1.MADHAV MOOLRAJ Debtor’s Petition dated 30th November 2020 thus moved the court;
2.The Petitioner swore a Supporting Affidavit and prayed for the Court to adjudge him bankrupt on account of an outstanding sum of KES 59,589,531.25/ = owed to various creditors which debt consists of historical debts that the Petitioner took over (as explained in the Affidavit) and that incurred in his personal name. His creditors include friends, business associates, shylocks, forex bureaus and banks (bank overdraft facilities).
3.This Petition has been necessitated by the realization that the Petitioner has no assets and there is no reasonable prospect whatsoever that he will be able to settle the Debts.
4.As a result of taking overdraft facilities, he has a debit balance of KES 73,749.25/ = which he holds in his Kenya Shillings Account Number 3000042462 with Prime Bank Limited. He also has a credit balance of KES 88.37/ = which he holds in his Kenya Shillings Account Number 00900352421201 with I&M Bank Limited.
5.As at October 2020, the Company's Kenya Shilling Bank Account Number 0101350100 with Mayfair Bank Limited had a balance was KES 1,935/= which is insufficient to settle the Debt in full.Similarly, the Company has a NIL balance in its Kenya Shilling Bank Account Number 03801623901210 with I & M Bank Limited.
6.The Petitioner’s only assets at present are:a)A cash sum of KES 112,852.36 which he holds in his Kenya Shillings Account Number 0101320009 with Mayfair Bank Limited.b)A share in Corrington Holdings Limited which he holds as a nominee on behalf of Karn Behal.c)Shares in Horse Shoe Tavern Limited the company through which he operated a food catering business from September 2017 to March 2020.
7.Unless the Bankruptcy Order sought is granted, the Petitioner is apprehensive that he will be subjected to debt recovery proceedings with potential for imprisonment as part of execution measures taken by his Creditors despite their knowledge of his inability to pay back the Debt. In the circumstances it would only be fair and in the interest of justice to grant the Bankruptcy Order sought in this Petition as he is unable to pay the Debt.
8.Lastly, the Petition was brought in good faith.
9.The Official Receiver, MARK GAKURU, then furnished a Certificate of Compliance dated 4th December 2020 stating as follows:The Official Receiver's Receipt No. A-0671091 has been issued to the Petitioner in acknowledgment.”
ISSUES FOR DETERMINATION
10.After considering the Petition, Supporting Affidavit and the supporting documents, the Court frames only one issue for determination;a. Whether the petition for bankruptcy ought to be granted?
11.Under Section 32(1) of the Insolvency Act, a debtor is entitled to apply to be adjudged bankrupt on the grounds that he or she is unable to pay his or her debts. Section 32 (1) provides as follows;(1)A debtor may make an application to the Court for an order adjudging the debtor bankrupt only on the grounds that the debtor is unable to pay the debtor's debts.
12.Further, Section 32(2) of the Insolvency Act provides the requirements that must be met by the Petitioner as follows;(2)The Court may decline to deal with such an application if it is not accompanied by a statement of the debtor's financial position containing—(a)such particulars of the debtor's creditors and of the debtor's debts and other liabilities and assets as may be prescribed by the insolvency regulations; and(b)such other information as may be so prescribed.
13.In Re James Maina Kabatha (Debtor/Applicant) NKR Insolvency Cause No. 4 of 2019  eKLR the Court stated;
14.The Petitioner filed his statement of affairs which shows that the only asset he has is cash at hand worth Kshs.188, 536.61 against his debt of Kshs.59, 589, 531.25. Based on the evidence provided by the Petitioner, the Court is satisfied that the Petitioner is unable to pay his debts.
15.The Petitioner having been filed in good faith and supported by evidence, the Court finds no reason to deny the order of bankruptcy against the Petitioner.
FINDINGS AND DETERMINATION
16.In the light of the forgoing reasons the court makes the following findings and determinations;i. The Application seeking a bankruptcy order is found to have merit and it is hereby allowed;ii. The Applicant is hereby adjudged as a bankrupt on account of the outstanding debts;iii. An Interim Order of stay is hereby granted against any action, execution or other legal process against the property or person of the debtor is stayed up-to 6/10/2022;iv. The Applicant shall forthwith serve the Official Receiver and the creditors with a copy of this Order;v. Mention on 6/10/2022 for further directions.