the bankruptcy trustee a statement of the bankrupt's financial position, the bankrupt may lodge additional or amended statements or answers with the bankruptcy trustee. Section 50(3) A bankrupt who fails to comply with a requirement of subsection (1) commits an offence and on conviction is liable to a fine not exceeding one million shillings or to imprisonment for a term not exceeding two years, or to both. Section 50(4) If, after being convicted of an offence under subsection (2), a bankrupt, without reasonable excuse, continues to fail to comply with the relevant requirement, the bankrupt commits a further offence on each day during which the failure continues and on conviction is liable to a fine not exceeding one hundred thousand shillings for each such offence. - 51 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 51. Creditors entitled to inspect and take copies of statement of bankrupt's financial position
Creditors are entitled to inspect and to take copies of the bankrupt's statement of financial position; a person who falsely claims to be a creditor is in contempt of Court.
Section 51. Creditors entitled to inspect and take copies of statement of bankrupt's financial position Section 51(1)(a) to inspect the statement of the bankrupt's financial position; and Section 51(1)(b) to take a copy it or of part of it. Section 51(2) A person who falsely claims to be a creditor is in contempt of the Court. - 52 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 52. Official Receiver to convene first meeting of creditors
The Official Receiver must convene the first meeting of the bankrupt's creditors within the prescribed period, subject to subsection (5), unless the Official Receiver decides under section 53 not to hold it.
Section 52. Official Receiver to convene first meeting of creditors Section 52(1) The Official Receiver shall, subject to subsection (5), convene the first meeting of the bankrupt's creditors within the prescribed period, unless the Official Receiver decides, in accordance with section 53 , not to hold the meeting. Section 52(2)(a) the bankrupt; Section 52(2)(b) each creditor named in the statement of the bankrupt's financial position; and Section 52(2)(c) any other creditors known to the bankruptcy trustee, Section 52(3)(a) in one or more newspapers circulating generally in Kenya; and Section 52(3)(b) in such other publications as the Official Receiver considers appropriate. Section 52(4)(a) thirty days after the statement of the bankrupt's financial position is lodged Receiver; or Section 52(4)(b) if the bankrupt is late in lodging the statement or fails to lodge a statement at all, thirty days after the date on which the bankruptcy order was made. Section 52(5) The Official Receiver may delay convening the first meeting of creditors for a period not exceeding fourteen days if the Official Receiver considers that there are special circumstances justifying the delay. - 53 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 53. Circumstances in which Official Receiver may decide not to convene first meeting of creditors
The Official Receiver has the power to decide not to convene the first creditors' meeting if the Receiver has sent the required notice and has not, within fourteen days after sending it, received a request from a creditor; the notice should include the bankrupt's assets and liabilities, the likely result of the bankruptcy, and other relevant matters.
Section 53. Circumstances in which Official Receiver may decide not to convene first meeting of creditors Section 53(1)(a) has sent to each creditor named in the statement of the bankrupt's financial position, and to any other creditor known to the Official Receiver, a notice that complies with section 54 ; and Section 53(1)(b) has not, within fourteen days after sending the notice, received from a creditor a request to convene such a meeting. Section 53(2)(a) the bankrupt's assets and liabilities; Section 53(2)(b) the likely result of the bankruptcy; and Section 53(2)(c) any other relevant matters. Section 53(3)(a) the Official Receiver's view that a first creditors' meeting need not be convened; Section 53(3)(b) the reasons for not convening the meeting; and Section 53(3)(c) that the Official Receiver will convene a meeting only if the Official Receiver receives from a creditor, within fourteen days after sending the notice, a request to convene such a meeting. - 54 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 54. Documents to be sent with notice of meeting
Lists documents referred to in subsection (1) and states exceptions and effect of failure to send or receive them.
Section 54. Documents to be sent with notice of meeting Section 54(1)(a) a summary of the bankrupt's statement of assets and liabilities; Section 54(1)(b) extracts from, or a summary of, the bankrupt's explanation of the causes of the bankruptcy; and Section 54(1)(c) any comments on the bankruptcy that the Official Receiver chooses to make. Section 54(2) Subsection (1) does not apply if the Official Receiver has not received the statement of the bankrupt's financial position when the notice is sent. Section 54(3) A failure in sending or receiving the documents in subsection (1) does not affect the validity of the proceedings at the meeting. - 55 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 55. Power of creditors to requisition meeting
Creditors may request the Official Receiver to convene a first meeting of creditors if the Official Receiver has not convened or has decided not to convene one; the Official Receiver must convene a meeting as soon as practicable after such a request if it appears to have concurrence of not less than one-quarter in value of the bankrupt's creditors.
Section 55. Power of creditors to requisition meeting Section 55(1) If, in the case of a bankruptcy, the Official Receiver has not yet convened a first meeting of creditors, or has decided not to convene such a meeting, any creditor of the bankrupt may request the Official Receiver to convene such a meeting. Section 55(2) As soon as practicable after receiving a request under subsection (1), the Official Receiver shall convene a first meeting of creditors if the request appears to the Official Receiver to be made with the concurrence of not less than one-quarter in value of the bankrupt's creditors (including the creditor making the request). - 56 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 56. Execution process not to be begin or continue after bankruptcy order advertised
After a bankruptcy order is advertised or notice given by the Official Receiver, a creditor must not seize or sell the bankrupt's property by distress for rent; if distress had already begun the creditor may continue only with the Court's approval and subject to conditions the Court specifies.
Section 56. Execution process not to be begin or continue after bankruptcy order advertised Section 56(1)(a) has published an advertisement notifying the bankruptcy; or Section 56(1)(b) has given notice of the bankruptcy to the creditor. Section 56(2) After the notice of the bankruptcy notice has been advertised, or after being given notice of the bankruptcy by the Official Receiver, a creditor may not seize or sell any property by means of distress for rent owed by the bankrupt. Section 56(3) If the distress procedure has already begun, such a creditor may continue with the procedure only with the approval of the Court and subject to such conditions as the Court may specify. - 57 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 57. Effect of bankrupt's death after bankruptcy order
If a person adjudged bankrupt dies after the bankruptcy order, the bankruptcy continues as if the person were still alive.
Section 57. Effect of bankrupt's death after bankruptcy order Section If a bankrupt dies after being adjudged bankrupt, the bankruptcy continues in all respects as if the bankrupt were still alive. - 58 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 58. Creditors' role at creditors' meetings
Describes creditors' role at creditors' meetings.
Section 58. Creditors' role at creditors' meetings - 59 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 59. Power to appoint bankruptcy trustee
Section 59 specifies who has the power to appoint a bankruptcy trustee (a creditors' meeting, the Official Receiver under sections 60 or 61, or the Court under section 62) and sets conditions for appointments including that an appointee must accept.
Section 59. Power to appoint bankruptcy trustee Section 59(1)(a) except as provided by paragraph (b) or (c), by a creditors' meeting; Section 59(1)(b) under section 60 or 61 , by the Official Receiver; Section 59(1)(c) under section 62 , by the Court. Section 59(2) A power to appoint a person as bankruptcy trustee includes power to appoint two or more persons as joint bankruptcy trustees, but such an appointment is not effective unless it makes provision for the circumstances in which the trustees are required to act together and the circumstances in which one or more of them may act on behalf of the others. Section 59(3) The appointment of a person as bankruptcy trustee takes effect only if the person accepts the appointment. Section 59(4) The appointment of a person as a bankruptcy trustee takes effect at the time specified in the document by which the person is appointed. Section 59(5) This section does not affect the provisions of this Part under which the Official Receiver is, in specified circumstances, to be, or required to act as, the bankruptcy trustee in respect of a bankrupt's estate. - 60 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 60. Consequences of failure of creditors' meeting to appoint bankruptcy trustee
If a creditors' meeting under section 52 or 55 is held and no bankruptcy trustee is appointed, the Official Receiver must decide if an appointment is needed; if so the Official Receiver must appoint one; if not the Official Receiver must notify the Court and on giving that notice becomes bankruptcy trustee for the bankrupt's estate.
Section 60. Consequences of failure of creditors' meeting to appoint bankruptcy trustee Section 60(1) If a meeting convened under section 52 or 55 is held but no one is appointed as bankruptcy trustee, the Official Receiver shall decide whether or not there is a need to make such an appointment. Section 60(2) If the Official Receiver decides there is a need to make such an appointment, the Official Receiver shall make an appointment accordingly. Section 60(3) If the Official Receiver decides that there is no need to make such an appointment, the Official Receiver shall notify the decision to the Court. Section 60(4) On giving notice of the decision to the Court in accordance with subsection (3), the Official Receiver becomes bankruptcy trustee in respect of the bankrupt's estate. - 61 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 61. Power of Official Receiver acting as bankruptcy trustee to appoint another person to act instead
The Official Receiver may appoint another qualified person as bankruptcy trustee, and must notify the Court immediately after doing so.
Section 61. Power of Official Receiver acting as bankruptcy trustee to appoint another person to act instead Section 61(1) The Official Receiver may, at any time while acting as bankruptcy trustee in respect of a bankrupt's estate under a provision of this Division (other than section 62 ), appoint another qualified person to act as the bankruptcy trustee instead. Section 61(2) Immediately after making such an appointment, the Official Receiver shall notify the appointment to the Court. Section 61(3)(a) give notice of the appointment to each of the bankrupt's creditors; or Section 61(3)(b) if, on application made to the Court, the Court so allows, advertise the appointment in accordance with the directions of the Court. Section 61(4)(a) whether the person proposes to convene a general meeting of the bankrupt's creditors for the purpose of establishing a creditor's committee under section 100; and Section 61(4)(b) if the person does not propose to convene such a meeting, that the creditors are entitled under this Division to require one to be convened. - 62 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 62. Special case in which the Court may appoint bankruptcy trustee
When a bankruptcy order is made and there is a supervisor of an approved summary instalment order, the Court may appoint that supervisor as bankruptcy trustee; if such appointment is made the Official Receiver is not required to decide under section 60(1) whether to convene a creditors' meeting; section 61(4) and (5) apply to a trustee appointed under this section.
Section 62. Special case in which the Court may appoint bankruptcy trustee Section 62(1) If a bankruptcy order is made when there is a supervisor of a summary instalment order approved in relation to the bankrupt under Division 2 of Part IV, the Court may, if it considers it appropriate to do so on making the order, appoint the supervisor of the order as bankruptcy trustee in respect of the bankrupt's estate. Section 62(2) If an appointment is made under subsection (1), the Official Receiver is not required to decide under section 60(1) whether or not to convene a creditors' meeting. Section 62(3) Section 61 (4) and (5) apply to a bankruptcy trustee appointed under this section. - 63 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 63. Powers of bankruptcy trustee
Section 63. Powers of bankruptcy trustee Section 63(1)(a) with the approval of the creditor's committee, exercise of any of the powers specified in Part 1 of the First Schedule; and Section 63(1)(b) without that approval, exercise any of
Section 63. Powers of bankruptcy trustee Section 63(1)(a) with the approval of the creditor's committee, exercise of any of the powers specified in Part 1 of the First Schedule; and Section 63(1)(b) without that approval, exercise any of the general powers specified in Part 2 of that Schedule. Section 63(2)(a) to superintend the management of the bankrupt's estate or any part of it; Section 63(2)(b) to carry on the bankrupt's business (if any) for the benefit of the bankrupt's creditors; or Section 63(2)(c) in any other respect to assist in administering the estate in such manner and on such terms as the bankruptcy trustee may direct. Section 63(3) An approval given for the purposes of subsection (1)(a) or (2) is required to be a specific one and to relate to a particular exercise of the relevant power. Section 63(4) A person dealing with the bankruptcy trustee in good faith and for value is not required to ascertain whether an approval required by subsection (1)(a) or (2) has been given. Section 63(5) If a bankruptcy trustee has done anything without the approval required by subsection (1)(a) or (2), the Court or the creditor's committee (if any) may, for the purpose of enabling the bankruptcy trustee to meet the bankruptcy trustee's expenses out of the bankrupt's estate, ratify what that trustee has done. Section 63(6) Part 3 of the First Schedule has effect with respect to the things that the bankruptcy trustee is able to do for the purposes of, or in connection with, the exercise of any of the bankruptcy trustee's powers under this Act. Section 63(7)(a) disposes of property comprised in the bankrupt's estate to an associate of the bankrupt; or Section 63(7)(b) employs an advocate, Section 63(8) A bankruptcy trustee may use his or her discretion in administering a bankrupt's property, but, in doing so, is required to have regard to the resolutions passed by the creditors at creditors' meetings. - 64 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 64. Bankruptcy trustee not to sell bankrupt's property before first creditors' meeting
The bankruptcy trustee must not sell a bankrupt's property before the first creditors' meeting, except in limited subsection (1) cases; and must ensure proceeds from any such sale are invested in accordance with section 66.
Section 64. Bankruptcy trustee not to sell bankrupt's property before first creditors' meeting Section 64(1)(a) it is perishable or is likely to rapidly diminish in value; Section 64(1)(b) in that trustee's opinion, its sale could be prejudiced by delay; or Section 64(1)(c) expenses would, in that trustee's opinion, be incurred by the delay and, before sale, the bankruptcy trustee has consulted the creditors. Section 64(2) The bankruptcy trustee shall ensure that the proceeds of the sale of a bankrupt's property in accordance with subsection (1) are in every case invested in accordance with section 66. - 65 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 65. Title of purchaser from bankruptcy trustee
A purchaser's title to property bought from a bankruptcy trustee under a trustee's power of sale may not be questioned except for fraud.
Section 65. Title of purchaser from bankruptcy trustee Section The title of a purchaser of the bankrupt's property from a bankruptcy trustee under a document that is made in the exercise of the bankruptcy trustee's power of sale in the First Schedule may not be questioned except on account of fraud. - 66 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 66. Bankruptcy trustee to bank money and power to invest surplus
Bankruptcy trustees must open and maintain a bank account for each estate and pay into it money they receive; they may invest surplus estate money as prescribed, and must credit any investment income to the estate.
Section 66. Bankruptcy trustee to bank money and power to invest surplus Section 66(1) A bankruptcy trustee shall establish and maintain a bank account in respect of each bankrupt estate administered by that trustee and shall pay into the relevant account all money that that trustee receives in that capacity. Section 66(2) If money held by a bankruptcy trustee in respect of a bankrupt's estate is not immediately required to be paid in connection with the administration of the estate, the bankruptcy trustee may invest the money in an investment of a kind prescribed by the insolvency regulations for the purposes of this section. Section 66(3) A bankruptcy trustee who invests money in accordance with subsection (2) shall credit to the bankrupt's estate the interest, dividends or other money that accrues in respect of the investment. - 67 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 67. Bankruptcy trustee may assign right to sue under this Act
A bankruptcy trustee may assign a right to sue conferred by this Act if the Court has first approved it.
Section 67. Bankruptcy trustee may assign right to sue under this Act Section 67(1) A bankruptcy trustee may, if the Court has first approved it, assign a right to sue that is conferred on the bankruptcy trustee by this Act. Section 67(2)(a) be made only by the bankruptcy trustee or the person to whom it is proposed to assign the right to sue; and Section 67(2)(b) be opposed only by a person who is a defendant to the bankruptcy trustee's action, if already begun, or a proposed defendant. - 68 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 68. Proceedings by bankruptcy trustee when bankrupt is partner in business partnership
Court may allow the bankruptcy trustee to bring proceedings in the names of the trustee and the bankrupt's partner; the trustee must serve notice on the partner, who may oppose; the partner is to be paid or indemnified, and any release by the partner of the relevant debt is void.
Section 68. Proceedings by bankruptcy trustee when bankrupt is partner in business partnership Section 68(1) If a member of a business partnership is adjudged bankrupt, the Court may authorise the bankruptcy trustee to bring proceedings in the names of the bankruptcy trustee and the bankrupt's partner. Section 68(2) The bankruptcy trustee shall serve notice of the application on the partner for authority to bring the proceedings, and the partner may oppose the application. Section 68(3)(a) the partner is to be paid the partner's proper share of the proceeds of the proceedings; or Section 68(3)(b) the partner is to be indemnified by the bankruptcy trustee against any costs incurred in the proceedings on the condition that the partner does not claim any benefit from them. Section 68(4) Any purported release by the partner of the debt or demand to which the proceedings relate is void. - 69 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 69. Discharge or transfer of indenture of apprenticeship or articles of agreement on bankruptcy of employer
Apprentices or articled clerks (or their agents) may request discharge of their indenture or transfer it when their employer is adjudged bankrupt; the bankruptcy trustee or Official Receiver must discharge the indenture if satisfied it is in the apprentice's or clerk's interests and may pay reasonable fees from the bankrupt's estate or transfer the indenture; dissatisfied persons may apply to Court.
Section 69. Discharge or transfer of indenture of apprenticeship or articles of agreement on bankruptcy of employer Section 69(1) If a person is apprenticed or is an articled clerk to an employer who is adjudged bankrupt, either of them may give notice to the bankruptcy trustee or the Official Receiver requesting that the indenture of apprenticeship or articles of agreement be discharged. Section 69(2) On receiving a notice under subsection (1), the bankruptcy trustee or Official Receiver shall discharge the indenture of apprenticeship or articles of agreement, but only if satisfied that it would be in the interests of the apprentice or clerk to do so. Section 69(3) If money has been paid to the bankrupt by or on behalf of the apprentice or clerk as a fee, the bankruptcy trustee may, on the application of the apprentice or clerk, or of the agent of the apprentice or clerk, pay from the bankrupt's estate such amount as the trustee considers reasonable to or for the use of the apprentice or clerk. Section 69(4)(a) the amount paid by or on behalf of the apprentice; Section 69(4)(b) the time during which the apprentice or clerk served with the bankrupt under the indenture or articles before the commencement of the bankruptcy; and Section 69(4)(c) any other relevant circumstance. Section 69(5) On the application of any apprentice or articled clerk to the bankrupt, or an agent of the apprentice or articled clerk, the bankruptcy trustee or Official Receiver may, instead of acting under subsection (2), transfer the indenture of apprenticeship or articles of agreement to some other person. Section 69(6) Subsection (5) is subject to section 12 of the Industrial Training Act (Cap. 237). Section 69(7) Any person dissatisfied with a decision of the bankruptcy trustee under subsection (3) may apply to the Court for an order quashing or varying the decision. Section 69(8) On the hearing of an application made under subsection (7), the Court may make the order sought by the applicant or such other order as it considers appropriate. - 70 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 70. Bankruptcy trustee may apply for directions by the Court
A bankruptcy trustee may apply to the Court for directions on any question about how this Part operates.
Section 70. Bankruptcy trustee may apply for directions by the Court Section 70(1) A bankruptcy trustee may apply to the Court for directions on any question concerning the operation of this Part. Section 70(2) A bankruptcy trustee who acts under a direction of the Court discharges the bankruptcy trustee's duty in relation to the matter for which the direction was sought, and it does not matter that the direction is later invalidated, overruled, or set aside or otherwise becomes ineffective. Section 70(3)(a) fraud; or Section 70(3)(b) deliberate concealment or misrepresentation. - 71 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 71. Application to the Court to reverse or modify bankruptcy trustee's decision
A person (including the bankrupt or a creditor) whose interests are detrimentally affected by an applicable act or decision may apply to the Court to reverse or modify that act or decision.
Section 71. Application to the Court to reverse or modify bankruptcy trustee's decision Section 71(1) A person (including the bankrupt or a creditor) whose interests, monetary or otherwise, are detrimentally affected by an act or decision to which this section applies may apply to the Court to reverse or modify the act or decision. Section 71(2)(a) an act or decision of the bankruptcy trustee; or Section 71(2)(b) a decision of the Court in carrying out an examination under section 170. Section 71(3)(a) within twenty-one days after the act or decision; or Section 71(3)(b) within such extended period as the Court allows. Section 71(4)(a) confirm the bankruptcy trustee's act or decision, with or without such modifications as it considers appropriate; or Section 71(4)(b) if it is of the opinion that the act or decision was unfair or unreasonable, quash it. - 72 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 72. Bankruptcy trustee to keep proper accounting records
Bankruptcy trustees must keep proper accounting records for each bankruptcy and, if the Court requires, must verify them by statutory declaration; creditors or other interested persons may inspect those records.
Section 72. Bankruptcy trustee to keep proper accounting records Section 72(1)(a) keep proper accounting records for each bankruptcy in the form and manner prescribed by the insolvency regulations; and Section 72(1)(b) if required by the Court to do so, verify those records by statutory declaration. Section 72(2) A creditor or other person who has an interest in a particular bankruptcy is entitled to inspect the bankruptcy trustee's accounting records relating to the particular bankruptcy. Section 72(3)(a) delivering them to the bankrupt or the bankrupt's personal representative, if requested; or Section 72(3)(b) destroying or otherwise disposing of them. - 73 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 73. Bankruptcy trustee’s final statement of receipts and payments
The bankruptcy trustee must publish the final statement of receipts and payments in the prescribed form and advertise that it has been published.
Section 73. Bankruptcy trustee’s final statement of receipts and payments Section 73(1)(a) as soon as practicable after the distribution of the final dividend has been determined; or Section 73(1)(b) when the whole of the bankrupt's property has been realised, if there are insufficient assets to pay all the proofs of debt. Section 73(2)(a) shows in detail the receipts and payments in respect of the bankrupt's estate; and Section 73(2)(b) can be inspected without fee by any creditor or other person who has an interest in it. Section 73(3) The bankruptcy trustee shall publish the final statement of receipts and payments in the prescribed form, and advertise in the prescribed manner that it has been published. - 74 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 74. Audit of bankruptcy trustee's accounts
The Auditor-General may audit certain bankruptcy trustee records when the Official Receiver is the bankruptcy trustee.
Section 74. Audit of bankruptcy trustee's accounts Section 74(1)(a) the bankruptcy trustee's accounting records for any particular bankruptcy; Section 74(1)(b) any statement of accounts and statement of financial position prepared by the bankruptcy trustee under section 73 ; and Section 74(1)(c) the account (if any) maintained by the bankruptcy trustee for the purposes of this Act. Section 74(2) If, in relation to a bankruptcy, the Official Receiver is the bankruptcy trustee, the Auditor-General may from time to time audit the records, statements and account referred to in subsection (1)(a) to (b). - 75 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 75. Removal of bankruptcy trustee and vacation of office
Section 75 sets out how a bankruptcy trustee may be removed or vacate office, including removal by Court order or a specially convened creditors' meeting; trustees who cease to be authorised vacate office; and trustees (not Official Receiver) may resign with at least thirty days' notice to the Court.
Section 75. Removal of bankruptcy trustee and vacation of office Section 75(1)(a) an order of the Court; or Section 75(1)(b) a creditor's meeting convened specially for that purpose in accordance with the insolvency regulations. Section 75(2)(a) the Official Receiver or that trustee considers it appropriate to do so; Section 75(2)(b) the Court so directs; or Section 75(2)(c) the meeting is requested by one of the bankrupt’s creditors with the concurrence of not less than one-quarter, in value, of the creditors (including the creditor making the request). Section 75(3) A bankruptcy trustee who is not also the Official Receiver vacates office on ceasing to be authorised as an insolvency practitioner. Section 75(4) A bankruptcy trustee who is not also the Official Receiver may resign office by giving to the Court not less than thirty days' notice of the resignation. Section 75(5)(a) on giving notice to the Court that a final meeting has been held in accordance with section 253 and of the decision (if any) of that meeting; or Section 75(5)(b) if the relevant bankruptcy order is annulled, on the annulment of the order. - 76 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 76. When Official Receiver is released from obligations as bankruptcy trustee
The Official Receiver is released from duties as bankruptcy trustee when (1) the Court appoints a replacement, (2) creditors appoint a replacement and the Receiver notifies the Court, or (3) the Receiver notifies the Cabinet Secretary that administration is practically complete and the Cabinet Secretary determines the release time; on release the Official Receiver is discharged from liability for acts or omissions in administering the bankrupt’s estate.
Section 76. When Official Receiver is released from obligations as bankruptcy trustee Section 76(1) If a person has been appointed by the Court to replace the Official Receiver on his or her ceasing to hold office as bankruptcy trustee in respect of a bankrupt's estate, the Official Receiver is released from such time as the Court orders. Section 76(2) If a person has been appointed by a general meeting of a bankrupt’s creditors to replace the Official Receiver on his or her ceasing to hold office as bankruptcy trustee in respect of the bankrupt’s estate, the Official Receiver is released from office from the time at which the Official Receiver gives notice to the Court that another person has been appointed as a replacement. Section 76(3) If the Official Receiver, while acting as bankruptcy trustee, gives notice to the Cabinet Secretary that the administration of the bankrupt's estate is for practical purposes complete, the Official Receiver's release takes effect from such time as the Cabinet Secretary determines in writing. Section 76(4) On being released under this section, the Official Receiver is, from the time specified in accordance with this section, discharged from all liability both in respect of acts or omissions occurring in the course of, or in relation to, administering the estate of the bankrupt concerned. - 77 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 77. When bankruptcy trustee, not being the Official Receiver, is released from obligation
A bankruptcy trustee who is not the Official Receiver is released from their obligations in the circumstances and at the times described in this section; once released they are discharged from liability for acts or omissions in administering the bankrupt’s estate from the specified time.
Section 77. When bankruptcy trustee, not being the Official Receiver, is released from obligation Section 77(1) This section applies when a person other than the Official Receiver ceases hold office as a bankruptcy trustee. Section 77(2) If the person has been removed from office by a meeting of the bankrupt’s creditors that has not resolved against the person's release or who has died, the person is released from the time at which a notice is given to the Court in accordance with the insolvency regulations that the person has ceased to hold office. Section 77(3)(a) by a general meeting of the bankrupt's creditors that has resolved against the bankrupt's release; Section 77(3)(b) by the Court, the person is released from such time as the Official Receiver determines, on an application made by that person. Section 77(4) If the person has vacated office under section 75(3), the person is released from such time as the Official Receiver determines, on an application made by that person. Section 77(5) If the person has resigned office under section 75(4), the person is released from such time as may be determined in accordance with the insolvency regulations. Section 77(6)(a) if the final meeting referred to in that subsection has resolved against that person's release, such time as the Official Receiver determines, on an application made by that person; but Section 77(6)(b) if that meeting has not so resolved, the time at which the person vacated office. Section 77(7) When a bankruptcy order is annulled, the person is released from such time as the Court determines. Section 77(8) On being released under this section, a bankruptcy trustee is, from the time specified in accordance with this section, discharged from all liability both in respect of acts or omissions occurring in the course of, or in relation to, administering the estate of the bankrupt concerned. Section 77(7) Nothing in this section prevents the Court from exercising its powers under section 74 in relation to a person who has been released under this section. - 78 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 78. Vacancy in office of bankruptcy trustee
When there is a vacancy in the office of bankruptcy trustee the Official Receiver holds the office until filled; the Official Receiver may convene a creditors' meeting to fill the vacancy; any creditor may request a meeting if the Official Receiver has not convened one; if a request appears to have the concurrence of at least one-quarter in value of creditors, the Official Receiver must convene it.
Section 78. Vacancy in office of bankruptcy trustee Section 78(1)(a) the appointment of a person as bankruptcy trustee has failed to take effect; or Section 78(1)(b) when such an appointment has taken effect, the person appointed has died, resigned or otherwise ceased to hold the office. Section 78(2) When this section applies to a vacancy, the Official Receiver holds office as bankruptcy trustee until the vacancy is filled. Section 78(3) The Official Receiver may at any time convene a creditors' meeting for the purpose of filling such a vacancy. Section 78(4) If the Official Receiver has not convened, and does not propose to convene, a creditors' meeting for the purpose of filling such a vacancy, any creditor of the bankrupt may request the Official Receiver to convene such a meeting. Section 78(5) If such a request appears to the Official Receiver to be made with the concurrence of not less than one-quarter in value of the bankrupt's creditors (including the creditor making the request), the Official Receiver shall convene the requested meeting. Section 78(6) A reference in this section to a vacancy includes a case in which it is necessary, in relation to particular property that is or may be included in a bankrupt's estate, to revive the trusteeship of the estate after the holding of a final meeting convened under section 253 or after the Official Receiver has given notice under section 76 (2) or 77(2). - 79 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 79. General control of bankrupt trustee by the Court
A person dissatisfied with a bankruptcy trustee's act, omission or decision may apply to the Court, which may confirm, reverse or modify the act, give directions to the trustee, or make other orders and give directions on matters relating to the bankrupt's estate.
Section 79. General control of bankrupt trustee by the Court Section 79(1) If, in relation to the bankruptcy trustee in respect of a bankrupt's estate, a person (including the bankrupt or a creditor of the bankrupt) is dissatisfied with any act, omission to act or decision of that trustee, the person may apply to the Court for an order under subsection (2). Section 79(2)(a) confirm, reverse or modify the act, omission or decision concerned; or Section 79(2)(b) give the bankruptcy trustee directions; or Section 79(2)(c) make such other order as it considers appropriate. Section 79(3) The Court may, on the application of a bankruptcy trustee, give directions in respect of the bankrupt's estate in relation to any particular matter arising under the bankruptcy. - 80 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 80. Liability of bankruptcy trustee for misapplication of money, etc.
Certain persons (Official Receiver, Attorney-General, a creditor, or the bankrupt) may make applications under section 80; the Court must approve applications made by the bankrupt or made after the trustee's release; if the Court is satisfied that the bankrupt's estate sustained loss due to the trustee's misfeasance or breach of duty, the Court shall make one or both orders directing the trustee to repay or to be disqualified.
Section 80. Liability of bankruptcy trustee for misapplication of money, etc. Section 80(1)(a) the Official Receiver; Section 80(1)(b) the Attorney-General; Section 80(1)(c) a creditor of the bankrupt; Section 80(1)(d) the bankrupt (whether or not there is, or is likely to be, a surplus available at the end of the bankruptcy). Section 80(2) Approval of the Court is required for the making of such an application if it is to be made by the bankrupt or if it is to be made after the bankruptcy trustee has been released in accordance with section 77 . Section 80(3)(a) an order directing the bankruptcy trustee, for the benefit of the bankrupt’s estate, to repay, restore or account for the relevant money or other property, together with interest at such rate as the Court considers appropriate; Section 80(3)(b) an order directing the bankruptcy trustee to be disqualified from acting as such for such period as may be specified in the order. Section 80(4) If, on hearing an application made under subsection (1), the Court is satisfied that the bankrupt's estate has sustained a loss as a result of misfeasance or a breach of fiduciary or other duty by the bankruptcy trustee in performing that trustee's functions, the Court shall make either or both of the following orders: - 81 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 81. Kinds of creditors' meetings
Names kinds of creditors' meetings and mentions the first meeting of creditors.
Section 81. Kinds of creditors' meetings Section the first meeting of creditors; and - 82 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 82. Subsequent meetings of creditors
The bankruptcy trustee may convene further creditors' meetings and must advertise their time, date and place as prescribed; a meeting may be convened on creditor request supported by at least one-quarter in number and value of proved creditors.
Section 82. Subsequent meetings of creditors Section 82(1) The bankruptcy trustee may at any time convene a meeting of creditors after the first meeting of creditors. Section 82(2)(a) requested to do so by a creditor of the bankrupt; and Section 82(2)(b) the request is made with the concurrence of not less than one-quarter in number and value of the creditors who have proved their debts. Section 82(3)(a) the bankrupt; and Section 82(3)(b) each creditor named in the statement of the bankrupt's financial position; and Section 82(3)(c) any other creditors known to the bankruptcy trustee. Section 82(4) The bankruptcy trustee shall advertise the time, date and place of the meeting in the manner prescribed by the insolvency regulations for the purpose of this section. Section 82(5) Nothing in this section limits the general effect of section 63 (5) or Part 3 of the First Schedule. - 83 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 83. Meeting and resolution not defective for lack of notice
A creditors' meeting and any resolution passed there is valid even if some creditors did not receive notice, unless the Court orders otherwise.
Section 83. Meeting and resolution not defective for lack of notice Section A meeting of creditors convened by notice to creditors, and a resolution passed at the meeting, is valid even if some creditors may not have received the notice, unless the Court orders otherwise. - 84 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 84. Appointment of Chairperson to conduct creditor’s' meetings
Section 84 defines who is the Chairperson of a creditors' meeting, allows creditors to appoint a Chairperson if the trustee (or appointee) is absent provided the person can vote, and allows an appointed or elected Chairperson to administer oaths.
Section 84. Appointment of Chairperson to conduct creditor’s' meetings Section 84(1) The Chairperson of a creditors' meeting is the bankruptcy trustee or a person appointed by the bankruptcy trustee to be the Chairperson. Section 84(2) However, if neither the bankruptcy trustee nor the person (if any) appointed by the bankruptcy trustee to be the Chairperson attends the meeting, the creditors may appoint one of them to act as Chairperson for the purpose of the meeting, but only if that person is entitled to vote at the meeting. Section 84(3) A person appointed by the bankruptcy trustee or elected by the creditors to act as Chairperson may administer any oath that the bankruptcy trustee could have administered if the bankruptcy trustee had attended the meeting. - 85 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 85. Power of Chairperson to adjourn creditors' meeting
The Chairperson of a creditors' meeting may adjourn the meeting.
Section 85. Power of Chairperson to adjourn creditors' meeting Section The Chairperson of a creditors' meeting may adjourn the meeting from time to time and place to place. - 86 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 86. Bankruptcy trustee to report to creditors' meeting
Bankruptcy trustee must report to creditors' meeting on the administration of the bankrupt's estate.
Section 86. Bankruptcy trustee to report to creditors' meeting Section report on the administration of the bankrupt's estate; - 87 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 87. Who can attend creditors' meeting
Specifies the ways people may attend a creditors' meeting: physically present at the appointed time/place; by audio or audio-visual link if the bankruptcy trustee makes it available so participants can hear and be heard; by postal or electronic vote under section 94; or by proxy on any resolution.
Section 87. Who can attend creditors' meeting Section 87(1)(a) by being physically present at the time, date and place appointed for the meeting; or Section 87(1)(b) if the bankruptcy trustee makes it available, by means of an audio or audio-visual link, so that all those participating in the meeting can hear and be heard by each other. Section 87(2)(a) by voting by postal or electronic vote under section 94 ; or Section 87(2)(b) by proxy on any resolution to be put to the meeting. - 88 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 88. Bankrupt may be required to attend creditors' meeting and be questioned
Bankrupt persons must attend creditors' meetings if required by the bankruptcy trustee, may be questioned about their property/conduct, must sign statements of evidence if required, and failing without reasonable excuse is an offence punishable by a fine not exceeding two hundred thousand shillings.
Section 88. Bankrupt may be required to attend creditors' meeting and be questioned Section 88(1) The bankrupt shall, if required by the bankruptcy trustee, attend all creditors' meetings by being physically present or present by an audio or audio-visual link. Section 88(2)(a) the bankruptcy trustee; Section 88(2)(b) the Chairperson of the meeting; Section 88(2)(c) a creditor or a representative of a creditor. Section 88(3) The Chairperson of the meeting may allow only questions that relate to the bankrupt's property, conduct or dealings. Section 88(4) The questioning may be on oath. Section 88(5) The bankrupt shall sign a statement of the bankrupt's evidence given under the questioning, if required to do so by the bankruptcy trustee or the Chairperson of the meeting. Section 88(6) A bankrupt who, without reasonable excuse, fails to comply with subsection (5) commits an offence and on conviction is liable to a fine not exceeding two hundred thousand shillings. - 89 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 89. Attendance at creditors' meeting by non-creditors
Attendance at creditors' meeting by non-creditors.
Section 89. Attendance at creditors' meeting by non-creditors Section the bankruptcy trustee; or - 90 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 90. Minutes and record of creditors' meeting
The bankruptcy trustee must ensure minutes are kept of each creditors' meeting; minutes are invalid unless signed by the bankruptcy trustee or the Chairperson; the trustee may record the meeting only with the consent of each person attending.
Section 90. Minutes and record of creditors' meeting Section 90(1) The bankruptcy trustee shall ensure that minutes are kept of each creditors' meeting. Section 90(2) The minutes are invalid unless signed by the bankruptcy trustee or the Chairperson of the meeting. Section 90(3) The bankruptcy trustee may record the meeting, but only with the consent of each person attending the meeting. - 91 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 91. Number of persons required for creditors' meeting to be valid
For a creditors' meeting to be valid, the bankruptcy trustee (or their representative) and a creditor (or their representative) must attend; if they do not attend the meeting lapses and the bankruptcy trustee may convene another meeting.
Section 91. Number of persons required for creditors' meeting to be valid Section 91(1)(a) the bankruptcy trustee or a person who represents the bankruptcy trustee; Section 91(1)(b) a creditor or a person who represents a creditor. Section 91(2) The meeting lapses if those persons do not attend, in which case the bankruptcy trustee may convene another creditors' meeting. - 92 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 92. Who can represent creditors and bankrupt at creditors' meeting
Lists the persons who may represent creditors and bankrupts at a creditors' meeting, including advocates, accountants, accounting record-keepers, authorised agents, those approved by the bankruptcy trustee, partners for partnerships, officers for State or public bodies, and company directors/chief executives/secretaries or their written-authorised persons.
Section 92. Who can represent creditors and bankrupt at creditors' meeting Section 92(1)(a) an advocate; Section 92(1)(b) a certified public accountant; Section 92(1)(c) a person who keeps the creditor's or bankrupt's accounting records; Section 92(1)(d) in the case of a creditor, a person who is the creditor's authorised agent under a power of attorney; Section 92(1)(e) a person who satisfies the bankruptcy trustee that the person represents the creditor or bankrupt; Section 92(1)(f) in the case of a partnership, a partner. Section 92(2)(a) an advocate; Section 92(2)(b) a certified public accountant; Section 92(2)(c) a person who keeps the creditor's or bankrupt's accounting records; Section 92(2)(d) a person who satisfies the bankruptcy trustee that the person represents the creditor or bankrupt; Section 92(2)(e) in the case of a partnership, a partner. Section 92(3)(a) in the case of the State, by any officer of the appropriate government department or agency; Section 92(3)(b) in the case of a public body,by an officer of that body; Section 92(3)(c) in the case of a company, by a director, or its chief executive or secretary or by a person authorised in writing by one of those persons. - 93 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 93. Passing of resolutions at creditors' meetings
Ordinary resolutions require a majority in number and value of attending and voting creditors or their proxies; special resolutions require three-quarters in number and value. The bankruptcy trustee may admit or reject proofs of debt; the meeting Chairperson may adjourn to admit or reject proofs; a person whose debt is admitted is a creditor; the Court may order remedies if a substantiated allegation of conflict or unfairness is made.
Section 93. Passing of resolutions at creditors' meetings Section 93(1)(a) an ordinary resolution is passed if a majority in number and value of the creditors, or their proxies, who attend and who vote on the resolution vote in favour of it; and Section 93(1)(b) a special resolution is passed if three-quarters in number and value of the creditors or their proxies who attend and who vote on the resolution vote in favour of it. Section 93(2)(a) the bankruptcy trustee may admit or reject proofs of debt; Section 93(2)(b) the Chairperson of the meeting may adjourn the meeting in order to admit or reject proofs of debt; Section 93(2)(c) a person whose debt has been admitted is a creditor. Section 93(3)(a) conflicts with this or any other Act or any rule of law; or Section 93(3)(b) is unfair, Section 93(4) If, on the hearing of an application made under subsection (3), the Court finds that the allegation is substantiated, it may make such order, and give such directions, as it considers appropriate to address the conflict or unfairness. Section 93(5) This section is subject to section 311. - 94 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 94. What votes can be counted for passing of resolutions at creditors' meeting
Postal votes and electronic votes (if permitted by the voting paper) may be counted for resolutions; such votes can be counted only if they reach the bankruptcy trustee at least seventy-two hours before the meeting, and voting papers must accompany the meeting notice with instructions to return them at least two working days before the meeting.
Section 94. What votes can be counted for passing of resolutions at creditors' meeting Section 94(1)(a) by postal vote; or Section 94(1)(b) by electronic vote, if the voting paper for the resolution allows it, in accordance with the procedure specified in the voting paper. Section 94(2) A postal or electronic vote can be counted only if it reaches the bankruptcy trustee at least seventy-two hours before the meeting begins. Section 94(3) A voting paper for each resolution to be put to a creditors' meeting is required to accompany the notice of the meeting, together with instructions for returning the voting paper or electronic vote (if allowed by the voting paper under subsection (1)(b) to the bankruptcy trustee at least two working days before the meeting begins. - 95 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 95. Who may vote at creditors' meeting
Creditors of the bankrupt who are entitled to vote, or their representatives, may vote at a creditors' meeting.
Section 95. Who may vote at creditors' meeting Section Creditors of the bankrupt who are entitled to vote, or their representatives, may vote at a creditors' meeting, but this rule is subject to sections 96 to 98. - 96 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 96. When secured creditor may vote at creditors' meeting
Secured creditor may vote at creditors' meeting.
Section 96. When secured creditor may vote at creditors' meeting Section surrendered the charge; - 97 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 97. When creditor under bill of exchange or promissory note may vote at creditors' meeting
A creditor under a bill of exchange or promissory note may (a) treat a qualifying liability as a charge, (b) estimate the value of that charge, (c) deduct the charge's value from the creditor's claim for voting purposes (but not for distribution), and (d) show the bill or note to the bankruptcy trustee when required.
Section 97. When creditor under bill of exchange or promissory note may vote at creditors' meeting Section 97(1)(a) to treat a qualifying liability as a charge in the creditor's hands; Section 97(1)(b) to estimate the value of the charge; Section 97(1)(c) to deduct the value of the charge from the creditor's claim for the purposes of voting (but not for the purposes of distribution under this Part); Section 97(1)(d) to show the bill or note to the bankruptcy trustee when the bankruptcy trustee requires it. Section 97(2)(a) is liable on the bill or note antecedently to the debtor; and Section 97(2)(b) is not a bankrupt. - 98 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 98. Person disqualified from voting at creditor's meeting through preferential effect
The provision lists persons disqualified from voting at a creditor's meeting (business partner, employer or employee of that person; a creditor represented by that person; and business partner/employer/employee of such a creditor) and states that a vote cast in contravention of paragraph (1) is invalid.
Section 98. Person disqualified from voting at creditor's meeting through preferential effect Section 98(1)(a) that person's business partner, employer or employee; Section 98(1)(b) a creditor that that person represents; and Section 98(1)(c) a business partner, employer, or employee of a creditor whom that person represents. Section 98(2) A vote cast in contravention (1) is invalid. - 99 Verify source ↗
BANKRUPTCY OF NATURAL PERSONS - 99. Entitlement of partner's creditor to prove debt at creditors' meeting
If a partner who is jointly indebted becomes bankrupt, the creditor may prove the debt to enable voting at creditors' meetings and is entitled to vote.
Section 99. Entitlement of partner's creditor to prove debt at creditors' meeting Section The bankruptcy of a partner of a firm who is indebted to a creditor jointly with one or more of the other partners entitles the creditor to prove the debt for the purpose of voting at any creditors' meeting, and to vote.
Part IV
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS
- 303 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 303. Interpretation: Division 1
Defines terms used in Division 1: "debtor", "interim order", "proposal", "provisional supervisor", "supervisor", and "voluntary arrangement", and states when a voluntary arrangement approved under section 309 ends prematurely under section 312(2)(b).
Section 303. Interpretation: Division 1 Section 303(1) In this Division— "debtor" means a debtor who is a natural person; "interim order" means an order made under section 306; "proposal" means a proposal made by a debtor to the debtor's creditors for a composition in satisfaction of the debtor's debts or a scheme of arrangement of the debtor's financial affairs; "provisional supervisor", in relation to a proposal, means the person designated as referred to in section 306(1)(d); "supervisor", in relation to a voluntary arrangement, means the person who is for the time being performing the functions imposed as a result of the approval of the arrangement by the creditors of the debtor under the arrangement; "voluntary arrangement", in relation to a debtor, means a proposal that has taken effect in accordance with section 312 (1). Section 303(2) For the purposes of this Division, a voluntary arrangement approved by a creditors' meeting convened under section 309 ends prematurely if, when it ceases to have effect, it has not been fully implemented in respect of all persons bound by the arrangement because of section 312(2)(b). - 304 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 304. When application for interim order can be made
Section 304 sets when an application for an interim order may be made (when the debtor intends to propose a composition or scheme) and requires the debtor to ensure the proposal names a supervisor; only an authorised insolvency practitioner may be supervisor; who may make the application is specified and special notice requirements apply for undischarged bankrupt debtors.
Section 304. When application for interim order can be made Section 304(1) An application to the Court for an interim order may be made if the debtor intends to make a proposal to the debtor's creditors under this Division for a composition in satisfaction of the debtor's debts or a scheme of arrangement of the debtor's financial affairs. Section 304(2) The debtor shall ensure that the proposal provides for a person to act as supervisor of the voluntary arrangement to which the proposal relates. Section 304(3) Only an authorised insolvency practitioner is eligible to act as supervisor of a voluntary arrangement. Section 304(4)(a) if the debtor is an undischarged bankrupt, by the debtor, the bankruptcy trustee of the debtor's estate or the Official Receiver; and Section 304(4)(b) in any other case-by the debtor. Section 304(5) An application may be made by a debtor who is an undischarged bankrupt only if the debtor has given notice of the proposal to the Official Receiver and, if there is one, the bankruptcy trustee of the debtor's estate. Section 304(6) An application may not be made while a bankruptcy application made by the debtor is pending, if the Court has, under section 33, appointed an authorised insolvency practitioner to inquire into the debtor's financial affairs and to report on those affairs to the Court. - 305 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 305. Effect of application for interim order
A court where proceedings are pending against a debtor may, if an application under section 304 has been made, either stay those proceedings or allow them to continue on terms it considers appropriate.
Section 305. Effect of application for interim order Section 305(1)(a) only with the approval of the Court; and Section 305(1)(a)(i) only with the approval of the Court; and Section 305(1)(a)(ii) if in giving approval the Court has imposed conditions, only if those conditions are complied with; Section 305(1)(b) may prohibit distress from being levied on the debtor's property or its subsequent sale, or both; and Section 305(1)(b)(i) may prohibit distress from being levied on the debtor's property or its subsequent sale, or both; and Section 305(1)(b)(ii) may stay any action, execution or other legal process against the property or person of the debtor. Section 305(2) A court in which proceedings are pending against the debtor may, on proof that an application has been made under section 304 in respect of the debtor, either stay the proceedings or allow them to continue on such terms as it considers appropriate. - 306 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 306. Power of the Court to make interim order
The Court must make an interim order if it is satisfied that doing so would facilitate consideration and implementation of the debtor's proposal.
Section 306. Power of the Court to make interim order Section 306(1)(a) that the debtor intends to make a proposal under this Division; Section 306(1)(b) that on the day of the making of the application the debtor was an undischarged bankrupt or was able to make an application for the debtor's own bankruptcy; Section 306(1)(c) that no previous application has been made by the debtor for an interim order during the twelve months immediately preceding that day; and Section 306(1)(d) that the supervisor designated under the debtor's proposal is willing to act in relation to the proposal. Section 306(2) The Court shall make an interim order if satisfied that it would facilitate the consideration and implementation of the debtor's proposal. Section 306(3) If the debtor is an undischarged bankrupt, the interim order may contain provisions as to the conduct of the bankruptcy, and the administration of the bankrupt's estate, during the period for which the order is to have effect. Section 306(4) However, an interim order may, in relation to a debtor who is an undischarged bankrupt, include a provision relaxing or removing a requirement of Part III or of this Division, or of the insolvency regulations, only if the Court is satisfied that the inclusion of the provision would be unlikely to result in a significant diminution in, or in the value of, the debtor's estate in relation to the conduct of the bankruptcy. Section 306(5) Except as otherwise provided by this Division, an interim order made on an application made under section 304 ceases to have effect at the end of fourteen days from the date on which the order was made. Section 306(6) On the making of an interim order, the designated supervisor referred to in subsection (1)(d) becomes provisional supervisor. Section 306(7)(a) a bankruptcy application relating to the debtor may not be made or proceeded with; Section 306(7)(b) a landlord or other person to whom rent is payable may exercise a right of forfeiture by peaceable re-entry in relation to premises let to the debtor in respect of a failure by the debtor to comply with a term or condition of the debtor's tenancy of the premises only with the approval of the Court; and Section 306(7)(c) any other proceedings (including execution or other legal process) may be begun or continued, and distress may be levied, against the debtor or the debtor's property only with the approval of the Court. - 307 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 307. Provisional supervisor to report on debtor's proposal
The provisional supervisor must submit a report on the debtor's proposal describing specified matters; the Court has procedures to replace the supervisor or extend interim orders where the report is not submitted or further time is needed.
Section 307. Provisional supervisor to report on debtor's proposal Section 307(1)(a) whether, in that supervisor's opinion, the proposal has a reasonable prospect of being approved and implemented; Section 307(1)(b) whether, in that supervisor's opinion, a meeting of the debtor's creditors should be convened to consider the proposal; and Section 307(1)(c) if in that supervisor's opinion is that such a meeting should be convened, the date on which, and the time and place at which, it is proposed to hold the meeting. Section 307(2)(a) a document setting out the terms of the proposal; and Section 307(2)(b) such particulars of the debtor's creditors and of the debtor's debts and other liabilities and of the debtor's assets as may be prescribed by the insolvency regulations for the purposes of this section; and Section 307(2)(b)(i) such particulars of the debtor's creditors and of the debtor's debts and other liabilities and of the debtor's assets as may be prescribed by the insolvency regulations for the purposes of this section; and Section 307(2)(b)(ii) such other information as may be so prescribed. Section 307(3) If the provisional supervisor has failed to submit the report required by this section or has died, the Court may, on an application made by the debtor, make an order directing that supervisor to be replaced as such by another authorised insolvency practitioner in relation to the proposal. Section 307(4) If it is impracticable or inappropriate for the provisional supervisor to continue to act as such, the Court may, on an application made by the debtor or that supervisor, make an order directing that supervisor to be replaced as such by another authorised insolvency practitioner in relation to the proposal. Section 307(5) If the provisional supervisor has failed to submit the report as required by this section, the Court may, on an application made by application of the debtor, make an order directing the interim order to continue, or (if it has ceased to have effect) to be renewed, for such further period as the Court may specify in the order. Section 307(6) On the hearing of an application made by the provisional supervisor, the Court may make an order extending the period for which the interim order has effect so as to enable that supervisor to have more time to prepare his or her report. Section 307(7) If, on receiving the provisional supervisor's report, the Court is satisfied that a meeting of the debtor's creditors should be convened to consider the debtor's proposal, the Court shall make an order directing the period for which the interim order has effect to be extended (for such further period as it may specify in the order) so as to enable the debtor's proposal to be considered by the debtor's creditors in accordance with this Division. Section 307(8)(a) that the debtor has failed to comply with the debtor's obligations under subsection (2); or Section 307(8)(b) that for any other reason it would be inappropriate for a meeting of the debtor's creditors to be convened to consider the debtor's proposal. - 308 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 308. Debtor's proposal and provisional supervisor's report
Sets out what must be included in a debtor's proposal and requires the provisional supervisor to report and, if they consider a creditors' meeting appropriate, to fix the meeting date, time and place; the Court may replace or extend the supervisor's duties in specified circumstances.
Section 308. Debtor's proposal and provisional supervisor's report Section 308(1)(a) a debtor intends to make a proposal under this Division; Section 308(1)(b) no interim order has been made in relation to the proposal and no application for such an order is pending; and Section 308(1)(c) where the debtor is an undischarged bankrupt, the debtor has given notice of the proposal to the Official Receiver and, if there is one, the bankruptcy trustee of the debtor's estate, Section 308(2)(a) a document setting out the terms of the voluntary arrangement that the debtor is proposing; and Section 308(2)(b) such particulars of the debtor's creditors and of the debtor's debts and other liabilities and of the debtor's assets as may be prescribed by the insolvency regulations for the purposes of this section; and Section 308(2)(b)(i) such particulars of the debtor's creditors and of the debtor's debts and other liabilities and of the debtor's assets as may be prescribed by the insolvency regulations for the purposes of this section; and Section 308(2)(b)(ii) such other information as may be so prescribed. Section 308(3)(a) the debtor's proposal has a reasonable prospect of being approved and implemented; and Section 308(3)(b) a meeting of the debtor's creditors should be convened to consider the debtor's proposal. Section 308(4)(a) fourteen days after the provisional supervisor has received the document and statement referred to in subsection (2); Section 308(4)(b) such extended period as the Court may allow. Section 308(5) If of the opinion that a meeting of the debtor's creditors should be convened to consider the debtor's proposal, the provisional supervisor shall fix the date on which, and time and place at which, it is proposed to hold the meeting and notify those creditors accordingly. Section 308(6) If the provisional supervisor has failed to submit the report required by this section or has died, the Court may, on an application made by the debtor, make an order directing that supervisor to be replaced as such by another authorised insolvency practitioner. Section 308(7) If it is impracticable or inappropriate for the provisional supervisor to continue to act as such, the Court may, on an application made by the debtor or that supervisor, make an order directing that supervisor to be replaced as such by another authorised insolvency practitioner. Section 308(8) The Court may, on an application made by the provisional supervisor, extend the period within which that supervisor's report is required to be submitted. - 309 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 309. When provisional supervisor is to convene creditors' meeting to consider debtor's proposal
If a report under section 307 or 308 recommends convening a creditors' meeting, the provisional supervisor must convene that meeting for the time, date and place proposed in the supervisor's report unless the Court directs otherwise; the convenor must summon every creditor whose claim and address is known and specified classes of creditors described in subsections (3)(a) and (3)(b).
Section 309. When provisional supervisor is to convene creditors' meeting to consider debtor's proposal Section 309(1) If it has been reported to the Court under section 307 or 308 that a meeting of the debtor's creditors should be convened, the provisional supervisor shall, unless the Court otherwise directs, convene that meeting for the time, date and place proposed in that supervisor's report. Section 309(2) The persons to be summoned to the meeting are every creditor of the debtor of whose claim and address the person convening the meeting is aware. Section 309(3)(a) each person who is a creditor of the bankrupt in respect of a bankruptcy debt; and Section 309(3)(b) each person who would be such a creditor if the bankruptcy had commenced on the date on which notice of the meeting was given. - 310 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 310. Conduct of creditors' meeting: consideration of debtor's proposal
Section 310 sets rules for conducting a creditors' meeting: creditors present must elect a Chairperson; the Chairperson must divide voters into secured, preferential and unsecured groups, report the result to the Court and notify meeting recipients; the meeting must follow insolvency regulations and may resolve to adjourn.
Section 310. Conduct of creditors' meeting: consideration of debtor's proposal Section 310(1) The main purpose of a creditors' meeting convened under section 309 is to decide whether to approve the debtor's proposal (with or without modifications). Section 310(2) At the beginning of the meeting, those creditors present shall elect one of their number to be Chairperson of the meeting. Section 310(3) The Chairperson shall then divide the meeting into three groups for voting purposes, with the first group comprising secured creditors (if any), the second group comprising preferential creditors (if any) and the third group comprising unsecured creditors. Section 310(4) A modification to the debtor's proposal may be approved only if the debtor consents to it. Section 310(5) A modification to the debtor's proposal may be one that provides for the provisional supervisor to be replaced by another authorised insolvency practitioner to perform the functions of supervisor of that proposal if it is approved and takes effect as a voluntary arrangement. Section 310(6) However, a modification to the debtor's proposal may not be one as a result of which it is no longer a proposal as defined by section 303 . Section 310(7)(a) the creditor consents to it; or Section 310(7)(b) would be in a position no worse than if the debtor were adjudged bankrupt; Section 310(7)(b)(i) would be in a position no worse than if the debtor were adjudged bankrupt; Section 310(7)(b)(ii) would receive no less from the assets to which the creditor's security relates, or from their proceeds of sale, than any other secured creditor having a security interest in those assets that has the same priority as the creditor's; and Section 310(7)(b)(iii) would be paid in full from those assets, or their proceeds of sale, before any payment from them or their proceeds is made to any other creditor whose security interest in them is ranked below that of the creditor, or who has no security interest in them. Section 310(8) Subject to this section, the meeting is to be conducted in accordance with the rules (if any) prescribed by the insolvency regulations. Section 310(9) The meeting may at any time resolve that it be adjourned, or further adjourned. Section 310(10)(a) shall report the result of of the meeting to the Court; and Section 310(10)(b) immediately after doing so, shall give notice of the result of the meeting to all persons to whom the notice convening the meeting was sent. Section 310(11) If the report is to the effect that the meeting has decided not to approve the debtor's proposal (either with or without modifications), the Court shall discharge any interim order that has effect in relation to the debtor. - 311 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 311. Approval of debtor's proposal
A debtor or any creditor who attended (or was entitled to attend) the creditors' meeting may apply to the Court for an order under subsection (7) before the application deadline; the Court may extend that deadline and may make an order approving the proposal or any other appropriate order. Creditors and the debtor are entitled to appear and be heard at the hearing even if not the applicant.
Section 311. Approval of debtor's proposal Section 311(1) This section applies to the decisions taken at the meeting of creditors held in accordance with section 310 to consider a debtor's proposal (with or without modifications). Section 311(2) The debtor's proposal (including any modifications) is approved if it is supported by a majority (in number and value) of the creditors of each group of creditors present (either in person or by proxy) at the meeting of creditors. Section 311(3)(a) admit or reject proofs of debt; and Section 311(3)(a)(i) admit or reject proofs of debt; and Section 311(3)(a)(ii) adjourn the meeting in order to admit or reject proofs of debt; Section 311(3)(b) a person whose debt is admitted is a creditor. Section 311(4) At any time before the deadline for making an application under this subsection, the debtor or any of the debtor's creditors who attended or was entitled to attend the meeting may make an application to the Court for an order under subsection (7). Section 311(5)(a) the expiry of thirty days after the date on which the meeting of creditors was held; or Section 311(5)(b) if the Court extends that period, the expiry of the extended period. Section 311(6) The debtor and any creditor who attended or was entitled to attend the meeting of creditors is entitled to appear and be heard at the hearing of the application even if not the applicant. The right conferred by this subsection may be exercised by such a creditor irrespective of whether the creditor supports or has an interest in the implementation of the proposal. Section 311(7)(a) make an order approving the proposal (with or without the modifications (if any) put to the meeting of creditors in accordance with section 310); or Section 311(7)(b) make such other order as it considers appropriate, Section 311(8)(a) has been approved by a majority of the secured creditors' group; Section 311(8)(b) does not discriminate among the members of the dissenting group or groups of creditors and ensures that they will be no worse off than they would have been if the debtor had been adjudged bankrupt; and Section 311(8)(c) respects the priorities of preferential creditors over unsecured creditors. Section 311(9) Section 93(3) and (4) apply in relation to a resolution purporting to be passed in accordance with this section. - 312 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 312. Effect of approval of debtor's proposal by meeting of creditors or by the Court
When the Court approves a debtor's proposal it takes effect as a voluntary arrangement the day after approval or on a later date specified by the order.
Section 312. Effect of approval of debtor's proposal by meeting of creditors or by the Court Section 312(1) A debtor's proposal (with or without modifications) takes effect as a voluntary arrangement by the debtor on the day after the date on which it is approved by the Court by order made under section 311 (7)(a) or on such later date as may be specified in the order. Section 312(2)(a) was entitled to vote at the meeting (whether present or represented at the meeting or not); or Section 312(2)(b) would have been so entitled if the person had received notice of the meeting, as if the person were a party to the arrangement. Section 312(3) On the approved proposal taking effect as a voluntary arrangement, the provisional supervisor becomes the supervisor of the arrangement unless that supervisor has been replaced in accordance with section 310 (5). Section 312(4)(a) when the voluntary arrangement ends, any amount payable under the arrangement to a person bound because of subsection (2)(b)(ii) has not been paid; and Section 312(4)(b) that arrangement did not come to an end prematurely, Section 312(5) An interim order having effect in relation to the debtor immediately before the expiry of thirty days from and including the date on which the report with respect to the creditors' meeting was made to the Court in accordance with section 310 (10) ceases to have effect at the end of that period. Section 312(6) Subsection (5) applies except to such extent as the Court may direct for the purposes of any application made under section 314 (right to challenge decision taken at creditors' meeting). Section 312(7) If proceedings on a bankruptcy application have been stayed by an interim order that has ceased to have effect, the application is, unless the Court otherwise orders, taken to have been dismissed. - 313 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 313. Additional effect on undischarged bankrupt
The Court must annul a bankruptcy order on hearing an application made under subsection (1), subject to subsection (2), unless there are compelling reasons not to do so; the Court may also give directions about the bankruptcy and estate administration when making that order.
Section 313. Additional effect on undischarged bankrupt Section 313(1)(a) the bankrupt; or Section 313(1)(b) if the bankrupt has not made an application within the period prescribed by the insolvency regulations for the purposes of this section, the Official Receiver, Section 313(2)(a) during the period within which the decision of the creditors' meeting can be challenged by an application made under section 314 (1); Section 313(2)(b) while an application under section 314 (1) is pending; Section 313(2)(c) while an appeal in respect of an order made under section 313 is pending; or Section 313(2)(d) during the period within which such an appeal may be made. Section 313(3) On the hearing of an application made under subsection (1), the Court shall, subject to subsection (2), annul the bankruptcy order, unless it is of the opinion that there are compelling reasons not to do so. Section 313(4) In making an order under subsection (3), the Court may give such directions about the conduct of the bankruptcy and the administration of the bankrupt's estate as it considers appropriate for facilitating the implementation of the approved proposal. - 314 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 314. Right to challenge decision taken at creditors’ meeting
Gives persons specified in the section a right to seek orders from the Court to challenge approvals or irregularities arising from a creditors’ meeting.
Section 314. Right to challenge decision taken at creditors’ meeting Section 314(1)(a) that a debtor's proposal approved by a creditors' meeting held in accordance with section 309 unfairly affects the interests of a creditor of the debtor; Section 314(1)(b) that a material irregularity occurred at or in relation to the meeting. Section 314(2)(a) the debtor; Section 314(2)(b) was entitled to vote at the creditors' meeting; or Section 314(2)(b)(i) was entitled to vote at the creditors' meeting; or Section 314(2)(b)(ii) would have been so entitled if the person had had notice of it; Section 314(2)(c) the provisional supervisor or, if the proposal has taken effect as a voluntary arrangement, the supervisor of the arrangement; and Section 314(2)(d) if the debtor is an undischarged bankrupt, the bankruptcy trustee in respect of the debtor's estate or the Official Receiver. Section 314(3)(a) after the end of thirty days from and including the date on which the result of the creditors' meeting was reported to the Court in accordance with section 309 (10); or Section 314(3)(b) in the case of a person who was not given notice of the creditors' meeting, after the end of thirty days from and including the date on which the person first became aware that the meeting had taken place, Section 314(4)(a) make an order revoking or suspending an approval given by the meeting; Section 314(4)(b) give a direction to any person for the convening of a further meeting of the debtor's creditors to consider any revised proposal the person may make or, in a case to which subsection (1)(b) applies, to reconsider the debtor's original proposal. Section 314(5) If, at any time after giving a direction under subsection (4)(b) for convening a meeting to consider a revised proposal, the Court is satisfied that the debtor does not intend to submit such a proposal, the Court shall revoke the direction and revoke or suspend any approval given at the previous meeting. Section 314(6) If the Court gives a direction under subsection (4)(b), it may also give a direction continuing or, as the case requires, renewing, for such period as may be specified in the direction, the effect in relation to the debtor of any applicable interim order. Section 314(7)(a) action taken since the meeting under any voluntary arrangement approved by the meeting; and Section 314(7)(b) such action taken since the meeting as could not have been taken if an interim order had had effect in relation to the debtor when it was taken. Section 314(8) Except as otherwise provided by this section, an approval given at a creditors' meeting held in accordance with section 309 is not invalidated by any irregularity occurring at or in relation to the meeting. - 315 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 315. Implementation and supervision of voluntary arrangement
The supervisor must implement and supervise voluntary arrangements under sections 312 or 319 and has necessary powers; dissatisfied parties may apply to the Court which may confirm, quash or modify supervisor actions and give directions, and the Court may appoint or replace supervisors in certain circumstances.
Section 315. Implementation and supervision of voluntary arrangement Section 315(1) The supervisor is responsible for implementing and supervising a voluntary arrangement that has taken effect under section 312 or 319 and has such powers as are necessary to enable that responsibility to be carried out. Section 315(2) If a voluntary arrangement has effect under section 312 or 319 , a debtor or a creditor of the debtor or any other person who is dissatisfied by any act, omission or decision of the supervisor may apply to the Court for an order under subsection (3). Section 315(3)(a) if it finds the action or decision of the supervisor to have been unfair or unjustified, make an order quashing or modifying the act or decision; or Section 315(3)(a)(i) if it finds the action or decision of the supervisor to have been unfair or unjustified, make an order quashing or modifying the act or decision; or Section 315(3)(a)(ii) if it does not so find, make an order confirming the act or decision; and Section 315(3)(b) give such directions to the supervisor as it considers appropriate; and Section 315(3)(b)(i) give such directions to the supervisor as it considers appropriate; and Section 315(3)(b)(ii) make such ancillary order as it considers appropriate. Section 315(4) On the application of the supervisor to the Court for directions in relation to any particular matter arising under the voluntary arrangement, the Court may give such directions in relation to the matter as it considers appropriate. Section 315(5)(a) it is desirable to appoint a person to perform the functions of the supervisor; and Section 315(5)(b) it is difficult or impracticable for an appointment to be made without the assistance of the Court, Section 315(6) The power conferred by subsection (5) is exercisable so as to increase the number of persons performing the functions of supervisor or, if there is more than one person performing those functions, so as to replace one or more of those persons. - 316 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 316. Expedited voluntary arrangement procedure: availability
The Official Receiver may, if satisfied the debtor's proposal has a reasonable prospect of approval and implementation, make arrangements to invite creditors to decide whether to approve the proposal.
Section 316. Expedited voluntary arrangement procedure: availability Section 316(1)(a) the debtor is an undischarged bankrupt; Section 316(1)(b) the Official Receiver is specified in the proposal as the provisional supervisor in relation to the proposal; and Section 316(1)(c) no application for an interim order has been made under section 304 . Section 316(2)(a) a document setting out the terms of the debtor's proposal; and Section 316(2)(b) such particulars as may be prescribed by the insolvency regulations for the purposes of this section of the debtor's creditors, debts, other liabilities and assets; and Section 316(2)(b)(i) such particulars as may be prescribed by the insolvency regulations for the purposes of this section of the debtor's creditors, debts, other liabilities and assets; and Section 316(2)(b)(ii) such other information as may be so prescribed. Section 316(3) If satisfied that the proposal has a reasonable prospect of being approved and implemented, the Official Receiver may make arrangements for the purpose of inviting creditors to decide whether to approve it. Section 316(4)(a) the person is a creditor of the debtor in respect of a bankruptcy debt; and Section 316(4)(b) the Official Receiver is aware of the person's claim and the person's address. Section 316(5)(a) each creditor is provided with a copy of the debtor's proposal; Section 316(5)(b) each creditor is provided with information about the criteria by reference to which the Official Receiver will determine whether the creditors approve or reject that proposal; and Section 316(5)(c) no opportunity is allowed for modifications to that proposal to be suggested or made. Section 316(6)(a) has made the arrangements referred to in subsection (3); or Section 316(6)(b) has informed the debtor that the Official Receiver does not intend to make such arrangements (either because the Official Receiver is not satisfied that the proposal has a reasonable prospect of being approved and implemented or for any other reason). Section 316(7) If a meeting of creditors is convened for the purpose of subsection (3), the provisions of section 310 apply to the holding and conduct of the meeting. - 317 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 317. Duty of Official Receiver to report result to the Court
The Official Receiver must report to the Court, as soon reasonably practicable after the arrangements under section 316 have been implemented, whether the proposed voluntary arrangement has been approved or rejected.
Section 317. Duty of Official Receiver to report result to the Court Section As soon reasonably practicable after the arrangements under section 316 have been implemented, the Official Receiver shall report to the Court whether the proposed voluntary arrangement has been approved or rejected. - 318 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 318. Approval of expedited voluntary arrangement
If the Official Receiver reports to the Court that the debtor's proposal has been approved, the proposal takes effect as a voluntary arrangement.
Section 318. Approval of expedited voluntary arrangement Section 318(1) If the Official Receiver reports to the Court that the debtor's proposal has been approved, the proposal takes effect as a voluntary arrangement. Section 318(2)(a) the debtor; and Section 318(2)(b) binds every person (including a secured creditor and a preferential creditor) who was entitled to participate in the arrangements made in accordance with section 316 (3), Section 318(2) In addition to submitting the report, the Official Receiver may make an application to the Court to make an order under subsection (4). Section 318(3)(a) during the period within which the voluntary arrangement can be challenged by an application under section 314 ; Section 318(3)(b) while an application made under that section is pending; Section 318(3)(c) while an appeal in respect of an application made under that section is pending; or Section 318(3)(d) during the period within which such an appeal may be made. Section 318(4) On considering an application made under subsection (2), the Court shall annul the bankruptcy order in respect of the debtor unless it is of the opinion that there are compelling reasons not to do so. Section 318(5) The Court may give such directions about the conduct of the bankruptcy and the administration of the bankrupt's estate as it considers will facilitate the implementation of the approved voluntary arrangement. - 319 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 319. Power of Official Receiver to make application for annulment of bankruptcy order where debtor is an undischarged bankrupt
The Official Receiver may apply to the Court to annul a bankruptcy order for an undischarged bankrupt; the Court must annul the order unless there are compelling reasons not to do so, and the Court may give directions to facilitate a voluntary arrangement.
Section 319. Power of Official Receiver to make application for annulment of bankruptcy order where debtor is an undischarged bankrupt Section 319(1) In addition to making the arrangements under section 316 (3), the Official Receiver may, if the debtor is an undischarged bankrupt, make an application to the Court to make an order under subsection (3). Section 319(2)(a) while an application for an order under section 311(7) is pending; Section 319(2)(b) during the period within which a voluntary arrangement can be challenged by an application made under section 314 ; Section 319(2)(c) while an application made under that section is pending; or Section 319(2)(d) while an appeal in respect of an order made under that section is pending; or Section 319(2)(e) during the period within which such an appeal may be made. Section 319(3) On considering an application made under subsection (1), the Court shall annul the bankruptcy order in respect of the debtor unless it is of the opinion that there are compelling reasons not to do so. Section 319(4) The Court may give such directions about the conduct of the bankruptcy and the administration of the bankrupt's estate as it considers will facilitate the implementation of the voluntary arrangement. - 320 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 320. Revocation of expedited voluntary arrangement
Certain persons (the debtor, persons entitled to participate under section 316(3), the bankruptcy trustee if any, and the Official Receiver) may apply to revoke an expedited voluntary arrangement; generally applications must be made within 30 days from the date the Official Receiver reports to the Court, except a creditor unaware of the arrangements may apply within 30 days from when they first became aware.
Section 320. Revocation of expedited voluntary arrangement Section 320(1)(a) that it unfairly affects the interests of a creditor of the debtor; or Section 320(1)(b) that a material irregularity occurred in relation to the arrangements made under section 316 (3). Section 320(2)(a) the debtor; Section 320(2)(b) a person who was entitled to participate in the arrangements made under section 316 (3); Section 320(2)(c) the bankruptcy trustee (if any); or Section 320(2)(d) the Official Receiver. Section 320(3) An application under subsection (2) may not be made after the expiry of thirty days from and including the date on which the Official Receiver has reported to the Court as required by section 317 . Section 320(4) However, a creditor who was not made aware of the arrangements under section 316 (3) at the time when they were made may make an application under subsection (2) during the thirty days from and including the date on which the creditor first became aware of the voluntary arrangement. - 321 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 321. Offence for debtor to make false representation for purpose of obtaining creditors' approval
It is an offence for a person to knowingly make false or misleading representations, or fraudulently act or omit to act, for the purpose of obtaining creditors' approval; conviction may lead to a fine up to two million shillings or imprisonment up to five years, or both.
Section 321. Offence for debtor to make false representation for purpose of obtaining creditors' approval Section 321(1)(a) makes a representation knowing it to be false or misleading; or Section 321(1)(b) fraudulently does, or omits to do, any act. Section 321(2)(a) the approval of a proposal for a voluntary arrangement presented to a meeting of the debtor's creditors held in accordance with section 310; or Section 321(2)(b) the approval of a proposal for a voluntary arrangement submitted to the Official Receiver in accordance with section 316 . Section 321(3) Subsection (1) applies even if the proposal is not approved. Section 321(4) A person found guilty of an offence under subsection (1) is liable on conviction to a fine not exceeding two million shillings or to imprisonment for a term not exceeding five years, or to both. - 322 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 322. Prosecution of delinquent debtors
Supervisors of a voluntary arrangement must report suspected offences to the Attorney-General and the Director of Public Prosecutions, comply with requests for information or documents under the debtor's control, and assist prosecutions; the Attorney-General or Director may apply to court if the supervisor fails to comply, and the Court may order compliance.
Section 322. Prosecution of delinquent debtors Section 322(1) This section applies to a voluntary arrangement that has taken effect in accordance with section 312 (1) or 319 (1). Section 322(2) As soon as practicable after forming a reasonable suspicion that a debtor has committed an offence in connection with a voluntary arrangement to which this section applies, the supervisor of the arrangement shall report the matter to the Attorney-General and to the Director of Public Prosecutions. Section 322(3)(a) such information as is specified in the request; and Section 322(3)(b) access to, and facilities for inspecting and taking copies of, such documents as are so specified. Section 322(3) The supervisor shall comply with such a request to the extent that the information or documents are under the debtor's control and relate to the matter concerned. Section 322(4) If the Director of Public Prosecutions takes criminal proceedings following a report made under subsection (2), the supervisor shall provide that Director with all assistance in connection with the prosecution that the supervisor is reasonably able to provide. Section 322(5) If the supervisor fails to comply with subsection (3) or (4), the Attorney-General or Director of Public Prosecutions may apply to the Court for an order under subsection (6). Section 322(6) On the hearing of an application made under subsection (5), the Court may make an order directing the supervisor to comply with subsection (3) or (4), as appropriate. - 323 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 323. What is a summary instalment order?
Asks what a "summary instalment order" is.
Section 323. What is a summary instalment order? Section in instalments or in some other way; and - 324 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 324. Who can apply for summary instalment order
A debtor may apply for a summary instalment order.
Section 324. Who can apply for summary instalment order Section a debtor; or - 325 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 325. Requirements for applications made by debtors
The Official Receiver may refuse a summary instalment order application that does not comply with subsection (2); subsection (2) lists particulars the debtor must include in the application.
Section 325. Requirements for applications made by debtors Section 325(1) The Official Receiver may refuse an application for a summary instalment order if the application does not comply with subsection (2). Section 325(2)(a) is in the form prescribed by the insolvency regulations for the purposes of this section; Section 325(2)(b) that the debtor proposes to pay the creditors in full; or Section 325(2)(b)(i) that the debtor proposes to pay the creditors in full; or Section 325(2)(b)(ii) the proportion of the outstanding debt that the debtor proposes to pay; Section 325(2)(c) states the total amount of the weekly or other instalments that the debtor proposes to pay; Section 325(2)(d) the name and address of the debtor's proposed supervisor and annex the written consent of that person to be supervisor; or Section 325(2)(d)(i) the name and address of the debtor's proposed supervisor and annex the written consent of that person to be supervisor; or Section 325(2)(d)(ii) if the debtor claims that a supervisor is not necessary, the debtor's reasons for making that claim; and Section 325(2)(e) the debtor's full name and address; Section 325(2)(e)(i) the debtor's full name and address; Section 325(2)(e)(ii) details of the debtor's property; Section 325(2)(e)(iii) the names and addresses of each creditor; Section 325(2)(e)(iv) the amount and nature of each of the creditors' debts; Section 325(2)(e)(v) whether any of the debts are secured and the value of the charge or security right; Section 325(2)(e)(vi) whether any of the debts are guaranteed by any person; Section 325(2)(e)(vii) the amount of the debtor's earnings; Section 325(2)(e)(viii) the name and address of the debtor's employer (if any); Section 325(2)(e)(ix) any other matter that may be prescribed by the insolvency regulations for the purposes of this subsection. - 326 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 326. Official Receiver may make summary instalment order
The Official Receiver may make a summary instalment order if specified debt and inability-to-pay conditions are met; must not do so without giving debtor and creditors an opportunity to make representations; supervisor must refer and the Official Receiver must cancel if proved debts exceed the subsection (1)(a) amount.
Section 326. Official Receiver may make summary instalment order Section 326(1)(a) the debtor's total unsecured debts that would be provable in the debtor's bankruptcy do not exceed the amount prescribed by the insolvency regulations for the purpose of this section; and Section 326(1)(b) the debtor is unable immediately to pay those debts. Section 326(2) The Official Receiver may not make such an order without having given the debtor and the creditors an opportunity to make representations with respect to the matter. Section 326(3) A summary instalment order is not invalid merely because the total amount of the debts proved exceeds the amount specified in subsection (1)(a), but if it does, the supervisor appointed under section 328 shall refer the matter to the Official Receiver, in which case the Official Receiver shall cancel the order. - 327 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 327. Power of Official Receiver to make additional orders
Official Receiver has the power to make additional orders about a debtor's future earnings or income.
Section 327. Power of Official Receiver to make additional orders Section an order regarding the debtor's future earnings or income; - 328 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 328. Appointment of supervisors
The Official Receiver may dispense with appointing a supervisor; the Official Receiver may require a supervisor to provide a bond, and if requiring a bond the Official Receiver must specify the bond amount and the person to receive it.
Section 328. Appointment of supervisors Section 328(1) Except as provided by subsection (2), a summary instalment order is ineffective if it does not provide for the appointment of a suitable and willing person to supervise compliance by the debtor with the terms of the order. Section 328(2) The Official Receiver may dispense with the appointment of a supervisor if the Official Receiver considers it appropriate to do so. Section 328(3)(a) the provisions of this Division apply as if the debtor was the supervisor, except for section 329 ; and Section 328(3)(b) that section applies as if the Official was the supervisor. Section 328(4) The Official Receiver may require a supervisor to provide a bond to secure the supervisor's performance of the supervisor's obligations under the Act. Section 328(5) In imposing such a requirement, the Official Receiver shall specify the amount of the bond and the person to whom it is to be given. - 329 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 329. Role of supervisors
The supervisor must supervise the debtor's compliance with the summary instalment order and other orders under section 327, and may charge the debtor remuneration not exceeding rates fixed in the insolvency regulations.
Section 329. Role of supervisors Section 329(1) The supervisor is responsible for supervising the debtor's compliance with the terms of the summary instalment order and any other orders made under section 327. Section 329(2) The supervisor may charge the debtor remuneration for carrying out the supervisor's responsibilities as supervisor at the amount or rates not exceeding the amount or rates fixed in accordance with the insolvency regulations. - 330 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 330. Power of Official Receiver to require supervisor or past supervisor to provide documents
The Official Receiver may issue a notice requiring a supervisor or past supervisor to provide specified documents about the debtor within not less than seven days; failure to comply is an offence punishable by a fine up to two hundred and fifty thousand shillings.
Section 330. Power of Official Receiver to require supervisor or past supervisor to provide documents Section 330(1) The Official Receiver may, by notice, require a supervisor or a past supervisor to provide the Official Receiver, within not less than seven days from the date of the notice, with any specified documents, or any documents of a specified class, that relate to the debtor's property, conduct or dealings that are under the control of the supervisor or past supervisor. Section 330(2) A supervisor or past supervisor who fails to comply with a notice given to the supervisor or past supervisor under subsection (1) commits an offence and on conviction is liable to a fine not exceeding two hundred and fifty thousand shillings. - 331 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 331. Termination of supervisor's appointment for failure to supervise adequately
If the Official Receiver considers the supervisor has failed to supervise the debtor's compliance adequately, the Official Receiver must terminate that supervisor's appointment and appoint a replacement supervisor.
Section 331. Termination of supervisor's appointment for failure to supervise adequately Section If of the opinion that the supervisor has failed to supervise the debtor's compliance adequately, the Official Receiver shall terminate the supervisor's appointment and appoint a replacement supervisor. - 332 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 332. Period for payment of instalments
The period for payment of instalments is three years.
Section 332. Period for payment of instalments Section three years; or - 333 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 333. Variation or discharge of summary instalment orders
The debtor, any creditor or the supervisor may apply in writing at any time to the Official Receiver to vary or discharge a summary instalment order; after considering such an application the Official Receiver must vary or discharge the order as the Official Receiver considers appropriate.
Section 333. Variation or discharge of summary instalment orders Section 333(1) The debtor, any creditor or the supervisor may at any time apply in writing to the Official Receiver to vary or discharge a summary instalment order. Section 333(2) After considering an application made under subsection (1), the Official Receiver shall vary or discharge the order as the Official Receiver considers appropriate. - 334 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 334. Effect of summary instalment orders
Debtor must pay all instalments due under a summary instalment as prescribed by the insolvency regulations; the Official Receiver must cancel a summary instalments order if satisfied on reasonable grounds that the debtor failed to comply with that payment obligation.
Section 334. Effect of summary instalment orders Section 334(1) The debtor shall pay all instalments payable under a summary instalment in the manner prescribed by the insolvency regulations. Section 334(2) The Official Receiver shall cancel a summary instalments order on being satisfied on reasonable grounds that the debtor has failed to comply with subsection (1). - 335 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 335. Restrictions on bringing proceedings against debtors while summary instalment order has effect
While a summary instalment order is in effect, the Official Receiver can approve a creditor to begin or continue proceedings and may impose fair and reasonable conditions on such approval.
Section 335. Restrictions on bringing proceedings against debtors while summary instalment order has effect Section 335(1)(a) shown in the debtor's application for the summary instalment order; Section 335(1)(b) included in the summary instalment order; or Section 335(1)(c) notified to the supervisor. Section 335(2)(a) the Official Receiver gives approval for a creditor to begin or continue the proceedings; or Section 335(2)(b) the debtor is in default under the order. Section 335(3) In giving any such approval, the Official Receiver may impose such conditions as appear to the Official Receiver to be fair and reasonable. Section 335(4)(a) shall stay the proceedings on receiving notice of the order; and Section 335(4)(b) may award all or part of the creditor's costs incurred up to the time of the Court's notification, and may certify accordingly for the purpose of the creditor proving the debt under this Division. - 336 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 336. Supervisor to give notice of summary instalment order to creditors
A supervisor must give notice of a summary instalment order to creditors who are known to the supervisor, whose name is shown on the debtor's application, or who have proved a debt under section 340.
Section 336. Supervisor to give notice of summary instalment order to creditors Section 336(1)(a) who is known to the supervisor; Section 336(1)(b) whose name is shown on the debtor's application for the order; or Section 336(1)(c) who has proved a debt under section 340 . Section 336(2) A supervisor who, without reasonable excuse, fails to comply with subsection (1) commits an offence and on conviction is liable to a fine not exceeding two hundred thousand shillings. - 337 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 337. Public register of debtors subject to current summary instalment order
The Official Receiver must establish and maintain a public register of persons subject to current summary instalment orders and must maintain that register in accordance with Division 2 of Part XII.
Section 337. Public register of debtors subject to current summary instalment order Section 337(1) The Official Receiver shall establish and maintain a public register of persons who are subject to current summary instalment orders. Section 337(2) The Official Receiver shall maintain the register in accordance with Division 2 of Part XII. - 338 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 338. When summary instalment order ceases to be current
A summary instalment order stops being current when it has been discharged or when all instalments required by the order have been paid in accordance with the order.
Section 338. When summary instalment order ceases to be current Section A summary instalment order is not current if it has been discharged or all the instalments required to be paid under the order have been paid in accordance with the order. - 339 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 339. Claims of creditors when summary instalment has effect
Creditors who prove their debt to the supervisor can be included in the debtor's estate administration under the summary instalment order; creditors may object to acceptance decisions, the Official Receiver can direct on objections, persons becoming creditors after the order may elect inclusion and may receive dividends only after earlier included creditors have been paid.
Section 339. Claims of creditors when summary instalment has effect Section 339(1) A creditor who has proved the creditor's debt to the satisfaction of the supervisor is entitled to be included as a creditor in the administration of the debtor's estate under the summary instalment order for the amount of the debt. Section 339(2) A creditor may object to the supervisor's acceptance or rejection of any creditor's claim by applying to the Official Receiver. Section 339(3) If a creditor objects under subsection (2), the Official Receiver may give any directions that the Official Receiver considers appropriate as to the acceptance or rejection of the claim. Section 339(4) A person who becomes a creditor of the debtor after the order has been made, and who proves a debt before the supervisor, may elect to be included in the administration of the debtor's estate. Section 339(5) If such a person so elects, the person may be paid a dividend under the order only after the creditors who became creditors of the debtor before the order was made and who have been included as a creditor in the administration have been paid under the order. - 340 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 340. Payment of debtor's earnings to supervisor
If the supervisor (using power from a summary instalment order) directs the debtor's employer to pay the debtor's earnings, the employer must pay those earnings (or part) to the supervisor; such payments are recoverable as a debt from the employer and the supervisor's receipt discharges the employer. Section 340(3) provides qualifying circumstances including consent of the supervisor or Official Receiver and payment to a person with a better legal claim.
Section 340. Payment of debtor's earnings to supervisor Section 340(1) This section applies if the supervisor, under a power conferred by a summary instalment order made by the Official Receiver, directs the debtor's employer to pay the debtor's earnings, or part of them, to the supervisor. Section 340(2) The amounts that the employer shall pay to the supervisor are recoverable as a debt from the employer, and the supervisor's receipt is a complete discharge to the employer for the debt. Section 340(3)(a) with the consent of the supervisor or the Official Receiver; or Section 340(3)(b) to a person who is not the debtor and who has a better legal claim to it than the debtor. - 341 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 341. Consequences of default by debtor to pay amount due under summary instalment order
When a debtor fails to make a payment under a summary instalment order, the supervisor must give notice of the failure to the Official Receiver.
Section 341. Consequences of default by debtor to pay amount due under summary instalment order Section 341(1)(a) to have been able to pay the amount from the date of the order; and Section 341(1)(b) to have refused or neglected to pay it. Section 341(2)(a) proceedings that have been stayed under section 335 may begin or continue; Section 341(2)(b) any period during which a proceeding was stayed under that section are to be added to any period of limitation that applies to the proceeding. Section 341(3) Subsection (2) is subject to any order of the Court to the contrary. Section 341(4) As soon as practicable after a debtor fails to make a payment in accordance with a summary instalment order, the supervisor shall give notice of the failure to the Official Receiver. - 342 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 342. Offence for debtor to obtain credit while summary instalment order has effect
It is an offence for a debtor subject to a summary instalment order to obtain credit, incur liability, or enter credit purchase transactions of one hundred thousand shillings or more.
Section 342. Offence for debtor to obtain credit while summary instalment order has effect Section 342(1)(a) alone or jointly with another person, obtains credit of one hundred thousand shillings or more; Section 342(1)(b) incurs a liability to another person for one hundred thousand shillings or more for the purpose of obtaining credit for another person; or Section 342(1)(c) enters into a credit purchase transaction under which the debtor is liable to pay one hundred thousand shillings or more. Section 342(2)(a) in a case to which subsection (1)(a) applies, that, before obtaining the relevant credit, informed the credit provider that the debtor was subject to a summary instalment order; Section 342(2)(b) in a case to which subsection (1)(b) applies, that, before the defendant incurred the relevant liability, the credit provider was informed that the defendant was subject to a summary instalment order; or Section 342(2)(c) in a case to which subsection (1)(c) applies, that, before the defendant entered into the relevant agreement, the other parties to the agreement were informed that the defendant was subject to a summary instalment order. Section 342(3) A person who is found guilty of an offence under this section is liable on conviction to a fine not exceeding one million shillings or to imprisonment for a term not exceeding twelve months, or to both. - 343 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 343. Division 3: introduction
This Division prescribes a procedure for dealing with a debtor who has no realisable assets.
Section 343. Division 3: introduction Section This Division prescribes a procedure for dealing with a debtor who has no realisable assets. - 344 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 344. Application for entry to no-asset procedure
A debtor who meets section 345's criteria may apply to the Official Receiver for entry to the no-asset procedure; the application must include prescribed forms and a statement of financial position, and the Official Receiver may reject it if, in their opinion, it is incorrect or incomplete.
Section 344. Application for entry to no-asset procedure Section 344(1) A debtor who meets the criteria set out in section 345 may apply to the Official Receiver for entry to the no-asset procedure. Section 344(2)(a) an application in the form prescribed by the insolvency regulations for the purpose of this section; and Section 344(2)(b) a statement in the form so prescribed setting out the debtor's financial position. Section 344(3) The Official Receiver may reject the debtor's application if the application or statement of the debtor's financial position is, in the Official Receiver's opinion, incorrect or incomplete. - 345 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 345. Criteria for entry to no-asset procedure
Lists the criteria a natural person (debtor) must meet to enter the no-asset bankruptcy procedure, including having no realisable assets, not having been previously admitted to the no-asset procedure or adjudged bankrupt, having total debts between one hundred thousand and four million shillings, and lacking means to repay those debts.
Section 345. Criteria for entry to no-asset procedure Section 345(1)(a) the debtor has no realisable assets; Section 345(1)(b) the debtor has not previously been admitted to the no-asset procedure; Section 345(1)(c) the debtor has not previously been adjudged bankrupt; Section 345(1)(d) the debtor has total debts that are not less than one hundred thousand shillings and not more than four million shillings; and Section 345(1)(e) the debtor does not have the means to repay any amount towards those debts. Section 345(2)(a) if the debtor were to be adjudged bankrupt on the date of application for entry to the no-asset procedure; and Section 345(2)(b) if Division 19 of Part II applied. - 346 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 346. Debtor disqualified from entry to no-asset procedure in certain cases
A debtor is disqualified from entry to the no-asset procedure if the debtor has concealed assets intending to defraud creditors.
Section 346. Debtor disqualified from entry to no-asset procedure in certain cases Section the debtor has concealed assets with the intention of defrauding the debtor's creditors (such as by transferring property to a trust); - 347 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 347. Official Receiver to notify creditors
The Official Receiver must send each known creditor a summary of the debtor's assets and liabilities after receiving an application from a debtor for entry to the no-asset procedure.
Section 347. Official Receiver to notify creditors Section As soon as practicable after receiving an application from a debtor for entry to the no-asset procedure, the Official Receiver shall send a summary of the debtor's assets and liabilities to each known creditor of the debtor. - 348 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 348. Restrictions on debtor obtaining credit after application made
Debtors who have applied for the no-asset procedure must inform credit providers before obtaining credit over ten thousand shillings; failing to do so is an offence punishable by a fine up to five hundred thousand shillings or imprisonment up to six months, or both.
Section 348. Restrictions on debtor obtaining credit after application made Section 348(1) A debtor who has applied for entry to the no-asset procedure shall not obtain credit (including credit under a credit purchase transaction), either alone or jointly with another person, of more than ten thousand shillings without first informing the credit provider that the debtor has applied for entry to the no-asset procedure. Section 348(2) A debtor who contravenes subsection (1) commits an offence and on conviction is liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding six months, or to both. - 349 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 349. When debtor admitted to no-asset procedure
A debtor is admitted to the no-asset procedure when the Official Receiver sends the debtor a prescribed notice; the Official Receiver must also notify known creditors and publish notice as prescribed.
Section 349. When debtor admitted to no-asset procedure Section 349(1) A debtor is admitted to the no-asset procedure when the Official Receiver sends the debtor a notice in the form prescribed by the insolvency regulations for the purposes of this section. Section 349(2)(a) notify that fact to each creditor of the debtor of whom the Official Receiver is aware; and Section 349(2)(b) publish notice of it in a publication and in a manner prescribed by the insolvency regulations. - 350 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 350. Public register of persons admitted to no-asset procedure
The Official Receiver must establish and keep a public register of persons admitted to the no-asset procedure and of persons discharged from it, and must maintain that register in accordance with Division 2 of Part XI.
Section 350. Public register of persons admitted to no-asset procedure Section 350(1) The Official Receiver shall establish and maintain a public register of persons admitted to the no-asset procedure and persons discharged from that procedure under section 359 . Section 350(2) The Official Receiver shall maintain the register in accordance with Division 2 of Part XI. - 351 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 351. Creditors may not enforce debts of debtor admitted to no-asset procedure
Creditors may not enforce debts of a debtor who has been admitted to the no-asset procedure.
Section 351. Creditors may not enforce debts of debtor admitted to no-asset procedure Section 351(1)(a) that the debtor owes to the creditor at the time when the debtor applies for entry to the no-asset procedure; and Section 351(1)(b) that would be provable in the debtor's bankruptcy if the debtor were to be adjudged bankrupt. Section 351(2)(a) amounts payable under a court order made under the Marriage Act (Cap. 150); Section 351(2)(b) amounts payable under the Children Act (Cap. 141); Section 351(2)(c) amounts owed in respect of a loan to secure the education of a dependent child or step-child of the debtor. - 352 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 352. Debtor's duties after entry to no-asset procedure
Debtors in the no-asset procedure must assist the Official Receiver, notify changes enabling repayment, and must not obtain credit over 100,000 shillings without informing the credit provider.
Section 352. Debtor's duties after entry to no-asset procedure Section 352(1) On being required by the Official Receiver to do so, the debtor shall provide the Official Receiver with such assistance, documents and information as are reasonably necessary in order to apply the no-asset procedure to the debtor. Section 352(2) As soon as practicable after any change occurs in the debtor's circumstances that would allow the debtor to repay an amount towards the debts referred to in section 351(1), the debtor shall give written notification of the change to the Official Receiver. Section 352(3) The debtor may not obtain credit, either alone or jointly with another person, of more than one hundred thousand shillings without first informing the credit provider that the debtor is subject to the no-asset procedure. Section 352(4) In subsection (4), "credit" includes credit under a conditional purchase transaction. - 353 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 353. Offence for person admitted to no-asset procedure to obtain credit
It is an offence for a person admitted to the no-asset procedure to obtain credit, incur liability to obtain credit for another, or enter a credit purchase transaction when the sums involved are one hundred thousand shillings or more; conviction may lead to a fine up to one million shillings, imprisonment up to twelve months, or both.
Section 353. Offence for person admitted to no-asset procedure to obtain credit Section 353(1)(a) alone or jointly with another person, obtains credit of one hundred thousand shillings or more; Section 353(1)(b) incurs liability to a credit provider for one hundred thousand shillings or more for the purpose of obtaining credit for another person; or Section 353(1)(c) enters into a credit purchase transaction under which the person is liable to pay one hundred thousand shillings or more, Section 353(2)(a) in a case to which subsection (1)(a) applies, that, before obtaining the relevant credit the defendant informed the credit provider that the defendant was admitted to the no-asset procedure; Section 353(2)(b) in a case to which subsection (1)(b) applies, that, before the defendant incurred the relevant liability, the credit provider was informed that the defendant was admitted to the no-asset procedure; or Section 353(2)(c) in a case to which subsection (1)(c) applies, that, before the defendant entered into the relevant agreement, the other parties to the agreement were informed that the defendant was admitted to the no-asset procedure. Section 353(3) A person who is found guilty of an offence under this section is on conviction liable to a fine not exceeding one million shillings or to imprisonment for a term not exceeding twelve months, or to both. - 354 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 354. How debtor's participation in the no-asset procedure is terminated
The Official Receiver may terminate a debtor's participation in the no-asset procedure under section 355.
Section 354. How debtor's participation in the no-asset procedure is terminated Section the Official Receiver terminates the debtor's participation under section 355 ; - 355 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 355. When Official Receiver may terminate no-asset procedure
The Official Receiver may terminate a debtor's no-asset procedure in specified circumstances and must notify known creditors as soon as practicable after termination.
Section 355. When Official Receiver may terminate no-asset procedure Section 355(1)(a) that the debtor was wrongly admitted to the no-asset procedure (for example, because the debtor concealed assets) or misled the Official Receiver; or Section 355(1)(b) that the debtor's financial circumstances have changed sufficiently to enable the debtor to repay an amount towards the debtor's debts. Section 355(2) The debtor's participation in the no-asset procedure is terminated by the Official Receiver sending a notice to that effect to the debtor at the debtor's last known address. Section 355(3) The termination takes effect when the notice is sent, whether or not the debtor receives it. Section 355(4) As soon as practicable after the termination of a debtor's participation in the no-asset procedure, the Official Receiver shall send a notice of the termination to each creditor of the debtor known to the Official Receiver. - 356 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 356. Official Receiver may apply for preservation order on ground of debtor's misconduct
The Official Receiver may apply to the Court for an order to preserve a debtor's assets when the debtor has concealed assets or misled the Official Receiver; the Court may make such a preservation order and may set its terms.
Section 356. Official Receiver may apply for preservation order on ground of debtor's misconduct Section 356(1) If the Official Receiver terminates a debtor's participation in the no-asset procedure on the ground that the debtor has concealed assets or misled the Official Receiver, the Court may, on the application of the Official Receiver, make an order for the preservation of the debtor's assets pending an application for the debtor's bankruptcy. Section 356(2) The Court may make an order under subsection (1) on such terms as it considers appropriate. - 357 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 357. Effect of termination of debtor's participation in no-asset procedure
If a debtor's participation in the no-asset procedure ends, the debtor becomes liable to pay any penalties and interest that may have accrued.
Section 357. Effect of termination of debtor's participation in no-asset procedure Section 357(1)(a) the debtor's debts that became unenforceable on the debtor's entry to the no-asset procedure become again enforceable; and Section 357(1)(b) the debtor becomes liable to pay any penalties and interest that may have accrued. Section 357(2) Subsection (1) does not apply if the debtor's entry to the no-asset procedure is terminated by discharge under section 359 . - 358 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 358. Creditor may apply to Official Receiver for termination of debtor's participation in no-asset procedure
A creditor may apply to the Official Receiver to end a debtor's participation in the no-asset procedure if the debtor did not meet the admission criteria.
Section 358. Creditor may apply to Official Receiver for termination of debtor's participation in no-asset procedure Section that the debtor did not meet the criteria for admission to the no-asset procedure; or - 359 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 359. Discharge of debtor's participation in no-asset procedure
A debtor is automatically discharged from the no-asset procedure after twelve months from admission, unless a deferral notice specifies a different discharge date; the Official Receiver must specify that alternative date in the deferral notice and must send copies of the deferral notice to known creditors.
Section 359. Discharge of debtor's participation in no-asset procedure Section 359(1) A debtor who is participating in the no-asset procedure is automatically discharged from that procedure at the end of twelve months after the date when the debtor was admitted to it. Section 359(2)(a) is satisfied that the twelve-month period should be extended for the purpose of properly considering whether the debtor's participation in the no-asset procedure should be terminated; and Section 359(2)(b) sends a written deferral notice to the debtor's last known address before the end of that period. Section 359(3) The Official Receiver shall specify in the deferral notice an alternative date for automatic discharge, which may be not later than thirty-five days after the end of the twelve-month period. Section 359(4) A deferral notice has effect whether or not the debtor receives it. Section 359(5) As soon as practicable after sending a deferral notice to a debtor, the Official Receiver shall send a copy of the notice to each creditor of the debtor known to the Official Receiver. Section 359(6) The debtor is automatically discharged from the no-asset procedure on the date specified in the deferral notice. Section 359(7)(a) if the notice is revoked on or before the end of the twelve-month period specified in subsection (1), at the end of that period; or Section 359(7)(b) if it is revoked after the end of that period, on the date of revocation. - 360 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 360. Effect of discharge of debtor's participation in no-asset procedure
When a debtor enters the no-asset procedure their debts that became unenforceable are cancelled and the debtor is no longer liable to pay them (including penalties and interest), except for debts involving fraud or fraudulent forbearance; such excluded debts become enforceable on discharge under section 359 and the debtor is liable for penalties and interest that may have accrued.
Section 360. Effect of discharge of debtor's participation in no-asset procedure Section 360(1)(a) the debtor's debts that became unenforceable on the debtor's entry to the no-asset procedure are cancelled; and Section 360(1)(b) the debtor is no longer liable to pay any part of the debts, including any penalties and interest that may have accrued. Section 360(2)(a) to any debt or liability incurred by fraud or fraudulent breach of trust to which the debtor was a party; or Section 360(2)(b) any debt or liability for which the debtor has obtained forbearance through fraud to which the debtor was a party. Section 360(3) The debts and liabilities referred to in subsection (2) again become enforceable on discharge under section 359, and the debtor is liable to pay any penalty or interest that may have accrued. - 361 Verify source ↗
ALTERNATIVES TO BANKRUPTCY: NATURAL PERSONS - 361. Discharge does not release debtor's business partners and others
Discharge does not release debtor's business partners and others.
Section 361. Discharge does not release debtor's business partners and others Section a business partner of the discharged debtor;
Part IX
COMPANY VOLUNTARY ARRANGEMENTS
- 624 Verify source ↗
COMPANY VOLUNTARY ARRANGEMENTS - 624. Interpretation: Division 1
Definition: "a newspaper circulating in the area in which the company carries on business."
Section 624. Interpretation: Division 1 Section a newspaper circulating in the area in which the company carries on business; - 625 Verify source ↗
COMPANY VOLUNTARY ARRANGEMENTS - 625. Proposal for voluntary arrangement
Directors may propose a voluntary arrangement and must provide for a supervisor to be appointed; only an authorised insolvency practitioner may act as that supervisor, and if the company is under administration or in liquidation the appointment is by the administrator or liquidator respectively.
Section 625. Proposal for voluntary arrangement Section 625(1) The directors of a company may make a proposal under this Division to the company and to its creditors for a voluntary arrangement under which the company enters into a composition in satisfaction of its debts or a scheme for arranging its financial affairs. Section 625(2) In making such a proposal, the directors shall provide for the appointment of a person to supervise the implementation of the voluntary arrangement. Section 625(3) Only an authorised insolvency practitioner may be appointed to supervise a voluntary arrangement. Section 625(4)(a) if the company is under administration, by the administrator; or Section 625(4)(b) if the company is in liquidation, by the liquidator. - 626 Verify source ↗
COMPANY VOLUNTARY ARRANGEMENTS - 626. Procedure if provisional supervisor is not the liquidator or administrator
If a provisional supervisor (who is not the company's liquidator or administrator) handles a director's proposal and no moratorium is being sought, the provisional supervisor must produce a report stating specified opinions and particulars; if the supervisor fails or dies the proposers must submit the report (or the proposers or supervisor may do so if it is impracticable for the supervisor to act); and the Court may order replacement of the provisional supervisor on an application under subsection (4).
Section 626. Procedure if provisional supervisor is not the liquidator or administrator Section 626(1) This section applies if the provisional supervisor in respect of a director's proposal is not the liquidator or administrator of the company and the directors do not propose to take steps to obtain a moratorium for the company under Division 2. Section 626(2)(a) whether, in that supervisor's opinion, the proposal has a reasonable prospect of being approved and implemented; Section 626(2)(b) whether, in that supervisor's opinion, meetings of the company and of the company's creditors should be convened to consider the proposal; and Section 626(2)(c) if that supervisor believes that those meetings should be convened—the date on which, and the time and place at which, it is proposed to hold the meetings. Section 626(3)(a) a document setting out the terms of the proposal; and Section 626(3)(b) such particulars of its creditors and of its debts and other liabilities and of its assets as may be prescribed by the insolvency regulations for the purposes of this subsection; and Section 626(3)(b)(i) such particulars of its creditors and of its debts and other liabilities and of its assets as may be prescribed by the insolvency regulations for the purposes of this subsection; and Section 626(3)(b)(ii) such other information as may be so prescribed. Section 626(4)(a) if the provisional supervisor has failed to submit the report required by this section or has died, by the proposers; or Section 626(4)(b) if it is impracticable or inappropriate for that supervisor to continue to act as such, by the proposers or that supervisor. Section 626(5) On the hearing of an application made under subsection (4), the Court may make an order directing the provisional supervisor to be replaced as such by another authorised insolvency practitioner. - 627 Verify source ↗
COMPANY VOLUNTARY ARRANGEMENTS - 627. Provisional supervisor to convene meetings of company and of its creditors
The provisional supervisor must convene the company and creditors' meetings described in section 626(2) as required by whether they are or are not the liquidator or administrator; directors may give notice of proposal modifications at least seven days before the meetings.
Section 627. Provisional supervisor to convene meetings of company and of its creditors Section 627(1) If the provisional supervisor appointed under section 625 is not the liquidator or administrator and has reported to the Court that the meetings referred to in section 626 (2) should be convened, that supervisor shall, unless the Court otherwise directs, convene those meetings to be held on the date, and at the time and place, proposed in the report. Section 627(2) If the provisional supervisor is the liquidator or administrator, that supervisor shall convene meetings of the company and of the company's creditors to consider the proposal to be held on such date, and at such time and place, as that supervisor considers appropriate having regard to where the creditors carry on their businesses or reside. Section 627(3) The persons to be summoned to a creditors' meeting convened under this section are all creditors of the company of whose claims and addresses the provisional supervisor is aware. Section 627(4) The directors of the company may, not later than seven days before the dates on which the meetings are, or either of those meetings is, to be held, give notice to the provisional supervisor of any modifications of the proposal for which the directors intend to seek the approval at those meetings. - 628 Verify source ↗
COMPANY VOLUNTARY ARRANGEMENTS - 628. Conduct of meetings of company and its creditors
Meetings convened under section 627 decide whether to approve the directors' proposal (with or without modifications). At the start of a creditors' meeting the meeting must elect one of their number as Chairperson. At the first creditors' meeting the Chairperson must divide creditors into three voting groups: secured, preferential and unsecured. A modification to the directors' proposal can only be approved with the company's consent and may provide for replacing the provisional supervisor with another authorised insolvency practitioner. Secured creditors' relative rights as to assets and proceeds are protected (consent or position no worse than in liquidation with specified sub-conditions). Meetings are to be conducted in accordance with any rules prescribed by the insolvency regulations, may be adjourned, and the result of a meeting must be reported to the Court and those who attended (and known entitled non-attendees) must be given notice immediately after reporting.
Section 628. Conduct of meetings of company and its creditors Section 628(1) The main purpose of a meeting convened under section 627 is to decide whether to approve the proposal or that proposal with modifications. Section 628(2) At the beginning of a creditors' meeting, the meeting shall elect one of their number to be Chairperson of the meeting. Section 628(3) At the first meeting of the creditors, the Chairperson shall divide the meeting into three groups for voting purposes, with the first group comprising secured creditors (if any), the second group comprising preferential creditors (if any) and the third group comprising unsecured creditors. Section 628(4) A modification to the directors' proposal may be approved only if the company consents to it. Section 628(5) A modification to the directors' proposal may provide for the replacement of the provisional supervisor by another authorised insolvency practitioner who will act as the supervisor of the proposal if it takes effect as a voluntary arrangement. Section 628(6)(a) the creditor consents to it; or Section 628(6)(b) would be in a position no worse than if the company was in liquidation; Section 628(6)(b)(i) would be in a position no worse than if the company was in liquidation; Section 628(6)(b)(ii) would receive no less from the assets to which the creditor's security relates, or from their proceeds of sale, than any other secured creditor having a security interest in those assets that has the same priority as the creditor's; and Section 628(6)(b)(iii) would be paid in full from those assets, or their proceeds of sale, before any payment from them or their proceeds is made to any other creditor whose security interest in them is ranked below that of the creditor, or who has no security interest in them. Section 628(7) Subject to this section, the meetings of the company and of the creditors are to be conducted in accordance with the rules (if any) prescribed by the insolvency regulations. Section 628(8) Either meeting may at any time resolve that it be adjourned, or further adjourned. Section 628(9)(a) report the result of the meeting to the Court; and Section 628(9)(b) immediately after reporting to the Court, give notice of the result of the meeting to those persons who attended the meeting, and to those persons of whom the Chairperson is aware who were entitled to attend the meeting but did not do so. - 629 Verify source ↗
COMPANY VOLUNTARY ARRANGEMENTS - 629. Approval of proposal for voluntary arrangement
Rules for approval of a directors' proposal at company and creditors' meetings, rights to apply to Court and to be heard, Court powers, and the thirty‑day deadline for applications.
Section 629. Approval of proposal for voluntary arrangement Section 629(1) This section applies to the decisions taken at the meeting of the company and the meeting of the company's creditors held in accordance with section 628 to consider a directors' proposal (with or without modifications). Section 629(2)(a) by a majority the members of the company present (either in person or by proxy) at the meeting of the company; and Section 629(2)(a)(i) by a majority the members of the company present (either in person or by proxy) at the meeting of the company; and Section 629(2)(a)(ii) by a majority (in number and value) of the members of each group of creditors present (either in person or by proxy) at the meeting of creditors; or Section 629(2)(b) if, despite not being not approved by a majority of the members referred to in paragraph (a)(i), it is approved by a majority (in number and value) of the members of each of the groups of creditors referred to in paragraph (a)(ii). Section 629(3)(a) admit or reject proofs of debt; and Section 629(3)(a)(i) admit or reject proofs of debt; and Section 629(3)(a)(ii) adjourn the meeting in, order to admit or reject proofs of debt; and Section 629(3)(b) a person whose debt has been admitted is a creditor. Section 629(4) At any time before the deadline for making an application under this subsection, any member of the company, or any creditor, who attended or was entitled to attend the meetings may make an application to the Court for an order under subsection (7). Section 629(5)(a) the expiry of thirty days after the holding of the meetings of the company and its creditors (or if the meetings were held on different days, the later of the meetings); or Section 629(5)(b) if the Court extends that period, the expiry of the extended period. Section 629(6) Any member of the company, and any creditor, who attended or was entitled to attend the meetings is entitled to appear and be heard at the hearing of the application even if the member or creditor is not the applicant. The right conferred by this subsection may be exercised by such a member or creditor irrespective of whether the member or creditor supports or has an interest in the implementation of the proposal. Section 629(7)(a) make an order approving the proposal (with or without the modifications (if any) put to the meetings in accordance with section 628 ); or Section 629(7)(b) make such other order as it considers appropriate. Section 629(8)(a) was not approved at the company meeting; or Section 629(8)(b) has been approved by a majority of the secured creditors' group; Section 629(8)(b)(i) has been approved by a majority of the secured creditors' group; Section 629(8)(b)(ii) does not discriminate among the members of the dissenting group or groups of creditors and ensures that they will be no worse off than they would have been if the company had been liquidated; and Section 629(8)(b)(iii) respects the priorities of preferential creditors over unsecured creditors. - 630 Verify source ↗
COMPANY VOLUNTARY ARRANGEMENTS - 630. Approved proposal to take effect as voluntary arrangement and to be binding on company and its creditors
A directors' proposal becomes a company voluntary arrangement on the day after Court approval (or a later date specified), and on that event the provisional supervisor becomes the supervisor unless replaced.
Section 630. Approved proposal to take effect as voluntary arrangement and to be binding on company and its creditors Section 630(1) A directors' proposal (with or without modifications) takes effect as a voluntary arrangement by the company on the day after the date on which it is approved by the Court by order made under section 629(7)(a) or on such later date as may be specified in the order. Section 630(2)(a) was entitled to vote at the meeting of the company (whether present or represented at the meeting or not); or Section 630(2)(a)(i) was entitled to vote at the meeting of the company (whether present or represented at the meeting or not); or Section 630(2)(a)(ii) would have been so entitled if the member had received notice of that meeting; and Section 630(2)(b) was entitled to vote at the meeting of creditors (whether present or represented at the meeting or not); or Section 630(2)(b)(i) was entitled to vote at the meeting of creditors (whether present or represented at the meeting or not); or Section 630(2)(b)(ii) would have been so entitled if the person had received notice of that meeting, Section 630(3) On the approved proposal taking effect as a voluntary arrangement, the provisional supervisor becomes the supervisor of the arrangement unless that supervisor has been replaced in accordance with section 628 (5). Section 630(4)(a) any amount payable under the arrangement to a person bound because of subsection (2)(b)(ii) has not been paid; and Section 630(4)(b) the arrangement did not end prematurely, Section 630(5)(a) an order staying all proceedings in the liquidation, or terminating or suspending the appointment of the administrator; Section 630(5)(b) an order giving such directions with respect to the further conduct of the liquidation or the administration as it considers will further the implementation of the voluntary arrangement. Section 630(6)(a) at any time within thirty days after the first day on which a report required by section 628 (9) has been made to the Court; or Section 630(6)(b) while an application under section 631 , or an appeal in respect of an order made under that section, is pending; Section 630(6)(b)(i) while an application under section 631 , or an appeal in respect of an order made under that section, is pending; Section 630(6)(b)(ii) while an appeal against an order made under that section is pending; or Section 630(6)(b)(iii) during the period within which such an appeal may be made. - 631 Verify source ↗
COMPANY VOLUNTARY ARRANGEMENTS - 631. Certain persons may challenge decisions relating to approved voluntary arrangement by making application to the Court
Certain specified persons may apply to the Court to challenge decisions approving a voluntary arrangement.
Section 631. Certain persons may challenge decisions relating to approved voluntary arrangement by making application to the Court Section 631(1)(a) a person who was entitled to vote at the meeting of the company or the meeting of its creditors; Section 631(1)(b) a person who would have been so entitled if the person had had notice of the relevant meeting; Section 631(1)(c) the provisional supervisor or, if the proposal has taken effect as a voluntary arrangement, the supervisor of the arrangement; Section 631(1)(d) if the company is in liquidation or is under administration, the liquidator or administrator. Section 631(2)(a) that a voluntary arrangement approved under section 629 (2) detrimentally affects the interests of a creditor, member or contributory of the company; Section 631(2)(b) a material irregularity has occurred at or in relation to either of the meetings. Section 631(3)(a) after the end of the thirty days from and including the first day on which a report required by section 628(6) has been made to the Court; or Section 631(3)(b) in the case of a person who was not given notice of the creditors' meeting, after the end of the thirty days from and including the day on which the person became aware that the meeting had taken place. Section 631(4) However, an application made by a person referred to in subsection (2)(b) on the ground that the voluntary arrangement detrimentally affects the person's interests may be made after the arrangement has ceased to have effect, unless it has ended prematurely. Section 631(5)(a) any decision approving the voluntary arrangement in accordance with section 629(2); or Section 631(5)(a)(i) any decision approving the voluntary arrangement in accordance with section 629(2); or Section 631(5)(a)(ii) in a case to which subsection (2)(b) applies, any decision taken by the meeting concerned; Section 631(5)(b) further meetings to consider a revised proposal; or Section 631(5)(b)(i) further meetings to consider a revised proposal; or Section 631(5)(b)(ii) if subsection (2)(b) applies, a further company meeting, or a further creditors' meeting, to reconsider the original proposal. Section 631(6)(a) revoke the order; and Section 631(6)(b) any order revoking or suspending a decision approving the voluntary arrangement in accordance with section 629 . Section 631(7) If the Court makes an order under subsection (5) or (6), it may make such ancillary orders as it considers appropriate and, in particular, orders with respect to action taken under the voluntary arrangement since it took effect. Section 631(8) Except as provided by this section, a decision taken at a meeting held in accordance with section 628 is not invalidated by any irregularity occurring at or in relation to the meeting. - 632 Verify source ↗
COMPANY VOLUNTARY ARRANGEMENTS - 632. Offences involving false representations and fraudulent acts by company officers
Company officers must not make false representations or fraudulently do or omit acts to obtain members' or creditors' approval of a voluntary arrangement proposal.
Section 632. Offences involving false representations and fraudulent acts by company officers Section 632(1)(a) makes a false representation for the purpose of obtaining the approval of the members or creditors of a company to a proposal for a voluntary arrangement; or Section 632(1)(b) fraudulently does, or omits to do, any act for that purpose, Section 632(2) Subsection (1) applies to a proposal even if it is not approved by the members or creditors of the company concerned. - 633 Verify source ↗
COMPANY VOLUNTARY ARRANGEMENTS - 633. Implementation of approved voluntary arrangement
When a voluntary arrangement takes effect the supervisor must implement the arrangement and monitor compliance; creditors or any other person dissatisfied with a supervisor's act, omission or decision may apply to the Court which may quash, modify or give directions and, if not satisfied, shall confirm the act; the supervisor may apply to the Court for liquidation or appointment of an administrator.
Section 633. Implementation of approved voluntary arrangement Section 633(1) When a proposal takes effect as a voluntary arrangement, the supervisor becomes responsible for implementing the arrangement in the interests of the company and its creditors and monitoring compliance by the company with the terms of the arrangement. Section 633(2) If, in relation to a voluntary arrangement that has effect under section 630 , any of the company's creditors or any other person is dissatisfied with an act, omission or decision of the supervisor, the creditor or person may make an application to the Court for an order under subsection (3). Section 633(3)(a) an order quashing or modifying an act, omission or decision of the supervisor; or Section 633(3)(a)(i) an order quashing or modifying an act, omission or decision of the supervisor; or Section 633(3)(a)(ii) an order giving the supervisor directions; but Section 633(3)(b) if not so satisfied, shall make an order confirming that act, omission or decision, Section 633(4) The Court may, on the application of the supervisor, make an order giving directions in relation to any particular matter arising under the voluntary arrangement. Section 633(5) The supervisor has standing to apply to the Court for the liquidation of the company or for an administrator to be appointed in relation to the company. Section 633(6)(a) it would be beneficial to appoint a supervisor to replace an existing supervisor, to appoint an additional supervisor or to fill a vacancy; and Section 633(6)(b) it would be inconvenient or impracticable for such an appointment to be made without for the assistance of the Court, - 634 Verify source ↗
COMPANY VOLUNTARY ARRANGEMENTS - 634. Prosecution of delinquent officers of company
The Director of Public Prosecutions must investigate reports about company matters; persons must produce documents and assist the Director for such investigations; supervisors, officers and agents must assist prosecutions when proceedings begin.
Section 634. Prosecution of delinquent officers of company Section 634(1)(a) a moratorium under has been obtained for a company under this Division; or Section 634(1)(b) the approval of a voluntary arrangement in relation to a company has taken effect under section 630 or 666 . Section 634(2)(a) report the matter to the Director of Public Prosecutions; and Section 634(2)(b) such information relating to that matter; and Section 634(2)(b)(i) such information relating to that matter; and Section 634(2)(b)(ii) such access to and facilities for inspecting and taking copies of documents under the control of the supervisor and relating to that matter concerned), Section 634(3) On receiving a report made under subsection (2), the Director of Public Prosecutions shall investigate the matter to which the report relates and such other matters relating to the affairs of the company as appear to require investigation, and for that purpose may exercise any of the powers conferred on inspectors appointed under the Companies Act (Cap. 486). Section 634(4) For the purpose of an investigation by the Director of Public Prosecutions under subsection (3), a person has the same obligation to produce documents or give information, or otherwise assist the Director of Public Prosecutions, as the person would have in relation to an inspector appointed under the Companies Act (Cap. 486). Section 634(5)(a) evidence relating to the answer may not be adduced; and Section 634(5)(b) questions relating to it may not be asked, Section 634(6) Subsection (5) applies to all offences other than an offence under section 108 or 114 of the Penal Code (Cap. 63) (which respectively relate to perjury and subornation of perjury and to false swearing). Section 634(7) If the Director of Public Prosecutions begins criminal proceedings following a report under subsection (2) or an investigation under subsection (3), the supervisor, and every officer and agent of the company (other than the defendant), shall give that Director such assistance in connection with the prosecution as the supervisor, officer or agent is reasonably able to give. Section 634(8)(a) any banker or advocate of the company; and Section 634(8)(a)(i) any banker or advocate of the company; and Section 634(8)(a)(ii) any person employed by the company as its auditor, Section 634(8)(b) "officer" includes a former officer of the company. Section 634(9) The Court may, on the application of the Director of Public Prosecutions, require any person referred to in subsection (7) to comply with that subsection if the person has failed to do so. Section 634(10) The Director of Public Prosecutions may appoint an advocate to perform the functions, and exercise the powers, of that Director under this section. Section 634(11) If the Director of Public Prosecutions makes such an appointment, the advocate who is appointed has the same functions and powers as that Director has under this section. - 635 Verify source ↗
COMPANY VOLUNTARY ARRANGEMENTS - 635. When voluntary arrangement comes to an end prematurely
When voluntary arrangement comes to an end prematurely
Section 635. When voluntary arrangement comes to an end prematurely Section [Act No. 1 of 2021 , s. 12] - 636 Verify source ↗
COMPANY VOLUNTARY ARRANGEMENTS - 636. Interpretation: Part 2
Defines terms used in Part 2, including "agreement", "beginning of the moratorium", "lodgement date", "monitor", "moratorium" and "person".
Section 636. Interpretation: Part 2 Section 636(1) In this Part— "agreement" includes an agreement or undertaking effected by contract, deed or any other document intended to have effect in accordance with the law of Kenya or another jurisdiction; "beginning of the moratorium" has the meaning given by section 645(1); "lodgement date" means the date on which the documents and statements referred to in section 644(1) are lodged with the Court; "monitor" means the person designated as such under section 643(2)(b); "moratorium" means a moratorium that has taken effect under section 645 and has not ended; "person" includes partnership and any other unincorporated group of persons. Section 636(2) Deleted by ActNo. 1 of 2021s. 13. [Act No. 1 of 2021 , s. 13] - 637 Verify source ↗
COMPANY VOLUNTARY ARRANGEMENTS - 637. Application of Part 2
Part 2 applies to companies eligible for a moratorium.
Section 637. Application of Part 2 Section companies eligible for a moratorium; - 638 Verify source ↗
COMPANY VOLUNTARY ARRANGEMENTS - 638. Eligible companies
Eligible companies must comply with any requirements prescribed by the insolvency regulations.
Section 638. Eligible companies Section complies with such requirements (if any) as may be prescribed by the insolvency regulations; - 639 Verify source ↗
COMPANY VOLUNTARY ARRANGEMENTS - 639. Banking and insurance companies ineligible to obtain moratorium
Companies licensed under section 5 of the Banking Act to carry on banking, financial or mortgage finance business are ineligible to obtain a moratorium.
Section 639. Banking and insurance companies ineligible to obtain moratorium Section a company that holds a licence granted under section 5 of the Banking Act (Cap. 488) authorising it to carry on a banking business, a financial business or the business of a mortgage finance company; - 640 Verify source ↗
COMPANY VOLUNTARY ARRANGEMENTS - 640. Companies under administration, etc., ineligible to obtain moratorium
Lists categories of companies that are ineligible to obtain a moratorium (companies under administration; in liquidation; with an existing voluntary arrangement; with a provisional liquidator; where an administrator under section 541 held office during the prior twelve months; where a prior voluntary arrangement ended prematurely and an order under section 630(5)(a) was made within the prior twelve months; companies with an administrative receiver).
Section 640. Companies under administration, etc., ineligible to obtain moratorium Section 640(1)(a) a company that is under administration; Section 640(1)(b) a company that is in liquidation; Section 640(1)(c) a company in respect of which a voluntary arrangement already has effect; Section 640(1)(d) a company in respect of which a provisional liquidator is appointed; Section 640(1)(e) deleted by ActNo. 1 of 2021s. 16 Section 640(1)(e)(i) deleted by ActNo. 1 of 2021s. 16 Section 640(1)(e)(ii) deleted by ActNo. 1 of 2021s. 16 Section 640(1)(f) a company in respect of which an administrator appointed under section 541 held office during the twelve months immediately preceding the lodgement date; Section 640(1)(g) a company in respect of which a voluntary arrangement had been in effect ended prematurely and, during the twelve months immediately preceding the lodgement date, an order under section 630 (5)(a) has been made; Section 640(1)(h) a company in respect of which an administrative receiver is appointed. Section 640(2) Subsection (1)(b) does not apply to a company that, because of a liquidation order made after the lodgment date, is heated as in liquidation on that date. [Act No. 1 of 2021 , s. 16] - 641 Verify source ↗
COMPANY VOLUNTARY ARRANGEMENTS - 641. Certain projects companies ineligible
A company is treated as ineligible under section 638 if, on the lodgement date, it is a project company of a public-private partnership project that includes step-in rights.
Section 641. Certain projects companies ineligible Section 641(1) A company is also an ineligible company for the purposes of section 638 if, on the lodgement date, it is a project company of a project that is a public-private partnership project and includes step-in rights. Section 641(2)(a) the resources for which are provided partly by one or more public bodies and partly by one or more private persons; or Section 641(2)(b) that is designed wholly or mainly for the purpose of assisting a public body to perform a function. Section 641(3)(a) it holds property for the purpose of the project; Section 641(3)(b) it has sole or principal responsibility under an or for carrying out all or part of the agreement project; Section 641(3)(c) it is one of a number of companies that together carry out the project; Section 641(3)(d) it has the purpose of supplying finance to enable the project to be carried out; or Section 641(3)(e) it is the holding company of a company to which any of paragraphs (a) to (d) applies. Section 641(4)(a) within paragraphs (a) to (d) of that subsection; Section 641(4)(b) related to a function within those paragraphs; or Section 641(4)(c) related to the project. Section 641(5)(a) to assume sole or principal responsibility under an agreement for carrying out all or part of the project; or Section 641(5)(b) to make arrangements for carrying out all or part of the project. Section 641(6) In subsection (5), a reference to the provision of finance includes a reference to the provision of an indemnity. Section 641(7) For the purposes of this section, a company carries out all or part of a project whether or not it acts wholly or partly through agents. Section 641(8)(a) "public body" means the Government, any State organ or government agency or any body constituted or established under an Act for a public purpose; and Section 641(8)(b) "private person" means any person that is not a public body. - 642 Verify source ↗
COMPANY VOLUNTARY ARRANGEMENTS - 642.[Repealed by ActNo. 1 of 2021, s. 17]
Section 642 has been repealed.
Section 642.[Repealed by ActNo. 1 of 2021, s. 17] - 643 Verify source ↗
COMPANY VOLUNTARY ARRANGEMENTS - 643. What steps company's directors have to take to obtain a moratorium
Directors must submit the documents required under subsection (2) to the monitor, and if the monitor requests, must provide further information; the monitor may rely on those documents unless it has reason to doubt their accuracy.
Section 643. What steps company's directors have to take to obtain a moratorium Section 643(1) Deleted by ActNo. 1 of 2021 Section 643(2)(a) a document setting out why a moratorium is desirable, which may include evidence that it will assist in agreeing an informal restructuring or other agreement with creditors or entering a formal insolvency procedure which could lead to the rescue or efficient liquidation of the company; Section 643(2)(a)(i) a document setting out why a moratorium is desirable, which may include evidence that it will assist in agreeing an informal restructuring or other agreement with creditors or entering a formal insolvency procedure which could lead to the rescue or efficient liquidation of the company; Section 643(2)(a)(ii) a statement of the company's financial position containing such particulars of its creditors and of its debts and other liabilities and of its assets as may be prescribed by the insolvency regulations for the purposes of this section, and such other information as may be so prescribed; and Section 643(2)(b) appoint as its monitor an authorised insolvency practitioner who has consented to supervise it; Section 643(3) The directors shall submit the documents required under subsection (2) to the monitor for consideration and comment. Section 643(4) If the monitor requires them to do so, the directors shall provide such other information necessary to enable the monitor to comply with subsection (5). Section 643(5)(a) the proposed moratorium has a reasonable prospect of achieving its aim; Section 643(5)(b) the company is likely to have sufficient funds available to it during the proposed moratorium to enable it to carry on its business; and Section 643(5)(c) deleted by Act No. 1 of 2021 . Section 643(6) In forming an opinion on the matters referred to in subsection (5), the monitor is entitled to rely on the information contained in the document and statement submitted under subsection (2), and provided in accordance with subsection (4), unless that monitor has reason to doubt its accuracy. Section 643(7) The reference in subsection (5)(b) to the company's business is to that business as the company proposes to carry on during the proposed moratorium. [Act No. 1 of 2021 , s. 19] - 644 Verify source ↗
COMPANY VOLUNTARY ARRANGEMENTS - 644. What directors have to do to obtain moratorium
Directors must provide the documents and statements listed in Section 644(1) to obtain a moratorium, including eligibility statement, monitor's consent, prospects of achieving aims, funds availability during the moratorium, and other financial information specified by regulations.
Section 644. What directors have to do to obtain moratorium Section 644(1)(a) the documents referred to in section 643(2)(a); Section 644(1)(b) a statement to the effect that the company is eligible for a moratorium and the basis of that eligibility; Section 644(1)(c) a statement from the monitor that the monitor has consented to act as monitor of the moratorium; Section 644(1)(d) the proposed moratorium has a reasonable prospect of achieving its aims; and Section 644(1)(d)(i) the proposed moratorium has a reasonable prospect of achieving its aims; and Section 644(1)(d)(ii) the company is likely to have sufficient funds available to it during the proposed moratorium to enable it to carry on its business; and Section 644(1)(e) a statement providing such other information (if any) with respect to the company's financial position as is specified in the insolvency regulations for the purposes of this section. Section 644(2) The reference in subsection (1)(d)(ii) to the company's business is to the business as proposed to be carried on by the company during the proposed moratorium. [Act No. 1 of 2021 , s. 20] - 645 Verify source ↗
COMPANY VOLUNTARY ARRANGEMENTS - 645. Duration of moratorium
A moratorium begins when the documents specified in section 644(1) are lodged with the Court and generally ends after thirty days from and including the day it takes effect, subject to extension under section 669; if the provisional supervisor fails to convene either meeting within the required period the moratorium ends at the end of the last day of that period, and a moratorium extended under section 669 ends at the end of the day to which it is extended.
Section 645. Duration of moratorium Section 645(1) A moratorium takes effect when the documents specified in section 644(1) are lodged with the Court. Section 645(2) A moratorium ends after thirty days from and including the day on which the moratorium takes effect, unless the moratorium period is extended under section 669 . Section 645(3) Deleted by ActNo. 1 of 2021. Section 645(4) If the provisional supervisor fails to convene either meeting within the required period, the moratorium ends at the end of the last day of that period. Section 645(5) A moratorium that is extended or further extended under section 669 ends at the end of the day to which it is extended or further extended. Section 645(6) Deleted by ActNo. 1 of 2021. Section 645(7) Deleted by ActNo. 1 of 2021. Section 645(8) The insolvency regulations may increase or reduce the period specified in subsection (2). [Act No. 1 of 2021 , s. 21] - 646 Verify source ↗
COMPANY VOLUNTARY ARRANGEMENTS - 646. What happens when moratorium takes effect
When a moratorium takes effect for a company, the company's directors must immediately notify the monitor.
Section 646. What happens when moratorium takes effect Section 646(1) When a moratorium takes effect in respect of a company, the directors of the company shall immediately give notice of that fact to the monitor. Section 646(2) If subsection (1) is not complied with, each of the directors who is in default commits an offence and on conviction is liable to a fine not exceeding five hundred thousand shillings. Section 646(3) If, after being convicted of an offence under subsection (2), the directors continue to fail to given the required notice to the monitor, each of the directors who is in default commits a further offence on each day on which the failure continues and on conviction is liable to a fine not exceeding fifty thousand shillings for each such offence. [Act No. 1 of 2021 , s. 22] - 647 Verify source ↗
COMPANY VOLUNTARY ARRANGEMENTS - 647. Duty of monitor to publish and give notice that moratorium has taken effect
A monitor must publish and notify that a moratorium has taken effect (publication in Gazette, newspapers, website if any), notify certain creditors, and lodge a copy with the Registrar; failure without reasonable excuse is an offence with fines.
Section 647. Duty of monitor to publish and give notice that moratorium has taken effect Section 647(1)(a) once in the Gazette ; Section 647(1)(a)(i) once in the Gazette ; Section 647(1)(a)(ii) once in at least two newspapers circulating in the area in which the company has its principal place of business in Kenya; and Section 647(1)(a)(iii) on the company's website (if any), Section 647(1)(b) give a notice to the effect that the moratorium has taken effect to any creditor of the company who has applied for a liquidation order against the company before the coming into effect of the moratorium; and Section 647(1)(c) lodge a copy of the notice with the Registrar for registration. Section 647(2) A monitor who, without reasonable excuse, fails to comply with a requirement of subsection (1) commits an offence and on conviction is liable to a fine not exceeding two hundred thousand shillings. Section 647(3) If, after being convicted of an offence under subsection (2), a monitor continues to fail to comply with the relevant requirement, the monitor commits a further offence on each day on which the failure continues and on conviction is liable to a fine not exceeding twenty thousand shillings for each such offence. [Act No. 1 of 2021 , s. 23] - 648 Verify source ↗
COMPANY VOLUNTARY ARRANGEMENTS - 648. Notification of end of moratorium to be given by monitor
A monitor must give notice that a moratorium has ended by publishing in the Gazette (and where specified, newspapers or the company's website), notify certain creditors, and lodge a copy with the Registrar; failure without reasonable excuse is an offence with fines up to 200,000 shillings and further daily fines up to 20,000 shillings.
Section 648. Notification of end of moratorium to be given by monitor Section 648(1)(a) once in the Gazette ; Section 648(1)(a)(i) once in the Gazette ; Section 648(1)(a)(ii) once in at least two newspapers circulating in area in which the company has its principal place of business in Kenya; and Section 648(1)(a)(iii) on the company's website (if any), Section 648(1)(b) give to any creditor of the company who has applied for a liquidation order against the company before the coming into effect of the moratorium a notice to the effect that the moratorium has ended; and Section 648(1)(c) lodge a copy of the notice with the Registrar for registration. Section 648(2) A monitor who, without reasonable excuse, fails to comply with a requirement of subsection (1) commits an offence and on conviction is liable to a fine not exceeding two hundred thousand shillings. Section 648(3) If, after being convicted of an offence under subsection (2), a monitor continues to fail to comply with the relevant requirement, the monitor commits a further offence on each day on which the failure continues and on conviction is liable to a fine not exceeding twenty thousand shillings for each such offence. [Act No. 1 of 2021 , s. 24] - 649 Verify source ↗
COMPANY VOLUNTARY ARRANGEMENTS - 649. Effect of moratorium on creditors and others
During the moratorium certain insolvency steps are restricted, including that the Court may not make an order for the liquidation of the company, and when the Court gives approval it may impose conditions.
Section 649. Effect of moratorium on creditors and others Section 649(1)(a) an application for liquidation of the company may not be made; Section 649(1)(b) only with the consent of the monitor or with the approval of the Court; and Section 649(1)(b)(i) only with the consent of the monitor or with the approval of the Court; and Section 649(1)(b)(ii) if the Court gives approval, subject to such conditions as the Court may impose; Section 649(1)(c) a resolution for the liquidation of the company has no effect; Section 649(1)(d) the Court may not make an order for the liquidation of the company; Section 649(1)(e) an application for an administrator to be appointed in respect of the company may not be made and if made is of no effect; Section 649(1)(f) an administrator of the company may not be appointed under section 534 or 541 ; Section 649(1)(fa) an administrative receiver of the company may not be appointed; Section 649(1)(g) only with the approval of the Court; and Section 649(1)(g)(i) only with the approval of the Court; and Section 649(1)(g)(ii) if the Court gives approval, subject to such conditions as the Court may impose; Section 649(1)(h) only with the approval of the Court; and Section 649(1)(h)(i) only with the approval of the Court; and Section 649(1)(h)(ii) if the Court gives approval, subject to such conditions as the Court may impose; and Section 649(1)(i) only with the approval of the Court; and Section 649(1)(i)(i) only with the approval of the Court; and Section 649(1)(i)(ii) if the Court gives approval, subject to such conditions as the Court may impose. Section 649(2) If an application (other than an excepted application), for the liquidation of the company has been made before the beginning of the moratorium, section 429 does not apply in relation to a disposition of property, transfer of shares or alteration in status made during the moratorium. Section 649(3) Subsection (1)(a) does not apply to an excepted application and, if such an application has been made before the beginning of the moratorium or is made during the moratorium, subsections (1)(b) and (c) do not apply to or with respect to the hearing of the application. Section 649(4)(a) section 426; or Section 649(4)(b) a provision of any other enactment prescribed by the insolvency regulations for the purposes of this section. - 650 Verify source ↗
COMPANY VOLUNTARY ARRANGEMENTS - 650.[Deleted by ActNo. 13 of 2017, Sch.]
Section 650 deleted by ActNo. 13 of 2017, Sch.
Section 650.[Deleted by ActNo. 13 of 2017, Sch.] - 651 Verify source ↗
COMPANY VOLUNTARY ARRANGEMENTS - 651. Security not to be enforced unless it would benefit the company
Security given by a company during a moratorium may be enforced only if there were reasonable grounds to believe the security would benefit the company at that time.
Section 651. Security not to be enforced unless it would benefit the company Section Security given by a company at a time when a moratorium has effect in relation to the company can be enforced only if, at that time, reasonable grounds existed for believing that the security would benefit the company. [Act 1 of 2021 , s. 27] - 652 Verify source ↗
COMPANY VOLUNTARY ARRANGEMENTS - 652. Application of sections 653 to 657 to company in respect of which a moratorium has effect
Sections 653 to 657 apply to a company in respect of which a moratorium currently has effect.
Section 652. Application of sections 653 to 657 to company in respect of which a moratorium has effect Section 652(1) Sections 653 to 657 apply to a company in respect of which a moratorium currently has effect. Section 652(2)(a) render the transaction void; or Section 652(2)(b) make it unenforceable against the company. - 653 Verify source ↗
COMPANY VOLUNTARY ARRANGEMENTS - 653. Company invoices and other documents to state monitor's name and that moratorium has effect
Company invoices and other documents must state the monitor's name and include a statement that the moratorium has effect in respect of the company.
Section 653. Company invoices and other documents to state monitor's name and that moratorium has effect Section 653(1)(a) the monitor's name; and Section 653(1)(b) a statement that the moratorium has effect in respect of the company. Section 653(2) If the company fails to comply with subsection (1), the company, and each officer of the company who is in default, commit an offence and on conviction are each liable to a fine not exceeding five hundred thousand shillings. [Act No. 1 of 2021 , s. 28] - 654 Verify source ↗
COMPANY VOLUNTARY ARRANGEMENTS - 654. Restrictions on company obtaining credit during moratorium
Companies under a moratorium must not obtain credit exceeding twenty-five thousand shillings from persons not informed of the moratorium; breaching this is an offence for the company and defaulting officers, with fines and possible imprisonment.
Section 654. Restrictions on company obtaining credit during moratorium Section 654(1) A company in respect of which a moratorium has effect may not obtain credit exceeding twenty-five thousand shillings from a person who has not been informed that a moratorium has effect in respect of the company. Section 654(2)(a) if goods are bailed to the company under a credit purchase transaction; Section 654(2)(b) if the company is paid in advance (whether in money or otherwise) for the supply of goods or services. Section 654(3) If the company obtains credit in contravention of subsection (1), the company, and each officer of the company who is in default, commit an offence. Section 654(4) A company that is found guilty of an offence under subsection (3) is liable on conviction to a fine not exceeding two million shillings. Section 654(5) An officer of a company who is found guilty of an offence under subsection (3) is liable on conviction to a fine not exceeding one million shillings or to imprisonment for a term not exceeding two years, or to both. Section 654(6) The insolvency regulations may increase or reduce the amount specified in subsection (1). - 655 Verify source ↗
COMPANY VOLUNTARY ARRANGEMENTS - 655. Restrictions on disposal of property and making payments by company
Companies may dispose of property only where the statutory conditions are met; disposals in contravention are offences for the company and defaulting officers with fines and possible imprisonment for officers.
Section 655. Restrictions on disposal of property and making payments by company Section 655(1)(a) there are reasonable grounds for believing that the disposal will benefit the company; and Section 655(1)(b) the disposal is approved by the monitor. Section 655(2)(a) made in the ordinary course of the company's business; or Section 655(2)(b) made in accordance with an order of the Court. Section 655(3) If a company disposes of any of its property in contravention of subsection (1), the company, and each officer of the company who is in default, commit an offence. Section 655(4) A company that is found guilty of an offence under subsection (3) is liable on conviction to a fine not exceeding two million shillings. Section 655(5) An officer of a company who is found guilty of an offence under subsection (3) is liable on conviction to a fine not exceeding one million shillings or to imprisonment for a term not exceeding two years, or to both. [Act No. 1 of 2021 , s. 29] - 656 Verify source ↗
COMPANY VOLUNTARY ARRANGEMENTS - 656. Restriction on company paying debts and other liabilities
A company must not make payments of debts and other liabilities except where there are reasonable grounds that the payment will benefit the company and the payment is approved by the monitor, or where required by section 657(6) or made in accordance with a Court order.
Section 656. Restriction on company paying debts and other liabilities Section 656(1)(a) there are reasonable grounds for believing that the payment will benefit the company; and Section 656(1)(b) the payment is approved by the monitor. Section 656(2)(a) required by section 657 (6); or Section 656(2)(b) made in accordance with an order of the Court. Section 656(3) If a company makes a payment in contravention of subsection (1), the company, and each officer of the company who is in default, commit an offence. Section 656(4) A company that is found guilty of an offence under subsection (3) is liable on conviction to a fine not exceeding one million shillings. Section 656(5) An officer of a company who is found guilty of an offence under subsection (3) is liable on conviction to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding twelve months, or to both. [Act No. 1 of 2021 , s. 30] - 657 Verify source ↗
COMPANY VOLUNTARY ARRANGEMENTS - 657. Circumstances in which company may dispose of property and goods that are subject to a security or held under credit purchase transaction
A company may transfer or dispose of secured property or goods under credit purchase if the security-holder or owner consents or the Court approves; if the Court approves, directors must file the order with the Registrar within 14 days, and failure to do so is an offence with fines.
Section 657. Circumstances in which company may dispose of property and goods that are subject to a security or held under credit purchase transaction Section 657(1)(a) property of the company that is subject to a security; and Section 657(1)(b) goods that are in the possession of the company under a credit purchase transaction. Section 657(2)(a) the holder of the security consents; or Section 657(2)(b) the Court gives its approval. Section 657(3)(a) the owner of the goods consents; or Section 657(3)(b) the Court gives its approval. Section 657(4) Subsection (5) applies to property of a company that is subject to a security that, as created, was a floating charge. Section 657(5) If property of a company to which this subsection applies is transferred under subsection (2), the holder of the security has the same priority in respect of any property of the company directly or indirectly representing the transferred property as the holder would have had in respect of the property that is subject to the security. Section 657(6)(a) the transfer under subsection (2) of property that is subject to a security other than a security that, as created, was a floating charge; and Section 657(6)(b) the disposal under subsection (3) of goods that are in the possession of the company under a credit purchase transaction. Section 657(7)(a) that the net proceeds of the transfer or disposal are to be applied; and Section 657(7)(b) if those proceeds are less than such amount as may be agreed, or determined by the Court, to be the net amount that would be realised on a sale of the property or goods in the open market by a willing vendor, that an amount necessary to make good the deficiency is to be applied, Section 657(8)(a) the net proceeds of the disposal; and Section 657(8)(b) if subsection (7)(b) applies, the amount referred to in that paragraph, Section 657(9) If the Court gives approval for a transfer or disposal under subsection (2) or (3), the directors shall, within fourteen days after approval is given, lodge with the Registrar for registration a copy of the order giving approval. Section 657(10) If the directors fail to comply with subsection (9), each of them who is in default commits an offence and on conviction is liable to a fine not exceeding two hundred thousand shillings. Section 657(11) If, after any of the directors has been convicted of an offence under subsection (10), the directors continue to fail to lodge the required copy with the Registrar for registration, each of the directors who is in default commits a further offence on each day on which the failure continues and on conviction is liable to a fine not exceeding twenty thousand shillings for each such offence. [Act No. 1 of 2021 , s. 31] - 658 Verify source ↗
COMPANY VOLUNTARY ARRANGEMENTS - 658. Monitor's to monitor activities of company during moratorium
During the moratorium the monitor must monitor the company's activities to see if it will have sufficient funds; directors must provide information to the monitor on request; the monitor may rely on that information unless it has reason to doubt it; directors who fail to provide information commit an offence liable to fines.
Section 658. Monitor's to monitor activities of company during moratorium Section 658(1) During the moratorium, the monitor is responsible for monitoring the company's activities in order to ascertain whether the company is likely to have sufficient funds available to it during the remainder of the moratorium to enable it to continue to carry on its business. Section 658(2) On being requested to do so by the monitor, the directors of the company shall provide to that monitor information necessary to enable that monitor to comply with subsection (1). Section 658(3) In ascertaining the matters referred to in subsection (1), the monitor is entitled to rely on the information provided by the directors under subsection (2) unless that monitor has reason to doubt its accuracy. Section 658(4) The reference in subsection (1) to the company's business is to that business as proposed to be carried on by the company during the remainder of the moratorium. Section 658(5) If the directors fail to comply with a request made by the monitor under subsection (2), each of the directors who is in default commits an offence and on conviction is liable to a fine not exceeding five hundred thousand shillings. Section 658(6) If, after a director has been convicted of an offence under subsection(5), the directors continue to fail comply with the request or another such request, each of the directors who is in default commits a further offence on each day on which the failure continues and on conviction is liable to a fine not exceeding fifty thousand shillings for each such offence. [ Act No. 1 of 2021 , s. 33 ] - 659 Verify source ↗
COMPANY VOLUNTARY ARRANGEMENTS - 659. Withdrawal of monitor's consent to act
A monitor may withdraw consent to act for specified reasons; if consent is withdrawn the moratorium ends; the monitor must notify the company and known creditors and lodge the notice with the Registrar; failing to give the notice is an offence with fines.
Section 659. Withdrawal of monitor's consent to act Section 659(1)(a) the monitor concludes that the company will not have sufficient funds available to it during the remainder of the moratorium to enable it to continue to carry on its business; Section 659(1)(b) that supervisor becomes aware that the company was not, on the lodgement date, eligible for a moratorium; or Section 659(1)(c) the directors fail to comply with their duty under section 658 (2). Section 659(2) The reference in subsection (1)(a) to the company's business is to the business that the company proposes to carry on during the remainder of the moratorium. Section 659(3) If the monitor's consent is withdrawn, the moratorium ends. Section 659(4)(a) give to the company and any creditor of whose claim that monitor is aware a notice of withdrawal of consent together with a statement of reasons for the withdrawal; and Section 659(4)(b) lodge a copy of that notice with the Registrar for registration. Section 659(5) Deleted by ActNo. 1 of 2021 Section 659(6) A monitor who, without reasonable excuse, fails to comply with a requirement of subsection (4) commits an offence and on conviction is liable to a fine not exceeding two hundred thousand shillings. Section 659(7) If, after being convicted of an offence under subsection (6), a monitor continues to fail to comply with the relevant requirement, that monitor commits a further offence on each day on which the failure continues and on conviction is liable to a fine not exceeding twenty thousand shillings for each such offence. [Act No. 1 of 2021 , s. 34] - 660 Verify source ↗
COMPANY VOLUNTARY ARRANGEMENTS - 660. Creditors and others may challenge monitor's conduct during moratorium by application made to the Court
Creditors, company directors, members or other persons affected by a moratorium who are dissatisfied with the monitor's acts, omissions or decisions may apply to the Court for an order under subsection (3).
Section 660. Creditors and others may challenge monitor's conduct during moratorium by application made to the Court Section 660(1) Any creditor, director or member of the company, or any other person affected by a moratorium, who is dissatisfied with an act, omission or decision of the monitor during the moratorium may apply to the Court for an order under subsection (3). Section 660(2) An application may be made during the moratorium or after it has ended. Section 660(3)(a) an order confirming, reversing or modifying the act or decision complained of; Section 660(3)(b) an order giving directions to the monitor with respect to the conduct of the moratorium; or Section 660(3)(c) such other order as it considers appropriate. Section 660(4) An order under subsection (3) may (among other things) end the moratorium and, if it does, it may make such consequential provision as the Court considers necessary. [Act No. 1 of 2021 , s. 35.] - 661 Verify source ↗
COMPANY VOLUNTARY ARRANGEMENTS - 661. Creditor may pursue claim against monitor for loss
Allows a creditor to apply to pursue a claim against the monitor for loss in specified circumstances and lets the Court make orders about pursuing such claims.
Section 661. Creditor may pursue claim against monitor for loss Section 661(1)(a) as a result of any act, omission or decision of the monitor during the moratorium, the company has sustained loss; and Section 661(1)(b) the company does not intend to pursue any claim it may have against that monitor, Section 661(2) Such an application may be made during the moratorium or after it has ended. Section 661(3)(a) an order directing the company to pursue any claim against the monitor; Section 661(3)(b) an order authorising any creditor to pursue such a claim in the name of the company; or Section 661(3)(c) such other order with respect to such a claim as it considers appropriate, Section 661(4)(a) impose conditions on any authority given to pursue a claim; Section 661(4)(b) direct the company to assist in pursuing a claim; Section 661(4)(c) give directions with respect to the distribution of money or other property received as a result of pursuing a claim; Section 661(4)(d) end the moratorium and, if it does, make such consequential provisions as the Court considers necessary. Section 661(5) When hearing the application, the Court shall have regard to the interests of the members and creditors of the company as a whole. [Act No. 1 of 2021 , s. 36]
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