REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MAKUENI

HCCA NO. 29 OF 2020

CO-OPERATIVE BANK OF KENYA...APPLICANT/APPELLANT

-VERSUS-

MARY NDUKU MUTUA .....................................1^ST RESPONDENT

INVESCO ASSURANCE CO. LTD ....................2^ND RESPONDENT

RULING

1. Before me is an application by way of Notice of Motion dated 5^th February 2021, filed under section 428, 429 and 430 of the Insolvency Act, Order 51 Rule 1, section 1A and 1B and 3A of the Civil Procedure Act, seeking the following orders –

1. That this court be pleased to stay these proceedings pending the hearing and determination of Nairobi Commercial & Admiralty Division Insolvency Cause No. E155 of 2019.

2. That this court be pleased to order all modes of execution against the 2^nd respondent including the Garnishee proceedings instituted by the 1^st respondent as void and unlawful by virtue of the winding up orders issued on the 7^th day of November 2019 in Insolvency Petition No. E009 of 2019.

3. That the honourable court be pleased to order that any attachment, sequestration, distress of execution against the appellant/applicant herein is void.

4. That costs of this application be provided for.

2. The application has grounds on the face of the Notice of Motion that the 1^st respondent herein instituted Garnishee proceedings against the appellant for the release of Kshs.830,363/= as held on behalf of the 2^nd respondent, that during the pendency of the Garnishee proceedings and prior to issuance of the decree absolute, there had been filed a Creditors Insolvency Petition at the Nairobi Commercial and Admiralty Division being Insolvency Cause No. E155 of 2019 and that consequently under section 428 of the Insolvency Act, a creditor or contributory may apply to the court to restrain any further proceedings in respect of that matter before the court.

3. The application was filed with a supporting affidavit sworn on 5^th February 2021 by Philip Musya advocate for the applicant amplifying the grounds of the application, and in particular deponed that on 7^th November 2019 Okwany J. delivered a judgment for the winding up of the 2^nd respondent, Invesco Assurance Co. Ltd.

4. The application is opposed through a replying affidavit sworn on 14/4/2021 by S.M Makau advocate for the 1^st respondent, in which it was deponed that in a garnishee application coming for hearing in June 2019 the applicant’s counsel recorded a consent for release of the amount claimed, and that an application filed thereafter to set aside the said consent was dismissed by the court.

5. The application proceeded by way of filing written submissions, and I have perused and considered the submission by B.M Mungata for the applicant/appellant and Annie W. Thoronjo for the 1^st respondent. I note that the 2^nd respondent Invesco Assurance Co. Ltd on whom the issue in dispute revolves, did not respond nor file submissions.

6. Having considered this application, and the submissions of counsel for the parties and the law, I am of the view that this application lacks merits and has to be dismissed.

7. The first reason is that a consent entered into by counsel in this matter is still effective and an earlier attempt to set it aside was dismissed by the court. That consent thus still subsits and cannot be impeded by insolvency proceedings in another court, in which not all parties herein are parties.

8. Secondly, no moratorium or restraining order has been shown to have been issued in Nairobi Commercial and Admiralty Division Insolvency Cause No. E155 of 2019 as required by law. In this regard section 428(1) and (2) of the Insolvency Act relied upon by the applicant’s counsel states as follows –

428(1) At any time after the making of a liquidation application and before a liquidation order has been made the company, or any creditor or any contributory may –

a. If legal proceedings against the company are pending in court – apply to the court for the proceedings to be stayed; and

b. If proceedings relating to a matter are pending against the company in another court, apply to the court to restrain further proceedings in respect of the matter in the other court

(2) On the hearing of an application under sub-section 1(a) or (b), the court may make an order staying or restraining the proceedings on such terms as it considers appropriate

9. My understanding of the above provisions of the law especially section 428(1)(b) is that the application for moratorium  or restraining of other proceedings has to be made in the cause in which there is a liquidation application, not in those other proceedings. The moratorium or restraining orders have to be obtained in that cause. Thus the present application has been made in the wrong case, and is for dismissal.

10. Thirdly, the two concepts of receivership and liquidation are different concepts and the applicant herein has referred to a Receivership Cause No. E155 of 2019 in Nairobi Commercial Court, not a liquidation Cause. On the difference between the two legal concepts, I will cite the case of Thomas and Piron Grands Lacs ltd –vs- Lightouse Property Company Ltd; Chase Bank Kenya Ltd (In Receivership) and Another (Interested Parties) (2019) eKLR wherein Tuiyot J. as he then was stated as follows –

“The concept of receivership and liquidation as contemplated by the KDI Act are different. The circumstances under which Central Bank can place a bank under receivership are set out in section 43(2) of the KDI Act and include when assets of an institution are less than its obligations to its creditors or the institution has engaged in malpractices or activities contrary to provisions of any Kenyan law or other applicable law”.

11. In my view, receivership applies when a receiver is appointed to try to revive the company, while liquidation is a process of winding up the company. Under section 428 above, only in cases where liquidation proceedings have been taken can stay of other proceedings be effected.

12. In my view therefore, the application herein is misadvised and has no merits and has been filed in the wrong cause. I dismiss the application with costs to the 1^st respondent.

DELIVERED, SIGNED & DATED THIS 9^TH DAY OF DECEMBER, 2021, IN OPEN COURT AT MAKUENI.

………………………

GEORGE DULU

JUDGE