Maina v Resolution Insurance Company Limited (Civil Suit E260 of 2022) [2025] KEMC 153 (KLR)
The bottom line
#A Kenyan court has confirmed that you cannot sue Resolution Insurance—or any company under liquidation—without first getting the insolvency court's permission.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection was a pure point of law
The objection under Section 432(2 & 3) of the Insolvency Act was a pure point of law requiring no factual interrogation and therefore sustainable
Applying Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd and the Supreme Court's guidance in Aviation and Allied Workers Union Kenya v Kenya Airways Ltd, the court held that the objection did not depend on ascertaining facts or judicial discretion. The objection rested on the statutory moratorium under the Insolvency Act following the appointment of an interim liquidator over Resolution Insurance Company Limited.
Whether the plaintiff's suit could proceed without leave of the Insolvency Court
The suit could not proceed without leave; the plaintiff, as policy holder, must seek approval of the Insolvency Court to continue the action during the moratorium
Relying on Section 432(2) of the Insolvency Act, the moratorium jurisprudence in Hoggers Limited (In Administration), Blue Shield Insurance Company Ltd and Midlant Energy Limited, the court held that the moratorium protects the company in liquidation from creditors' proceedings to preserve pari passu distribution. The plaintiff's estoppel and legitimate expectation arguments did not displace the statutory requirement for leave.
Legal principles established
#- A preliminary objection must be a pure point of law, argued on the assumption that all facts pleaded by the other side are correct
- Once a liquidation order is made or a provisional liquidator appointed, legal proceedings against the company may be begun or continued only with the approval of the Court
- The purpose of a moratorium is to give the administrator breathing space and insulate the company from aggressive creditors; a party wishing to institute a claim against a company under liquidation must seek leave of the Court
Court orders
#- 1.An order that the Preliminary Objection has merits and is allowed
- 2.A stay of all proceedings subsisting against Resolution Insurance Company (Under Statutory Management) in this suit during the currency of the moratorium unless leave of the Insolvency Court is sought
- 3.Costs to the defendant
- Jurisdiction invoked
- Original civil jurisdiction of the magistrates' court; proceedings governed by the Insolvency Act, 2015 on moratorium over a company under liquidation/statutory management
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maina v Resolution Insurance Company Limited (Civil Suit E260 of 2022) [2025] KEMC 153 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/153/eng@2025-07-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.