In re Jonathan Karanja (Insolvency Cause E004 of 2022) [2024] KEHC 4521 (KLR) (Commercial and Tax) (8 March 2024) (Ruling)
Neutral citation:
[2024] KEHC 4521 (KLR)
Republic of Kenya
Insolvency Cause E004 of 2022
DO Chepkwony, J
March 8, 2024
Ruling
1.What is before the court for determination is the Notice of Motion application dated 22nd July, 2022 filed under Section 304, 305 and 306, all of the Insolvency Act 2016 seeking the following orders:
2.The Application is based on the Supporting Affidavit of Jonathan Karanja sworn on July 22, 2022 and the grounds as set out on its face are as follows:-
3.The Application was unopposed but the court still called has a duty to consider the merits thereof. The Applicant filed Submissions dated 2nd December, 2022 which the court has taken into considered.
4.According to the Applicant, he is unable to meet his financial obligations and has filed these proceedings seeking to be adjudged bankrupt. He holds that he made full disclosure of his assets and liabilities and has come to court with clean hands. The Applicant holds that he needs protection from the execution process by the court as he is not in financial position to offset the debt which is quite substantial.
5.It is the Applicant’s contention that the order for imprisonment to civil jail is a drastic move meant to humiliate him as a debtor but it is not a means of recovering debts. The Applicant holds that the creditor must show that they have exhausted all other means to recover the debt before opting for imprisonment to civil jail.
Analysis and Determination
6.Having read through the grounds set out in the application and perused therecord herein, I find the issue for determination being whether the orders being sought in the application can be granted as prayed?
7.This application is premised on the provision of sections 304, 305 and 306, all of the Insolvency Act which provide as follows;Section 304 provides that:-Section 305 goes on to provide that:-
8.In the case of Re: Joyce Wanjiku (Debtor) [2020]eKLR, where the court was dealing with similar circumstances , it held as follows,(a)that the debtor intends to make a proposal under this Division;(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;(c)that no previous application has been made by the debtor for an interim order during the twelve months immediately preceding that day; and(d)that the supervisor designated under the debtor's proposal is willing to act in relation to the proposal.”
9.In view of the findings in the above cited case, this court finds that the Applicant has satisfied the conditions set out under Section 306 of the Act in that he intends to make a proposal and hence his present Petition to be adjudged bankrupt.
10.In the circumstances, this court finds that the Notice of Motion application dated July 22, 2022 has merits and the same is allowed as follows:-a.That the Decree and Warrant of Arrest issued in Nairobi HCC. No.301 of 2014 on May 16, 2022 be and are hereby lifted and set aside.b.That there be a Stay of Execution on or any other action or other legal action against Warrant of Arrest issued in the Nairobi HCCC. No.301 of 2014 issued on 16th May, 2022.c.That an Official Receiver be appointed as a supervisor of the Debtor’s proposed composition/scheme of arrangement.
It is so ordered.
RULING DATED AND SIGNED AT KIAMBU THIS 15TH__ DAY OF ……FEBRUARY……__, 2024.********D. O. CHEPKWONYJUDGERULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 8TH__ DAY OF MARCH__ , 2024.ALFRED MABEYAJUDGERULING HCCOMMIC NO.E004 OF 2022 - Page 9 of9