In Re Al-Moody (A Debtor)  EKLR
|Bankruptcy Cause 4 of 1989||15 Dec 1989|
Erastus Mwaniki Githinji
High Court at Mombasa
In re Al-Moody (A Debtor)
In re Al-Moody (A Debtor)  eKLR
In Re Al-Moody (A Debtor)
High Court, at Mombasa December 15, 1989
Bankruptcy Cause No 4 of 1989
Bankruptcy — presentation of a petition by debtor to evade committal order — not an abuse of court process — debtor entitled to use machinery of Bankruptcy as a shield.
This was debtor’s petition which pleaded that he was unable to pay his debts and requested that a receiving order in respect of his estate be made and that he be judged bankrupt.
1. The mere paper presentation of a petition by the debtor to evade a committal order is not an abuse of the process of the court.
2. A debtor is entitled to use the machinery of the Bankruptcy Act for his own purpose so as to shield himself from further liability to committal or other harassment.
3. There is a limit to a debtor’s immunity and if it appears as a fact that a debtor is on the habit of filing bankruptcy petitions to get rid of his liabilities so as to defraud the creditor, he ought not be protected by the Bankruptcy Act.
4. If a petition is proper and is not an abuse of the process of the court, it is imperative that the court should make a receiving order.
1. Re Betts Ex Parte Official Receiver  2 KB 39
2. Re a Debtor (No 17 of 1966)  1 All ER 668
3. Re Bond (1888) 21 QBD 17
Hailsham, Lord et al (Eds) (1973) Halsbury’s Laws of England London:
Butterworths 4th Edition Vol III p194 para 324
1. Bankruptcy Act (cap 53) sections 81(1), 16, 16(1), 102
2. Bankruptcy Act 1869 [UK] section 8
Mr Ogola for the Petitioner.