CORPORATE INSOLVENCY UNDER THE 2015 INSOLVENCY ACT

CPA SECTION 3: CORPORATE INSOLVENCY UNDER THE 2015 INSOLVENCY ACT

Corporate Insolvency in Kenya was previously governed under the Companies Act, CAP 486 Laws of Kenya. However in September 2015, the Insolvency Act regulates this feature of company law.

Unlike the previous legislation, the Insolvency Act seeks to redeem insolvent companies through administration as opposed to liquidation. The Act focuses more on assisting insolvent natural persons, unincorporated entities and insolvent corporate bodies whose financial position is redeemable to continue operating as going concerns so that they may be able to meet their financial obligations to the satisfaction of their creditors.

The consolidation of the laws with respect to insolvency is aimed at not only providing for and regulating the liquidation of incorporated and unincorporated bodies  but also to enable their affairs to be managed for the benefit of their creditors by providing alternatives to bankruptcy and liquidation.

Meaning of Insolvency

Insolvency means that a company is unable to pay its debts. Section 384 of the Insolvency Act 2015 provides that a company is unable to pay its debts:

a)       if a creditor (by assignment or otherwise) to whom the company is indebted for KES 100,000 or more has served on the company, by leaving it at the company’s registered office, a written demand requiring the company to pay the debt and the company has for 21 days afterwards failed to pay the debt or to secure or compound for it to the reasonable satisfaction of the creditor;

b)      if execution or other process issued on a judgment, decree or order of any court in favour of a creditor of the company is returned unsatisfied in whole or in part; or

c)       if it is proved to the satisfaction of the Court that the company is unable to pay its debts as they fall due.

Section 384(2) provides that a company is also unable to pay its debts if it is proved to the satisfaction of the Court that the value of the company’s assets is less than the amount of its liabilities (including its contingent and prospective liabilities).

Liquidation is the dissolution or winding up of a company. It is the legal process by which a company’s management is removed from directors and placed under a liquidator for purposes of collecting the assets, realizing them, ascertaining and making good liabilities and distributing the remainder, if any, to members.

 

TYPES OF WINDING UP

There are three different types of liquidation:

a)       Compulsory liquidation

b)      Member’s voluntary liquidation

c)       Creditor’s voluntary liquidation

The parties most likely to be involved in the decision to liquidate are:

a)       The directors

b)      The creditors

c)       The members

The directors are best placed to know the financial position and difficulty that the company is in.

The creditors may become aware that the company is in financial difficulty when their invoices don’t get paid.

The members are likely to be the last people to know that the company is in financial difficulty as they rely on the directors to tell them.

If a creditor has sufficient grounds they may apply to the court for the compulsory winding up of the company. Creditors may also be closely involved in a voluntary winding up if the company is insolvent when the members decide to wind the company up.

The members may decide to wind the company voluntarily in two cases:

         i.            Member’s voluntary winding up (if the company is solvent)

       ii.            Creditor’s voluntary winding up (if the company is insolvent)

VOLUNTARY LIQUIDATION

Section 393 provides that a company may be liquidated voluntarily:

a)       when the period (if any) fixed for the duration of the company by the articles expires, or the event (if any) occurs, on the occurrence of which the articles provide that the company is to be dissolved, and the company in general meeting has passed a resolution providing for its voluntary liquidation; or

b)       if the company resolves by special resolution that it be liquidated voluntarily.

Section 394 provides that within 14 days after a company has passed a resolution for its voluntary liquidation, it shall publish a notice setting out the resolution:

a)       once in the Gazette;

b)      once in at least 2 newspapers circulating in the area in which the company has its principal place of business in Kenya; and

c)       on the company’s website (if any).

Section 395 provides that the voluntary liquidation of a company commences when the special resolution for voluntary liquidation is passed. On and after the commencement of voluntary liquidation of a company, the company shall cease to carry on its business, except in so far as may be necessary for its beneficial liquidation.

Section 397 provides that the following are void if made after the commencement of a voluntary liquidation of a company:

a)       any transfer of the company’s shares (other than a transfer made to or with the sanction of the liquidator);

b)      an alteration in, or an attempt to alter, the status of the company’s members.

Member’s voluntary liquidation

This is the winding up of a solvent company.

A voluntary winding up is a members' voluntary winding up only if the directors make and deliver to the Registrar a declaration of solvency as provided for under section 398. This is a statutory declaration that the directors have made full enquiry into the affairs of the company and are of the opinion that it will be able to pay its debts, within a specified period not exceeding 12 months.

a)       The declaration is made by all the directors or, if there are more than two directors, by a majority of them.

b)      The declaration includes a statement of the company's assets and liabilities as at the latest practicable date before the declaration is made.

c)       The declaration must be:

                                 i.            Made not more than 5 weeks before the resolution to wind up is passed, and

                               ii.            Delivered to the Registrar within 14 days after the meeting.

If the liquidator later concludes that the company will be unable to pay its debts they must call a meeting of creditors and lay before them a statement of assets and liabilities.

It is a criminal offence punishable by fine or imprisonment for a director to make a declaration of solvency without having reasonable grounds for it. If the company proves to be insolvent they will have to justify their previous declaration or be punished.

In a members' voluntary winding up the creditors play no part since the assumption is that their debts will be paid in full. Section 401 provides that the liquidator shall call special and annual general meetings of contributories (members) to whom they report:

a)       Within 3 months after each anniversary of the commencement of the winding up the liquidator must call a meeting and lay before it an interim account of his transactions during the year.

b)      When the liquidation is complete the liquidator calls a meeting to lay before it his final accounts.

After holding the final meeting as provided for under section 402 the liquidator sends a copy of his accounts to the Registrar who dissolves the company 3 months later by removing its name from the register of companies.

Creditor’s voluntary liquidation

If no declaration of solvency is made and delivered to the Registrar the liquidation proceeds as a creditors' voluntary winding up even if in the end the company pays its debts in full.

It is when a company being wound up voluntarily is insolvent.

Section 403 provides that on forming the view that the company is or will be unable to pay its debts, the liquidator shall:

1.       Convene a meeting of creditors on a date not later than 30 days after the day on which the contributory formed that opinion;

2.       Send notices of the creditors’ meeting to the creditors by post at least 7 days before the day on which that meeting is to be held;

3.        Publish notice of the creditors’ meeting once in the Gazette AND once in at least two newspapers circulating in the area in which the company has its principal place of business in Kenya; and  on the company’s website (if any); and

4.       Advertise the meeting in such other manner and place as the liquidator considers desirable in the interests of the creditors;

5.       During the period before the day on which the creditors’ meeting is to be held, provide creditors, free of charge, with such information concerning the affairs of the company as they may reasonably require; and

6.       Specify in the notice of the creditors’ meeting the duty imposed by paragraph (e).

The liquidator shall also prepare a statement setting out the financial position of the company, lay that statement before the creditors’ meeting; and attend and preside at that meeting. The statement should specify:

          i.            the prescribed details of the company’s assets, debts and liabilities;

         ii.            the names and addresses of the company’s creditors;

       iii.            the securities (if any) respectively held by them and the dates on which they were respectively given; and

       iv.            such other information (if any) as may be prescribed by the insolvency regulations;

To commence a creditors' voluntary winding up the directors convene a general meeting of members to pass a special resolution to wind-up the insolvent company (private companies may pass a written resolution with a 75% majority). They must also convene a meeting of creditors, giving at least 7 days’ notice of this meeting.

The meeting of members is held first and its business is as follows:

·       To resolve to wind up

·       To appoint a liquidator, and

·       To nominate up to 5 representatives to be members of the Liquidation Committee.

The creditors' meeting should preferably be convened on the same day but at a later time than the members' meeting, or on the next day, but in any event within 14 days of it.

One of the directors presides at the creditors' meeting and lays before it a full statement of the company's affairs and a list of creditors with the amounts owing to them. The meeting may nominate a liquidator and up to 5 representatives to be members of the liquidation committee. This is provided for under section 409.

Section 408 provides that if the creditors nominate a different person to be liquidator, their choice prevails over the nomination by the members.

Of course, the creditors may decide not to appoint a liquidator at all. They cannot be compelled to appoint a liquidator, and if they do fail to appoint one it will be the members' nominee who will take office.

Section 411 provides that on the appointment of a liquidator, all the powers of the directors cease, except so far as the liquidation committee, or if there is no such committee, the creditors, sanction their continuance. i.e. directors become functus officio.

However even if creditors do appoint a liquidator there is a period of up to two weeks before the creditors' meeting takes place at which they will actually make the appointment. In the interim it will be the members' nominee who takes office as liquidator.

In either case the presence of the members' nominee as liquidator has been exploited in the past for the purpose known as 'centrebinding'.

In Re Centrebind Ltd (1966) the directors convened a general meeting, without making a statutory declaration of solvency, but failed to call a creditors' meeting for the same or the next day. The penalty for this was merely a small default fine. The liquidator chosen by the members had disposed of the assets before the creditors could appoint a liquidator. The creditors' liquidator challenged the sale of the assets (at a low price) as invalid. It was held that the first liquidator had been in office when he made the sale and so it was a valid exercise of the normal power of sale.

In a 'centrebinding' transaction the assets are sold by an obliging liquidator to a new company formed by the members of the insolvent company. The purpose is to defeat the claims of the creditors at minimum cost and enable the same people to continue in business until the next insolvency supervenes. The Government has sought to limit the abuses during the period between the members' and creditors' meetings. The powers of the members' nominee as liquidator are now restricted to:

1.       Taking control of the company's property

2.       Disposing of perishable or other goods which might diminish in value if not disposed of immediately, and

3.       Doing all other things necessary for the protection of the company's assets.

If the members' liquidator wishes to perform any act other than those listed above, he will have to apply to the court for leave.

Provisions applying to both kinds of Voluntary Liquidation

Section 415 provides that on the liquidation, the company’s property:

a)       are to be applied in satisfaction of the company’s liabilities equally and without preference; and

b)      subject to that application, are, unless the company’s articles otherwise provide, to be distributed among the members according to their rights and interests in the company.

Section 416 provides that the Court may appoint a liquidator if for any reason there is no liquidator or the liquidator is unable to act.

The Court may, on cause shown, remove a liquidator and appoint another one.

Only an authorized insolvency practitioner is eligible for appointment.

The acts of a person appointed by the Court as a liquidator of a company are valid despite any defect in the person’s appointment or qualifications.

Within 7 days after being appointed as liquidator of a company, the liquidator shall publish a notice of the liquidator’s appointment

 

 

COMPULSORY LIQUIDATION BY THE COURT

Section 423 of the Insolvency Act provides that only the High Court has jurisdiction to supervise the liquidation of companies registered in Kenya.

Section 424 provides that a company may be liquidated by the Court if:

a)       the company has by special resolution resolved that the company be liquidated by the Court;

b)       being a public company that was registered as such on its original incorporation:

                                  i.            the company has not been issued with a trading certificate under the Companies Act, 2015; and

                                 ii.            more than 12 months has elapsed since it was so registered;

c)       the company does not commence its business within 12 months from its incorporation or suspends its business for a whole year;

d)      except in the case of a private company limited by shares or by guarantee, the number of members is reduced below 2;

e)      the company is unable to pay its debts;

f)        the Court is of the opinion that it is just and equitable that the company should be liquidated.

A company may also be liquidated by the Court on an application made by the Attorney General under section 425(6). If, in relation to a company, it appears to the Attorney General that it would be in the public interest or just and equitable for the company to be liquidated:

a)       from a report made or information obtained from investigations carried out or inspection of documents produced under the Companies Act, 2015;

b)       from a report made, or information obtained, by the Capital Markets Authority under the Capital Markets Act;

c)       from information provided by the Registrar; or

d)      as a result of the company or its directors having been convicted of an offence involving fraudulent conduct, that it would be in the public interest for the company to be liquidated,

Section 425 provides that an application/petition to the Court for the liquidation of a company may be made any or all of the following:

a)       the company or its directors;

b)      a creditor or creditors (including any contingent or prospective creditor or creditors);

c)       a contributory or contributories of the company;

d)      a provisional liquidator or an administrator of the company;

e)      if the company is in voluntary liquidation—the liquidator.

If the court issues a liquidation order they may appoint the official receiver to oversee the liquidation process. Section 434 identifies the obligations of the official receiver as follows:

a)       if the company has failed—to discover why the company failed; and

b)      generally, to investigate the promotion, formation, business, dealings and affairs of the company, and to make such report (if any) to the Court as the Official Receiver considers appropriate.

The official receiver is authorized by section 435 to carry out a public examination of any officers of the company involved in promotion, formation and management of the company. A person who, without reasonable excuse, fails at any time to attend the person’s public examination under section 435 is guilty of a contempt of Court and is liable to be punished accordingly.

Winding up on the Just and Equitable Ground

There is no exhaustive list of the circumstances in which a company may be wound up on this ground, however judicial authority shows that a company may be wound up on the just and equitable  ground in the following instances:

1.       Fraudulent / illegal purpose

In Re: Thomas Edwards Brinsmead and Sons Ltd, it was held that a company would be wound up on this ground. If it is established that it was formed to pursue a fraudulent or illegal purpose the petitioner must prove the fraud or illegality.

2.       Failure of substratum

If the principal or paramount purpose for which the company is incorporated (i.e. its substratum) fails or is no longer attainable it becomes just and equitable to wind up the company. This was the case in Re: German Date Coffee Company Ltd where the company’s principal object was to acquire a German patent to manufacture coffee from dates as a substitute which it failed to acquire and a shareholder petitioned for its winding up. It was held that it was just and equitable to wind up the company. A similar holding was made in Re: Bakin Consolidated Oil Fields Ltd where a company had been formed to take over 2 existing oil companies in Russia but the oil industry was nationalized before the takeover.

3.       ‘Bubble companies’

In Re: London and Country Coal Company Ltd, it was held that it is just and equitable to wind up a company if it was established that there was no bonafide intention on the directors to pursue the declared objects or pursue them in the proper manner.

4.       Oppression of minority

A company would be wound up on the just and equitable ground if it was proved that its affairs were being conducted in a manner oppressive/prejudicial to the minority.  The petitioner must prove the oppression or oppressive conduct in the affairs of the company and that the same was continuous and it affected members in their capacity as members (members qua members).

5.       Loss of confidence in management

Case law demonstrates that it is just and equitable to wind up a company if member have justifiably lost confidence in its management. The petitioner must prove a consistent course of conduct on the part of the management which justifies the loss of confidence as was the case in Loch V John Blackwood Company Ltd. where after Blackwood’s death his engineering business was converted to a company managed by one of his trustees for the benefit of the 3 beneficiaries of the estate. The business was very profitable but the trustee did not avail to the beneficiaries any information about the company which they were entitled to nor called general meetings. The beneficiaries petitioned for winding up on the grounds of loss of confidence in the management. The Court agreed and granted the winding up order.

6.       Wrongful Exclusion or expulsion from management.

A company would be wound up on the just and equitable ground if it is shown that the petitioner has been unfairly excluded from its management.  This was the case in Re: Westbourne Galleries Company Ltd where a partnership was incorporated to a company but one member was unfairly left out of the board. The directors refused to declare dividend as all the profits of the company were payable to them as directorship allowances. The petitioner argued that the unfair treatment he was subjected to made it just and equitable for the company to be wound up. The Court granted the order. In addition a winding up order may be made if a director is unfairly expelled from the board or excluded from participating in board meetings as was the case in Re: Lundie Bros Co. Ltd where the petitioner who was the chairman of the board held 10,000 of the 20,000 shares of the company. The balance was held by 2 brothers equally. All members were directors earned £20 a week. The 2 brothers used their voting power on the board to remove the petitioner from his position and reduce his earnings to £2 per week. It was held that it was just and equitable to wind up the company.

7.       Deadlock in management and membership.

It is just and equitable to wind up a company if its membership and management cannot function in any respect due to a deadlock. This may arise where the company’s shares and voting rights are equally divided between 2 persons or groups or persons with irreconcilable differences. This was the case in Re: Yenidje Tobacco Company Ltd, where Rathman and Weinberg who were tobacco dealers merged their businesses to a company and were the only members and directors with equal number of shares and voting rights. The 2 quarreled consistently and could only communicate through the Company Secretary. Rathman sued Weinberg alleging fraud and the 2 made the company lose over £1,000 in a case involving the dismissal of a factory manager. Although the company was making enormous profits, Weinberg petitioned for winding up and the Court was satisfied that it was just and equitable to wind up the company the Court was of the opinion that circumstances which could lead to the winding up of a partnership were applicable in this case.

The Power of the Court after Hearing a Winding up Petition

Upon hearing the winding up petition the Court may:

·       Dismiss it.

·       Adjourn the hearing conditionally or unconditionally.

·       Make any interim orders.

·       Make such order or further order as it may deem fit.

If the petition is based on the company’s failure to hold the statutory meeting or deliver a copy of the statutory report to the Registrar, the Court may in lieu of winding up, order that the meeting be held or the report be delivered to the Registrar.

Effects or consequences of a winding up order

Its effects date backwards to an earlier date than that of the order itself. This is the date of commencement of winding up which is the earlier of:

·       The date of presentation of the winding up petition to the Court; or

·       The date of passage of the resolution for voluntary winding up.

Once the winding up order is made, the following consequences flow:

a)       The company ceases to carry on business except such as may be required for its beneficial winding up.

b)      Any disposition of property of the company including things in action, any transfer of shares or alteration in the status of members is void

c)       Any attachment, distress or execution put in force against the estate or effects of the company is void

d)      Legal proceedings commenced by or against the company are stayed.

e)      Director’s powers become functus officio (unexcercisable)

f)        By virtue of his office the Official Receiver becomes the Provisional Liquidator and if not other person is appointed liquidator by the Court, he becomes the liquidator.

g)       Servants of the company are ipso facto dismissed (by that very fact of winding up order being issued). However those who continue to render services and receive wages are presumed to have entered into a new contract of service with the liquidator

h)      Floating charges of the company crystallize and become fixed.

A winding up order operates in favour of all creditors and contributories as if it was issued on a joint petition of both creditors and contributories. A copy of the winding up order must be delivered to the Registrar for registration.

THE LIQUIDATOR

This term was first incorporated into the Companies Act in 1856. This is the person appointed to realize the company’s assets, ascertain and pay its liabilities and distributes the remainder, if any, to the members. This is a person appointed to wind up the affairs of the company.

Qualifications to act as a Liquidator

The Act does not expressly prescribe the qualification of the holder of the office of liquidator, but expressly disqualifies undischarged bankrupts and body corporate. Additionally, a liquidator has to be a qualified bankruptcy practioner.

Appointment of a Liquidator

His appointment depends on the type of winding up:

a)       In a winding up by the Court, the official receiver is the liquidator or any other person appointed by the Court on application.

b)      In a member’s voluntary winding up, he is appointed by members in the General Meeting.

c)       In a creditor’s voluntary winding up, he may be appointed by:

·       Members

·       Creditors

·       Both creditors and members

·       The Court on application.

Once appointed, a liquidator other than the official receiver must notify his appointment in the Kenya Gazette and is obliged to deliver to the official receiver, such books or information as he may require.

The Legal Position of the Liquidator

The exact position of the liquidator is difficult to define as neither the Companies Act nor case law is clear on this point.

1.       Liquidator as an officer of the Court

If he is appointed by the Court, he is an officer of the Court and must act honestly and impartially. He is answerable to the Court.

 

2.       Liquidator as trustee

He is said to be a trustee for the general body of creditors and not for individual creditors. In the words of Rower J in Knowles V Scott:

“In my judgment the liquidator is not a trustee in the strict sense. No doubt in a sense and for certain purposes a liquidator may fairly enough be regarded as a trustee”

3.       The liquidator as an agent

Case law demonstrates that a liquidator is an agent in a voluntary winding up as long as he is acting within the scope of his authority. In the words of Lawrence J in Stead Hazel V Cooper, a liquidator is an agent of the company.

4.       Liquidator as a fiduciary

Although there is no direct judicial authority for the proportion that a liquidator is a fiduciary, his obligations suggest that he is one e.g. he must act in good faith and avoid conflict of interest.

Duties and Obligations of the Liquidator

1.       He must act bonafide for the benefit of interested parties.

2.       He must exercise unfettered discretion.

3.       He must exercise powers for the particular purpose for which they were given.

4.       He is bound to avoid conflict of interest.

5.       He must exercise discretion personally unless appointed jointly.

6.       He must act honestly and impartially

7.       He must exhibit the degree of care and skill appropriate to the circumstances.

8.       He is bound to secure control of the company’s assets.

9.       He is bound to realize the assets

10.   He must ascertain and pay the company’s debts

11.   He is bound to ensure that minutes of the respective meetings are held.

12.   He is bound to keep proper books of accounts.

13.   He is bound to pay monies received into a separate account for purposes of the winding up.

14.   At least twice a year, he is bound to deliver to the official receiver an account of his receipts and payments.

Powers of the Liquidator Exercisable with Sanction of the Court

1.       To bring or defend any action or other legal proceedings in the name of and on behalf of the company.

2.       To carry on any business of the company as may be necessary for the beneficial winding up.

3.       To appoint an advocate to assist him in the performance of his duties.

4.       To pay any classes of creditors in full.

5.       To make any compromise or arrangement with creditors or persons claiming to be creditors.

6.       To compromise all calls liabilities to calls, debts and other liabilities.

Powers of the Liquidator exercisable without sanction of the Court

1.       To sell moveable and immoveable assets of the company.

2.       To do all such acts and execute deeds in the name of and on behalf of the company.

3.       To draw accept or endorse negotiable instruments in the name of and on behalf of the company.

4.       To prove rank and claim in the bankruptcy and insolvency of a contributory

5.       To take out letters of administration in his official name on a deceased contributory.

6.       To raise money on the security of the company’s assets.

7.       To employ agents to perform tasks he cannot.

8.       To do so other acts as are necessary for the winding up and distributing of the assets of the company.

Release of the Liquidator

When the liquidator has collected all the property of the company or as much as he can without protracting the winding up and has:

a)       Distributed a final dividend if any to creditors;

b)      Adjusted the rights of contributories amongst themselves; and

c)       Made a final return to contributories; he must apply to the Court for his release or discharge.

The Court then orders him to prepare a report on his account and on the basis of the report and any objection as may be made by any creditor, contributory or interested party; the Court determines whether or not to release the liquidator.

If the liquidator’s release is withheld the Court may hold him liable on application for acts or commissions committed or omitted in the course of winding up.

If the Court releases the liquidator; the order discharges him from all liabilities arising in the course of winding up.

However the discharge may be revoked if it is proved that it was procured by fraud, misrepresentation and concealment of material facts. Otherwise a discharge order operates as the removal of liquidator from office.

Rights of Parties in relation to winding up

Liquidation rights can take two forms: an initial liquidation preference and participation rights.

An initial liquidation preference provides that, in the event of a sale, the holders of preferred stock receive a specified amount per share prior to any payments to the holders of common stock.

Participation rights allow a preferred shareholder to share the proceeds of a sale on a pro rata basis with the common shareholders as though the preferred shares are common shares

DISTRIBUTION OF ASSETS

In a compulsory liquidation (and often in a voluntary one) the liquidator follows a prescribed order for distributing the company's assets:

	Order	Explanation
1	Liquidation Costs	These include the costs of selling the assets, the liquidator's remuneration and all costs incidental to the liquidation procedure
2	Preferential debts	·       All taxes and local rates due from the company for not more than one year. ·       All government rent in arrears for not more than one year. ·       Employees' wages (subject to a statutory maximum) ·       Accrued holiday pay ·       Contributions to an occupational pension fund
3	Debts secured by floating charges	Subject to the ‘prescribed part' (see below)
4	Debts owed to unsecured ordinary creditors	A proportion of assets (known as the ‘prescribed part') is 'ring-fenced' for unsecured creditors.
5	Deferred debts	These include dividends declared but not paid and interest accrued on debts since liquidation
6	Members	Any surplus (unlikely in compulsory and creditors' voluntary liquidations) is distributed to members according to their rights under the articles or the terms of issue of their shares

 

It is important to remember that creditors with fixed and floating charges may appoint a receiver to sell the charged asset - any surplus is passed onto to the liquidator. In the event of a shortfall they become unsecured creditors for the balance.

Offenses Related to Liquidation

1.Statutory Offenses

Section 498 provides that an officer or former officer of the company commits an offence if, within the 12 months immediately preceding the commencement of the liquidation of the company, the officer or former officer:

a)       concealed any part of the company’s property to the value of KES 50,000 or more; or concealed any debt due to or from the company;

b)      fraudulently removed any part of the company’s property to the value of KES 50,000 or more;

c)       concealed, destroyed, mutilated or falsified any document affecting or relating to the company’s affairs or property;

d)      made any false entry in any document affecting or relating to the company’s affairs or property;

e)      fraudulently parted with, altered or made any omission in any document affecting or relating to the company’s affairs or property; or

f)        pawned, pledged or disposed of any property of the company that has been obtained on credit and has not been paid for.

Section 499 provides that an officer or former officer of the company commits an offence if the officer or former officer:

a)       has made or caused to be made a gift or transfer of, or charge on, or has caused or connived at the levying of execution against, the company’s property; or

b)      has concealed or removed any part of the company’s property since, or within the 2 months preceding, the date of any unsatisfied judgment or order for the payment of money obtained against the company.

Section 501 makes it an offense to falsify documents in relation to company in liquidation.

Section 502 makes it an offense to make a material omission from statements relating to financial position of company in liquidation

Section 503 provides that it is an offence to make false representations to creditors of a company in liquidation.

 

 

2.Fraudulent Preference

This is a charge, mortgage, conveyance delivery of goods act relating to company property made by or on behalf of the company within 6 months of commencement of the winding up. Such a transaction is deemed void, however it must be evident that it was entered into voluntarily, when the company was insolvent, to prefer a particular creditor over another.

3.Misfeasance

This is a wrongful act of omission committed or omitted by a person charged with a specific responsibility. In the words of Lord Esher in Re: B Johnson (Builder) Company Ltd,

“There is no such distinct wrongful act known to the law as misfeasance”

According to the judge, a misfeasance is an act of omission committed or omitted in violation of the principles of common law or equity. It is neither a crime nor a tort and does not include acts or omissions of negligence.

Misfeasance proceedings may be instituted against promoters, directors, liquidators, auditor etc. and the principal remedy to the company is damages. For example, the Court has the jurisdiction in winding up to assess the damages payable by officers of the company including the liquidator for any misfeasance committed. Examples of misfeasance include:

1.       Payment of dividends out of capital.

2.       Making of improper payment to promoters by directors.

3.       Making of secret profit by directors or promoters.

4.       Making fraudulent preferences.

5.       Selling a company property at undervalue.

6.       Applying the company’s assets in ultra vires or illegal transactions.

In Reliance Wholesale Company Ltd V Mills the company owed its directors £7,500 and the amount was repayable as and when it becomes available. On one occasion, the director found signed cheques at the company’s office he filled £5,500 in one of them but in a subsequent conversation with the other director he was instructed not to cash it, but he did. The company thereafter went into liquidation and the liquidator applied to have the amount returned on the ground that the director was guilty of or misfeasance. The Court agreed and ordered the director to account for the same.

LIABILITY OF PAST MEMBERS

Members of the company, both past and present, are liable to contribute to the assets of the company, such amounts as necessary to meet its debts and other liabilities as well as the expenses of winding up.  However the liability of past members is subject to the following qualifications:

·       A past member cannot be called upon to contribute the assets of the company if he has ceased to be a member for one year or more before the commencement of winding up.

·       A past member is not liable to contribute in respect of debts contracted after he ceased to be a member of the company.

·       A past member can only be called upon to contribute if existing members are unable to satisfy the contributions necessary.

·       In the case of a company limited by shares, a past member can only be called upon to contribute the amount unpaid on his shares.

·       In case of a company limited by guarantee a past member can only be called upon to contribute the amount he undertook to contribute if the company was wound up during his membership or within one year of cessation of membership

DISSOLUTION OF COMPANIES AFTER LIQUIDATION

Section 494 provides that as soon as practicable after receiving the final account and return prepared by the liquidator, the Registrar shall register them.

At the end of 3 months from the registration of the account and return, the company is dissolved and its name officially withdrawn from the register of companies.

Principles guiding the court in making a custody order

Section 83 of the Children’s Act sets out the following principles guiding the court in making a custody order. The court must consider the following:

1. The conduct and wishes of the parent or guardian of the child
2. The ascertainable wishes of the relatives of the child
3. The ascertainable wishes of any foster parent, or any person who has had actual custody of the child and under whom the child has made his/her home in the last 3 years before the application to the court.
4. The ascertainable wishes of the child.
5. Whether the child has suffered any harm, or is likely to suffer any harm if the order is not made,
6. The customs of the community to which the child belongs.
7. The religious persuasions of the child
8. Whether a care order, or a supervision order, or a personal protection order, or an exclusion order has been made in relation to the child concerned and whether or not those orders remain in force.
9. The circumstances of any sibling of the child concerned; and of any other children of the home, if any.
10. The best interest of the child.

Once the court considers all the above, it will then proceed to make a custody order. Many times a court is guided by official inquiry reports made by Child Services, who then decide whether or not to recommend either parent to have custody of their child.

PROCEDURE FOR APPLICATION FOR JUDICIAL REVIEW

PROCEDURE FOR APPLICATION FOR JUDICIAL REVIEW

Application for leave is by way of Chamber Summons under Civil Procedure Rules Order LIII.  This application is made ex parte in sub section 3 it requires that notice be given for application for leave.  The notice is to be given to the registrar of the High Court.

Time limitation is crucial.  Order 53 provides for time limits within which a person can apply for leave.  The law is very strict where it comes to certiorari, you have to file your application for leave within 6 months of the date your application e.g. when a liquor licensing was denied.  If you do not file within 6 months the court cannot grant an extension.

Time limitation is not stipulated for Mandamus or Prohibition but it is required that you file the application within a reasonable time.  Reasonable time means that you may serve 3 months after the licence was denied and be denied leave or for 8 months and they grant leave.  But with certiorari it has to be 6 months and it cannot be extended.

Order 53 (4) – Grant of leave to make the application can operate as a stay of proceedings.  It can be a stay of the proceedings that you are complaining about.

The grant of leave will operate as a stay of proceedings where you are seeking to quash whatever has taken place under certiorari.  Stay will only apply in case of certiorari and prohibition and not Mandamus.

APPLICATION FOR JUDICIAL REVIEW

Under section 3(1) after you have been granted leave, you make your application by way of Notice of Motion which will include a statement.  Within 21 days of the grant of leave, you must make your application.  If personal allegations have been made, you must serve the party that allegations have been made against. You must serve the other party, e.g. officials of liquor licensing court etc. within 8 clear days of hearing;

You file an Affidavit of Service stating some things usually a court process server will swear an Affidavit stating how they effected Service.

File the Affidavit of service within 8 clear days of hearing and file the Affidavit with a court registry and the affidavit must be in the file on the day of hearing.

Hearing:  This is when your application for Judicial Review is done.  The administrative body or tribunal will enter appearance which is done in a prescribed format.  After the court listens to your allegations, the court makes a ruling and the court may rule in your favour or against.  When asking for certiorari, you must categorically indicate that in your pleadings etc.

REMEDIES:

There are only three remedies that the courts can grant for judicial review

Certiorari

Prohibition;

Mandamus

Whether the courts will grant one of these rules depends on the circumstances.

CERTIORARI

The word Certiorari is a Latin word which simply means ‘to be informed’.  Historically it was a royal command or demand for information.  The practice was that the sovereign who was the king or the queen upon receiving a petition from a subject complaining of some injustice done to him would state that he wishes to be certified of the matter and then he would order the matter to be brought up to him.  Ordering the matter to be brought up to him will include ordering that the records of the proceedings be brought up to the sovereign.  The purpose of calling up the records was in order for the sovereign to quash any decision that has been made after acquainting himself of the matter in other words after being certified of the matter.

Currently, certiorari is an order to remove proceedings from an administrative body or an inferior court to the High Court in order to be investigated and if found wanting on any one of the grounds we studied including ultra vires, be quashed.  The order can issue against administrative tribunals, it can also issue against inferior courts such as the industrial courts, it can issue against local authorities, it can issue against Ministers of Government.  It can also issue against miscellaneous public bodies exercising public functions.

Majid Cockar V. Director of Pensions Nai H.C. Misc App 532 of 1998

This was the case between the former Chief Justice Cockar and the Director of Pensions.  In computing the pension payable to the CJ the pensions department made a mistake in their calculations. The former Chief Justice went to court and upon application for Judicial Review the court issued the order of certiorari to quash the decision awarding the former CJ an amount of money as pension.

For Certiorari to be issued, indeed for any one of the 3 orders to be issued, a person must be having Locus Standi which is crucial as you must have the capacity to sue.  You have capacity to sue by having a sufficient interest in the matter. If you don’t have sufficient interest in the matter, the court will not grant you any of the orders.  You have a sufficient interest in the matter if you will be directly affected by the matter.

PROHIBITION:

The order of Prohibition is an order issued by the High Court which prohibits a body (administrative bodies) from continuing proceedings; it will also prohibit a body from continuing to carry out decisions wrongly or wrongfully made.  This order may be issued against judicial body acting in an administrative capacity i.e industrial court.  It can also issue against an administrative body performing administrative duties or against the government officials etc.  It can be issued to stop a public body from continuing proceedings that are ultra vires.  It can also be issued to stop an admin body from continuing to do something in excess of jurisdiction.  It can also be used to stop an administration body from abusing their powers.

R V. Electricity Commissioners Ex parte Electricity Joint Committee (1924) 1 K.B 171

At Page 559 Lord Denning stated as follows

“It is available to prohibit administrative authorities from exceeding their powers or misusing them.”

Lord Atkin in the same case said as follows

“If proceedings establish that the body complained of exceeded its jurisdiction, by entertaining matters which would result in its final decision being subject to being brought up and quashed on certiorari, I think that Prohibition will lie to restrain it from exceeding its jurisdiction.”

This illustrates the point that prohibition will lie to restrain an administrative body from doing something wrongly or misusing its power, abuse of power etc.

When one applies for the order of Certiorari, one is seeking to quash a decision that has already been made.  At the time of application for judicial review, the order you seek the court to quash must be presented to the court by making a photocopy of the order and attaching it to the Application. 

With Prohibition, you do not have to attach the copy of the order.

MANDAMUS:

The order of Mandamus is derived from the Latin word Mandare meaning to command.  It is a court order issued to compel the performance of a public duty where a public body or official has unlawfully refused, declined or otherwise failed to undertake the duty.  Mandamus is a court order issued to compel the performance of a public duty where a public body or official has public refused failed or declined to undertake a duty. 

Mandamus issues where there is a duty imposed by statute or common law.  Please note that the duty must be a public duty, Mandamus will not issue in respect of a duty that is of a private nature even if the body in question is a public body.  For example where two construction companies agree to undertake some work who agree to resolve any dispute between them by arbitration through the industrial court.  The industrial court will be performing a private function and thus the order of Mandamus cannot issue.

For Mandamus to issue, the Applicant must have made a request for the performance of a public duty which has been refused, declined or ignored.  This means that if a public admin body refused to do something, you must approach it and request it to perform the function or the courts will not hear you.  Unreasonable delay on the part of the public body will be treated as refusal.  The duty must be a specific duty.  You cannot apply for the order of Mandamus for a duty that is general, it must be specific e.g. under the English Gas (1972) it was the duty of the British Gas Corporation to develop an efficient coordinated and economical system of Gas supply for Great Britain.  Such an obligation is so imprecise i.e. it is so general that it would not be enforceable by the order of Mandamus.  The lack of specificity does not mean that it is meaningless.  Duty can be carried out but it is not precise.  Mandamus is used to enforce performance of specific duties and not the exercise of mere powers.

Kenya National Examination Council V. R      Ex parte Geoffrey Gathinji Njoroge & others Civil Appeal No. 266 of 1996

Justices of Appeal Tunoi and Shah stated as follows regarding the powers of the Kenya National Examination Council

“The times and frequency of the examinations are left to the discretion of the council and it cannot be enforced by Mandamus to hold an examination at any particular time of the year.

Daniel Nyongesa & Others V. Egerton University College Civil Appeal NO. 90 of 1989

In this case Nyongesa’s exam results were held by the university and when he went to court, the court issued an order of mandamus for the court to release the results. Nyongesa had requested the university for his results and they had refused so he applied for an order of mandamus to the court and he was granted.  There was a specific duty for the university to release the results.

DISTINCTION BETWEEN JUDICIAL REVIEW AND ORDINARY REVIEW (REVIEW OF JUDGMENT)

Order XLIV Civil Review – APPLICATION FOR REVIEW OF JUDGMENTS

In addition to judicial review there is what is known as ordinary review.  Judicial review is covered under Order 53 and Ordinary Review is provided for under Order 44 of the Civil Procedure Rules. 

 Ordinary Review is a review of judgment or order of a court of law.

 Judicial review is a review of an act or a decision of an administrative body.

When can a person review an ordinary review in a different court?

1.                 If the judge that made the decision is no longer at the station, then one can apply to a different court for review.

2.                 If the judge who made the judgment has not been present for 3 months after 3 months it is considered that there has been an inordinate delay and the court can allow you to review the decision in a different court.

There is no time limitation to when one can apply for an ordinary review but the application must be made without delay.  There is no requirement of leave of court to apply unlike in judicial review where one has to seek leave of court.

Ordinary Review is review of judgment or order made by a court of law (Judicial Review is review of an act or decision of an administrative body)

Ordinary Review is provided for under Order XLIV (44) of the Civil Procedure Rules.  This order provides that any person considering himself aggrieved by decree or an order from which an Appeal is allowed but from which no appeal has been allowed, or a person who feels aggrieved by a decree or order from which no Appeal is allowed may petition the court that made the order of decree on the following conditions

(i)                On the discovery of new and important matter or evidence which after the exercise of due diligence was not within his knowledge or could not be produced by him at the time the decree or order was made;

(ii)             On a count of some mistake or error apparent on the face of the record; for example error of law, typographical errors, mathematical errors etc.

(iii)           For any other sufficient reason.

In these 3 circumstances an aggrieved person may apply to the court which made the decree or order.  There are certain exceptions to the requirement that application for review be made to the court that made the decree or order

1.                 Where the Chief Justice orders some other person, i.e. some other judge or magistrate to hear their application for review;

2.                 Where the Judge or Magistrate who made the decree or the order is no longer attached to that court e.g. where they have been transferred or have resigned.

3.                 Where the Magistrate or Judge who made the order or decree has been absent from the station for more than 3 months from the date of filing of your application.

4.                 Where you have discovered new and important matter of evidence.

Note that there is no time limitation for application for ordinary review but it must be brought without unnecessary delay.  Upon ordinary Review, there may be a re-hearing of a case.  The case may be heard afresh.

No double review is allowed meaning that no application can be brought for review of an order issued upon an application for ordinary review.

DISTINCTIONS BETWEEN ORDINARY REVIEW AND JUDICIAL REVIEW

1.                 With judicial review an aggrieved party must first of all apply for leave of court and on the other hand there is no requirement for leave on application for ordinary review.

2.                 With Judicial Review especially where an applicant seeks the order of Certiorari the application must be brought within six months i.e. there is time limitation of six months on the other hand with ordinary review there is no time limitation but the application must be brought without unnecessary delay.

3.                 this is with regard to the grounds – the grounds for judicial review are not the same as those for ordinary review.

The Industrial Court is subordinate to the High Court even though it is presided over by a Judge. 

Kenya Airways Limited V. Kenya Airways Pilots Association H.C. Nai. Misc App No. 254 of 2001

Judicial Review is not an Appeal.

Distinction between Appeal and Judicial Review

An Appeal has been described as the transfer or taking of a case from a lower court to a higher court in the hope of reversing or modifying the decision of the former.  An Appeal involves taking a case to a higher court for rehearing to determine whether the decision arrived at by the lower court was right or wrong.  When one appeals a decision, one is claiming that it is wrong or incorrect on the basis of evidence tendered and the applicable law and that the appellate body should change the decision.  For example if X was found to have defamed Y upon judgment X might appeal that finding or the amount of damages which the court awarded to Y.  the court of Appeal if persuaded of the merits of the case may allow X’s Appeal in which case the court substitutes its view for that of the lower court.  Thus we can say, that on the other hand with judicial review, a court is not concerned with the merits of the case in other words, a court is not concerned with whether the decision was right or wrong on the basis of the evidence tendered and the Applicable Law, but with whether the decision making process was lawful or unlawful.

Whereas an appeal is concerned with a decision, )it is concerned with whether a decision was right or wrong) judicial review is concerned with the decision making process.

Chief Constable of North Wales Police V. Evans [1982] 1 WLR 1155

In this case the court stated in an effort to distinguish judicial review from an appeal that the purpose of judicial review is to ensure that an individual is given fair treatment by a wide range of administrative authorities be they judicial quasi judicial or purely administrative to which the individual has been subject.  It is no part of that purpose to substitute the opinion of the judiciary or the individual judges for that of the authority constituted by law to decide the matter in question.  The consequences of finding that a decision or a decision was unlawful, and the consequences of finding that the decision making process was unlawful, improper or flawed is that it is invalidated.  This means in the case of Judicial Review, that the court can order a decision to be made again but the second time, it must be made in accordance with the law.  Please note that it would be acceptable for the decision maker to come to the same conclusion provided the law is respected.

Mirugi Kariuki V. Attorney General [

The Appellant was charged with Treason.  He petition the Attorney General to grant leave to an English Barrister to lead his defence.  In the exercise of his absolute discretion to consider such a request conferred by Section 11 of the Advocates Act, the Attorney General wrote a letter to the Appellant saying that leave would not be granted because the Appellant’s trial was straight forward and would not require the assistance of a foreign advocate.  In an application for Certiorari to quash the Attorney General’s decision, the court found that the grounds on which the Attorney General’s grounds were founded were suspicious. The Court removed the offending letter to the High Court quashed it and directed the Attorney General to reconsider Mr. Kariuki’s request in a manner more respectful to the norms of sound administration.

The point is that even if the law was not followed in the first place, the court can order that body to reconsider the matter.

With Appeals, if there is a right of appeal and an appeal succeeds, the Appellate Court will substitute its own decision for that of the inferior tribunal and dispose of the case accordingly.

Another attribute of appeal is that it is granted by statute.  Unless a statute expressly allows appeal, an aggrieved party cannot lodge an appeal against a decision.  In cases where appeals are allowed against administrative decisions or actions, the relevant law will expressly state that Appeal is allowed.  On the other hand in judicial review, the court exercises inherent powers, which gives it authority to review unlawful decisions.  In other words, there need not be express statutory provisions authorising the High Court to exercise judicial review over an administrative decision, or an administrative action.

Please note that even if a statute specifically excludes appeal to a Higher Court, this does not bar the High Court from exercising powers of judicial review.

The Law on Garnishee proceedings

 Definitions

Garnishment-a judicial proceeding in which a creditor (or potential creditor) asks the court to order a third party who is indebted to or is bailee for the debtor to turn over to the creditor any of the debtor’s property (such as wages or bank accounts) held by that third party.

Garnishee – a person or institution (such as a bank) that is indebted to or is bailee for another whose property has been subjected to garnishment.

Garnish-to subject (property) to garnishment.

Explained: Usually a garnishee is a third party who is indebted to the judgment holder, usually that garnishee must be within the jurisdiction of the court.

So if you want to execute against a person and they have no money but you know there is a third person who owes them money, you can executive against the debt by instituting garnishee proceedings.
Instead of ordering attachment of debt the court may order Ganishee to show cause why he should not be the decree holder the debt due to him from the JD.  Alternatively instead of the order nisi the court may choose may require to show cause why the property should not be attached in satisfaction of the decree, the order must be served on Ganishee 7 days before the date of hearing.  If the Ganishee does not appear for hearing of the Order nisi, the court may order that decree be levied against the property or to be served on Ganishee personally.

For purposes of Ganishee proceedings a credit in a deposit in a bank or building society can be attached notwithstanding that the following apply to the account Notice Required before any money is withdrawn that a personal application must be made before any money is withdrawn; a deposit  book must be produced before any money is withdrawn; or that a receipt for money deposited in the account must be produced before any money is withdrawn.


Whatever the conditions, once the order is issued, then it will bind the bank or financial institution irrespective of what that institution may have set for the operation of that account.