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ELCPartially AllowedCivil Suit No 40 of 2006· [2024] KEELC 6429 (KLR)

Maarifa Developers Limited & another v Middle East Bank Limited & 4 others; Mereka (Intended Interested Party) (Civil Suit 40 of 2006) [2024] KEELC 6429 (KLR)

Environment and Land Court
18 September 2024
4,456 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Environment and Land Court at Mombasa, per L. L. Naikuni J, determined two consolidated notices of motion arising in a suit by Maarifa Developers Limited and Austin Salmon Kitololo against Middle East Bank Kenya Limited. The 1st Defendant sought dismissal of the suit under Section 13 of the Insolvency Act and Order 24 Rule 6 of the Civil Procedure Rules on the ground that the 2nd Plaintiff, a director of the 1st Plaintiff, had been adjudged bankrupt. The court framed three issues: the 2nd Plaintiff's capacity to sue, the joinder of David M. Mereka as interested party, and costs. On the first issue, the court held that the suit had been filed 17 years before the bankruptcy order, that the insolvency bar on proceedings applies to creditors and not debtors as per Surjit Singh Hunjan, and that the 1st Plaintiff is a separate legal entity from its bankrupt director; the application was dismissed. On joinder, the court applied Order 1 Rule 10(2) and the Kingori v Chege tests, holding that Mereka, a former advocate of the Plaintiffs holding a taxed bill of Kshs 9,199,868 who procured the bankruptcy order, had a sufficient interest in the still-live proceedings; he was joined as 1st Interested Party with leave to file a defence and counterclaim, and M/s Mereka & Company Advocates were allowed on record for him. The court declined to award costs on either application. The matter was fixed for hearing on 3rd, 16th and 17th October 2024.

Key legal issues

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01

Capacity of an adjudged bankrupt to continue prosecuting a suit

Holding

The application to dismiss the suit for the 2nd Plaintiff's bankruptcy was unmerited because the suit predated the bankruptcy order by 17 years, the insolvency bar targets creditors not debtors, and the 1st Plaintiff company is a separate legal entity that can sue independently.

Reasoning

The court noted the bankruptcy order issued on 29th September 2023, long after filing. Relying on Surjit Singh Hunjan, the court accepted that Section 48(1) of the Insolvency Act bars creditors, not debtors, from proceedings. The 1st Plaintiff, being a limited company with perpetual succession, is distinct from its bankrupt director, and nothing prevented the 2nd Plaintiff from continuing the suit until a bankruptcy trustee elects to take it up.

02

Joinder of an interested party in pending proceedings

Holding

The joinder application was allowed because the suit is still alive at the interlocutory stage, and the intended interested party, a former advocate with a taxed advocate/client bill against the 1st Plaintiff and the creditor who procured the bankruptcy order, has a sufficient interest in the proceedings.

Reasoning

The court applied Order 1 Rule 10(2) and the tests in Kingori v Chege, holding that a party may be joined where his presence is necessary to effectually and completely adjudicate on all questions. Joinder is permissible at any stage, even appellate, provided the proceedings are alive. Mereka, whose firm obtained a taxed bill of Kshs 9,199,868 and triggered the bankruptcy of the 1st Plaintiff, demonstrated sufficient interest.

p. 8
03

Costs of the two applications

Holding

Although costs follow the event under Section 27(1) of the Civil Procedure Act, the court in its discretion elected not to award any costs on either application.

Reasoning

The court reiterated the established principle that costs are discretionary and follow the event, citing Harun Mutwiri, KUCFAW v Bidco and Hussein Muhumed Sirat. Nevertheless, upon considering the circumstances, the court exercised its discretion to decline awarding costs to any party on the two motions.

p. 9

Legal principles established

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  • The person barred from commencing or continuing proceedings after a receiving order under the insolvency legislation is a creditor and not a debtor.
  • A limited company is a separate legal entity with perpetual succession, distinct from the bankruptcy of its director.
  • An application for joinder of an interested party may only be made where the proceedings are still alive and pending.

Court orders

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  1. 1.The Notice of Motion application dated 9th May, 2024 by the 1st Defendant was found to lack merit and was dismissed with no orders as to costs
  2. 2.The Notice of Motion application dated 20th May, 2024 by the Interested Party was found to have merit and was allowed with no orders as to costs
  3. 3.An order joining David M. Mereka as the 1st Interested Party in the proceedings, with leave to file a defence and counterclaim if any
  4. 4.Leave granted to M/s Mereka & Company Advocates to formally come on record for the 1st Interested Party
  5. 5.The matter to be fixed for hearing on 3rd, 16th and 17th October, 2024 respectively
  6. 6.There shall be no orders as to costs

Authorities

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Legislation

  • Insolvency ActSection 13; Section 48(1)
  • Bankruptcy Act (repealed)Section 9(1)
  • Civil Procedure ActSections 1A, 1B; Section 27(1)
  • Civil Procedure Rules, 2010Order 1 Rule 1; Order 1 Rule 10(2); Order 1 Rule 15; Order 24 Rule 6; Order 51 Rule 1; Order 9; Order 51(2)

Cases cited (14)

  • Surjit Singh Hunjan & another v The Deposit Protection Fund Board (sued as the liquidator of the Prudential Building Society
    [2012] eKLR
  • Re: Estate of John Githinji (Deceased)
    [2018] eKLR
  • Florence Nafula Ayodi & 5 others v Jonathan Ayodi Ligure, John Tabalya Mukite & another; Benson Girenge Kidiavai & 67 others (applicants/intended interested parties)
    [2021] eKLR
  • Elizabeth Nabangala Wekesa v Erick Omwamba & 3 Others; Esther Momanyi Omwamba (applicant)
    [2021] eKLR
  • Leonard Kimeu Mwanthi v Rukaria M'twerandu M'iringu; Nathaniel Kithinji Ikiugu & 4 others (Intended Interested Parties)
    [2021] eKLR
  • David Kiptugen v Commissioner of Lands, Nairobi & 4 others
    [2016] eKLR
  • Communications Commission of Kenya & 4 Others v Royal Media Services Limited
  • Kingori v Chege & 3 Others
    [2002] 2 KLR 243
  • Departed Asians Property Custodian Board v Jaffer Brothers Limited
    [1999] 1 EA 55
  • Civicon Limited v Kivuwatt Limited and 2 Others
    [2015] eKLR
  • Martin Kirima Baithambu v Jeremiah Miriti
    [2017] eKLR
  • Harun Mutwiri v Nairobi City County Government
    [2018] eKLR
  • Kenya Union of Commercial, Food and Allied Workers v Bidco Africa Limited & Another
    [2015] eKLR
  • Hussein Muhumed Sirat v Attorney General & Another
    [2017] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; applications brought under Section 13 of the Insolvency Act Cap. 53, Sections 1A and 1B of the Civil Procedure Act Cap. 21, Order 24 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules 2010, and Order 1 Rule 10(2), Order 9 and Order 51(2) of the Civil Procedure Rules 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Maarifa Developers Limited & another v Middle East Bank Limited & 4 others; Mereka (Intended Interested Party) (Civil Suit 40 of 2006) [2024] KEELC 6429 (KLR)", Case Analysis (2024). Civil Suit No 40 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6429/eng@2024-09-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.