Stephen Cheruiyot Cherono v Kenneth Kiptum Kandie [2016] KEELC 679 (KLR)
The bottom line
#A Kenyan court struck out a bankrupt man's entire lawsuit because he sued personally without court permission or the official receiver, showing bankruptcy freezes your right to litigate.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff had capacity to sue after being declared bankrupt
Yes, the objection was upheld: the plaintiff was the bankrupt Shaheen Saif Saeed and had neither sued through the official receiver/manager of his estate nor obtained leave of the court, contrary to section 9 of the Bankruptcy Act, so the suit was struck out.
The court found the defendant's replying affidavit paragraphs 28-35 alleging the plaintiff's dual identity uncontroverted. A receiving order was made on 25th February 2015 against Shaheen Saif Saeed in Kisumu Bankruptcy Cause No. 05 of 2015, and Gazette notice No. 3004 confirmed it. Section 9(1) of the Bankruptcy Act bars legal proceedings by or against the debtor except with leave. The plaintiff neither sued through the official receiver nor obtained leave, so the preliminary objection succeeded.
Identity of the plaintiff and the bankrupt Shaheen Saif Saeed
The court was satisfied the plaintiff and Shaheen Saif Saeed are the same person, the allegation of dual identity (Kenya/Qatar) being uncontroverted and supported by the receiving order made on the debtor's own petition.
The defendant relied on paragraphs 28-35 of his replying affidavit sworn 17th December 2015, showing dual citizenship (Stephen Cheruiyot Cherono in Kenya, Shaheen Saif Saeed in Qatar), the receiving order of 25th February 2015 issued on the debtor's own petition, and the Gazette notice. The plaintiff did not controvert these averments, and no order granting him leave to sue was produced.
Whether the plaintiff's reply to defence and defence to counterclaim filed on 8th June 2016 without leave could be relied upon
The court did not expressly rule on the admissibility of the late-filed reply, but it plainly did not alter the outcome, since the uncontroverted affidavit evidence of bankruptcy established the incapacity to sue.
The defendant objected that the reply and submissions were filed without leave, pleadings having closed in November 2015, and that the consent of 31st May 2016 only allowed written submissions. The judgment itself does not determine this procedural complaint; the determination rests on the bankruptcy objection under section 9 of the Bankruptcy Act.
Legal principles established
#- A person against whom a receiving order has been made in bankruptcy cannot commence legal proceedings personally except with the leave of the court; suits commenced without such leave are incompetent
Court orders
#- 1.The preliminary objection is upheld
- 2.The suit is struck out with costs
- Jurisdiction invoked
- Original civil jurisdiction; suit and preliminary objection under the Civil Procedure Rules (Order 24 Rule 6) and the Bankruptcy Act (Cap 53), section 9(1)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Stephen Cheruiyot Cherono v Kenneth Kiptum Kandie [2016] KEELC 679 (KLR)", Case Analysis (2016). Not stated in the extract (Eldoret ELCC; suit filed by plaint dated 22.9.2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/679/eng@2016-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.