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High CourtDismissedBankruptcy Cause (second petition; first was No. 3 of 1989)

Saleh Ahmed Al Moody (A Debtor/Petitioner)

High Court of Kenya
15 December 1989
1,150 words in judgment
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The bottom line

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Kenya's High Court dismissed a bankruptcy petition filed to dodge jail and debts, warning courts can refuse receiving orders when petitions abuse the process.

What this practically means

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Executive summary

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Saleh Ahmed Al Moody presented a debtor's petition seeking a receiving order and adjudication of bankruptcy, listing as his only debts decretal sums totalling shs 799,340 from two civil suits. It was his second bankruptcy cause; the first, No. 3 of 1989, was dismissed for non-compliance with the Bankruptcy Act and Rules, after which he was committed to civil jail in HCCC No. 26 of 1988. He filed the present petition on the very day of the committal order. The court accepted, following Re Betts and Re A. Debtor (No. 17 of 1966), that a debtor may properly use bankruptcy machinery to shield himself from committal. However, section 5 of the Bankruptcy Act confers discretion ('may') to make a receiving order, and following Re Bond the court must make an order only where the petition is proper. Here the Statement of Affairs failed to disclose whether the debtor possessed properties listed (e) to (n), contrary to section 16(1); HCCC No. 26 of 1988 had found the petitioner owned a shop, was not poor, and had dishonestly transferred a motor vehicle for shs 180,000 after judgment to defeat execution, and had refused a receiving order under section 102. Entertaining the petition would amount to sitting on appeal over those findings. Holding the petition an abuse of process, evidently designed to avoid compensating accident victims injured in the petitioner's improperly insured matatu, the court dismissed the petition and barred further bankruptcy petitions without leave. Judgment delivered at Mombasa on 15th December 1989 by E.M. Githinji J.

Key legal issues

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01

Whether the court has discretion to refuse a receiving order on a debtor's petition

Holding

Yes; 'may' in section 5 confers discretion, and the proviso to section 8(1) permits refusal where the Statement of Affairs is not in accordance with the Act.

Reasoning

Counsel argued that compliance with the Act and Rules left no discretion. The court held that the wording of section 5 is permissive, and that following Re Bond the imperative duty to make a receiving order applies only where the petition is proper. Where the petition is an abuse of process, the court may refuse or rescind a receiving order.

p. 2
02

Whether this petition was an abuse of process

Holding

Yes; it was a second petition filed the same day as a committal order, with a defective Statement of Affairs, intended to evade civil jail and avoid compensating accident victims.

Reasoning

The Statement of Affairs omitted disclosure of properties listed (e) to (n), breaching section 16(1). HCCC No. 26 of 1988 had found the petitioner owned a shop and had dishonestly transferred a motor vehicle to defeat execution, and had refused a receiving order under section 102. Entertaining the petition would amount to sitting on appeal over that court's findings.

p. 2

Legal principles established

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  • Section 5 of the Bankruptcy Act uses 'may', giving the court discretion to make or refuse a receiving order
  • A proper, non-abusive debtor's petition compels the court to make a receiving order, but not otherwise
  • A debtor who habitually files bankruptcy petitions to defraud creditors is not protected by the Bankruptcy Act
  • A court may dismiss an abusive second petition and bar further petitions without leave

Court orders

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  1. 1.The debtor's bankruptcy petition is dismissed
  2. 2.An order that the petitioner shall not file any other bankruptcy petition without leave of the Court
Jurisdiction invoked
Bankruptcy Act, sections 5, 8(1) and 16(1) (debtor's petition for a receiving order)

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, "Saleh Ahmed Al Moody (A Debtor/Petitioner)", Case Analysis (1989). Bankruptcy Cause (second petition; first was No. 3 of 1989). Source: 

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