The Liquidation Petition by the Creditor, AMRA LEASING LIMITED, is dated 15th December 2020. It is based on the ground that the Company is unable to pay its debts. The debt due to the Petitioner is undisputed and it is founded on a judgment entered for the Petitioner against the Company in a case filed before the Commercial Court, Queen’s Bench Division of the High Court of England and Wales on 9th December 2019 being Claim Number CL-2019-000762. It is not in dispute that the said judgment has not been set aside and was, in fact, recognised and registered in Kenya on 29th May 2020 in NRB HC COMM No. E147 of 2020; AMRA LEASING LIMITED v DAC AVIATION (EA) LIMITED. The Company’s attempts to set aside the registration order has failed and the judgment debt remains unsettled.
The Company has made several proposals to resolve the debt which he been accepted by the Petitioner but it has not honoured them. Likewise, this court has adjourned the hearing of the petition from time to time to enable the Company resolve the matter but without avail. The hearing today, 23rd September 2022, was the last hearing date given.
The Company has now appointed a new counsel to come on record. He informs the court that the Company wishes to make fresh proposals for settlement. The Petitioner opposed to the application for adjournment coming very late in the day.
In view of the history of the matter I rejected the adjournment and ordered the matter to proceed. In reality, the debt due to the Petitioner is uncontested. The Company has not filed any defence to the Petition. The only depositions by the Company are in relation to collateral proceedings seeking to set aside the recognition order and the judgment in England. The courts, both here and in England, have rejected the all applications to set aside the judgment.
From the totality of the evidence, I am satisfied that the judgment debt of GBP 8,992,980.25 together with accrued interest remains unpaid. The irresistible conclusion is that the Company is unable to pay its debts.
In the circumstances, I am inclined to make the Liquidation Order. I will however give the Company a chance to resolve the matter by stay that order for a time. I therefore make the following orders:
(a) A Liquidation order be and is hereby issued against the Respondent, DAC AVIATION (EA) LIMITED.
(b) The Liquidation order is stayed for a period of three (3) months from the date hereof to enable the parties agree terms of payment of the judgment debt.
(c) The parties are at liberty to move the court for further and other orders.
DATED and DELIVERED at NAIROBI this 23rd day of SEPTEMBER 2022.
D. S. MAJANJA
JUDGE