[RULING] Company Law-setting aside-application to set aside and or review the winding up order-on the ground that no evidence was led in support of the petition and the hearing of the petition was not advertised as required by law-where the debt upon which the petition was based was seriously disputed-whether there would be irremediable prejudice or injustice to be suffered by the petitioner if the winding up order was set aside- r.7 (2) of the Companies Winding Up Rules, section 221 (1) (iii) of the Companies Act and 0.44 r.1 of the Civil Procedure Rules

[Ruling] Company Law-winding up-striking out-application to strike out a petition seeking to wind up the company-claims that the petition was meant to harass and destroy the company which was quite solid financially-petitioner having granted the company a loan-effect of-whether a winding up petition was a legitimate means of seeking to enforce payment of a debt which is bona fide disputed by a company-whether the alleged dispute was based on any substantial ground and was bona fide

Kabansora Limited v Ahmed Bahannan

High Court, at Nairobi

March 20, 1995

Keiwua, J

Civil Suit No 3619 of 1988

Civil Practice and Procedure – Stay of execution and setting aside – of Garnishee order nisi – where Garnishee is served and less than seven days given for hearing – whether this is procedural under law – order 22 Rule 1 (2) Civil Procedure Rules.

SUMMARY OF FACTS

The Garnishee applied for stay of execution and setting aside of Garnishee order nisi of October 15^th, 1990 served on October 17^th, 1990 and which was for hearing on October 23^rd, 1990. Among the matter deponed was that the Garnishee do within 7 days after service of the orders inform the court what sum was due from him to judgment debtor.

It was intended by Garnishee that no appropriate notice was given to him since 7 days had not lapsed since effecting service.

The application was opposed however on the ground that Rule 3 of order 22 of Civil Procedure Rules could not be invoked by Garnishee since he had been given appropriate notice to appear and did not appear to show that no debt was due from it to the debtor.

HELD

1. Civil Procedure Rules require at least seven days before the day of leaving the Garnishee order nisi shall be served on the Garnishee.
2. Garnishee was not given sufficient notice to appear in court on October 23^rd, 1990.

Application Granted

Civil Procedure and Practice - preliminary objection – locus standi – capacity of the plaintiffs to sue for the purpose of preventing public wrongs

Land – title - indefeasibility of title –Registration of Titles Act (cap 281) section 23