Cytonn High Yield Solutions (CHYS) In Liquidation) & 2 others v Official Receiver & 17 others; Creditors’ Committee for CPN Llp (In Liquidation) (Interested Party) (Civil Appeal E154, E155, E424 & E425 of 2023 (Consolidated)) [2025] KECA 1951 (KLR)
The bottom line
#The Court of Appeal confirmed that over 3,000 Cytonn investors move closer to recovering their money as liquidation of the Cytonn entities proceeds.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Creditors' Committee had the locus to bring the application dated May 19, 2022
- 2.Whether it was necessary for the trial court to make a finding of improper motive on the part of Cytonn Investment Management PLC before lifting the Administration Order
- 3.Whether the preservative orders were properly issued
- 4.Whether the decision to decline to extend the administration amounted to an abuse of discretion
- 5.Whether the 3rd appellant (Cytonn Integrated Project LLP) was condemned unheard
- 6.Whether the principle of privity of contract was disregarded by the learned Judge
- 7.Whether the learned Judge disregarded the principle of separate legal personality
- 8.Whether the learned Judge misinterpreted the law on fraud
- 9.Whether the learned Judge misinterpreted the law on trust and tracing
Key legal issues
#Locus standi of the Creditors' Committees
The Creditors' Committees, constituted under section 574 of the Insolvency Act, had locus to file the application to terminate the administration; no resolution of creditors was required.
Because over 3,000 creditors were involved, a representative method through the committees was the prudent way to protect creditors' interests. Section 591 expressly permits a creditor to apply alone or with others, and section 597 allows a creditor to seek termination. The committees had ostensible authority; Bugerere Coffee Growers was distinguishable because the action was brought by creditors, not on behalf of the company, and the burden of proving absence of a resolution lay on the appellants.
Improper motive under section 597 of the Insolvency Act
Where the administrator's appointment was procured by the companies' own promoter with material non-disclosure of prior engagement, improper motive is sufficiently imputed and the court may terminate the administration without a separate finding against CIM.
The administrator was not wholly court-appointed; his choice came from the companies through Edwin Dande's affidavits, which did not disclose that he had been retained by the same companies before his proposal. Since his appointment was at the instance of Dande, the alter ego of CIM, the court was entitled to terminate the administration on the basis of that non-disclosure.
Conversion of administration to liquidation under section 533
The court that granted an administration order retains residual power to treat the application, or an application to extend, as a liquidation application where administration cannot achieve its objectives; section 426 is referenced only for the orders available.
The supervised administration necessarily leaves the court with power to ensure it is carried out as directed. Since creditors can apply to terminate administration, the court may direct liquidation where administration would not achieve its purpose. Section 533(1)(f) does not confine such conversion to applications brought under section 426 in the public interest; the reference to section 426 concerns only the orders the court may issue.
Exercise of discretion on extension of administration
Extension of an administrator's term is discretionary and is not automatic; where the administrator himself concluded the companies could not be rescued and creditors opposed extension, refusal to extend was correct and the appellate court will not interfere.
Under sections 593 and 594 the administration lapses after one year unless extended; the discretion must be exercised in the interests of the creditors as a whole, considering whether the purpose remains achievable, any prejudice, and the creditors' views (Re Nortel Networks). The administrator's non-disclosure, complacency and failure to recover anything justified the High Court's decision, which took no irrelevant considerations and was not plainly wrong.
Right to be heard of the SPV (CIP) not formally served
CIP was not condemned unheard: through Edwin Dande, the common denominator in its management, it knew or ought to have known of the proceedings, and preservation orders were interim, with the SPVs entitled to be heard at liquidation.
Service of process exists to give notice so a party can decide how to defend itself; once aware of proceedings, a party cannot complain of denial of hearing. The properties were preserved only pending resolution by the Official Receiver, and CIP retains the opportunity to account to the liquidator for the loan notes or dispute them.
Separate legal personality, privity, fraud and tracing
The trial judge made no definitive findings on separate legal personality, privity, fraud or tracing; he only preserved assets on a prima facie basis pending determination by the liquidator, so no principle was disregarded.
The judge preserved properties acquired with creditors' money without deciding their status, leaving determination to the Official Receiver as liquidator, with the SPVs free to be heard then. Expressing conclusive views would tie the hands of the court that will ultimately hear the matters; a court may only express prima facie views in such circumstances.
Legal principles established
#- A Creditors' Committee has locus standi to apply for termination of an administration and to act for creditors without a fresh members' resolution; creditors may apply individually, collectively or through their committee.
- Once a court has made an administration order, it retains residual power, on a creditor's application or an application to extend, to treat the application as a liquidation application under section 533 of the Insolvency Act; section 426's public-interest limitation applies only to orders, not to who may invoke section 533.
- An appellate court will not interfere with the trial court's exercise of discretion on extending an administration absent error of law or principle, irrelevant or ignored considerations, or a plainly wrong decision.
- Where a party knew or ought to have known of proceedings, it cannot complain that its right to be heard was violated for lack of formal service.
- Where the only assets of companies under administration are unenforced loan notes against related SPVs funded by creditors' money, a court may issue preservation orders over the SPV projects pending liquidation, without making definitive findings on fraud or tracing.
Court orders
#- 1.The four consolidated appeals were dismissed
- 2.Costs awarded to the Official Receiver and the Creditors' Committees of Cytonn High Yield Solutions LLP and Cytonn Real Estate Project Notes LLP
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- Insolvency Petition Nos. E063 of 2021 and E064 of 2021 (rulings on applications dated May 19, 2022 and October 5, 2022)
- Jurisdiction invoked
- First appellate jurisdiction under the Appellate Jurisdiction Act (sections 3A and 3B), sitting as a first appellate court under Rule 31(1)(a) of the Court of Appeal Rules
- Consolidated with
- Civil Appeal No. E154 of 2023, Civil Appeal No. E155 of 2023, Civil Appeal No. E424 of 2023, Civil Appeal No. E425 of 2023
Relief refused
#Setting aside the orders of the High Court terminating the administration, appointing the Official Receiver, issuing preservation orders over the SPV projects and declining to extend the administration
On fresh appraisal of the evidence, the learned Judge's decision could not be faulted; the administration had not achieved its objectives and the Administrator's conduct and material non-disclosure justified the orders
Declaration that the preservation orders against the assets of the SPV (Cytonn Integrated Project LLP) be lifted
The trial judge made no definitive finding on the status of the properties; preservation was an interim step and the SPVs may still raise their grievances before the Official Receiver/liquidator
Costs
Appeals dismissed with costs to the Official Receiver and the Creditors' Committees of Cytonn High Yield Solutions LLP and Cytonn Real Estate Project Notes LLP.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is therefore our holding that the Creditors' Committees had the locus to file the applications for the termination of the administration.
Where there is an application for the extension of the administration, the court may well consider it as a fresh application in which event, it could, properly, issue a liquidation order instead.
We will not interfere with the exercise of the trial court's discretion merely because our decision would have been difierent had we been sitting as the trial court.
Once the fact of the existence of the proceedings is brought to the knowledge of a person, that person cannot be heard to complain that his right to be heard was violated.
The learned Judge did not make a definitive finding as regards the status of the said properties but left that determination to be made by the Oficial Receiver, as liquidator of the two companies.
Having subjected the material placed before the learned judge to fresh and exhaustive scrutiny, it is our independent finding that the learned Judge's decision cannot be faulted. We accordingly dismiss these appeals with costs to the Oficial Receiver and the Creditors' Committees of Cytonn High Yield Solutions LLP and Cytonn Real Estate Project Notes.
Regulatory authorities must, therefore, be keen to ensure that right from the point of registration, no entity is permitted to misuse the cloak of incorporation in order to shield, initiate or perpetuate fraud, wrongful conduct or evade obligations and in the process, cause harm to the public.
Issues in the judgment
#The number of creditors is stated inconsistently as 886 for CPN in the affidavit and 866 in the grounds of appeal
The appellant in Civil Appeal No. E154 of 2023 is indicated as CHYS but the memorandum shows it is brought by Kereto Marima as former Administrator; similarly E155 of 2023; a duplication exists between E424 and E425 of 2023
The judgment twice says over Kshs 11 billion was contributed by members of the public numbering over 3000, whereas the affidavit figures attribute Kshs 11,172,133,445 to CHYS alone and 4,180,992,923 to CPN (886 partners); the aggregate exceeds the figure quoted in the ruling
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cytonn High Yield Solutions (CHYS) In Liquidation) & 2 others v Official Receiver & 17 others; Creditors’ Committee for CPN Llp (In Liquidation) (Interested Party) (Civil Appeal E154, E155, E424 & E425 of 2023 (Consolidated)) [2025] KECA 1951 (KLR)", Case Analysis (2025). Civil Appeal Nos. E154 of 2023, E155 of 2023, E424 of 2023 and E425 of 2023 (consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1951/eng@2025-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.