In the application dated 26th January 2022, KCB Bank Kenya Limited, a secured creditor, seeks leave to sell a property owned by DAC Aviation (EA) Ltd (“the Company”) being LR No. 12310 (IR 142930) over which its hold a charge. I am constrained to dismiss the application in limine on the ground that as a secured creditor, the Bank is entitled to exercise its statutory power of sale without recourse to the court exercising insolvency jurisdiction. I therefore reiterate the holding in East Africa Cables PLC v Ecobank Kenya Limited HC COMM Misc. E043 of 2020 [2020] eKLR that it is settled law that a secured creditor is entitled to exercise its rights under the security document or statute in the event of default by the company and that the power is not subject to insolvency proceedings commenced against the company by any other creditor.
As regard the plea that HC COMM No. E778 of 2021, DAC Aviation (EA) Ltd v KCB Bank Kenya Limited where the Company has sought an injunction to restrain the sale of the subject property should be dealt with in this petition, I reject the plea as the petition has been determined by issue of a liquidation order that has merely been stayed. I direct that Bank to take necessary steps in that suit.
DATED and DELIVERED at NAIROBI this 17th day of FEBRUARY 2023
D.S. MAJANJA
JUDGE