'1.The application before this court is a notice of motion dated 7th November 2024 filed under section 32(4) of the Insolvency Act ,section 1A and 3A of the Civil Procedure Act and all other enabling provisions of the law.
The petitioner is seeking orders THAT;
a)SPENT
b)SPENT
c)SPENT
d)Pending the hearing and determination of the bankruptcy petition herein there be a stay of execution proceedings in MAKUENI HCCC NO.2 OF 2018
e)Costs of the application be in the cause
2.The application is supported by the affidavit of Charles Nyamweya Marube dated 7th November 2024 based on the grounds THAT;
He previously operated a transport business and holds a National ID 0379464 and a Kenya Revenue Authority Number A000116742.
On March 1, 2015, his Mercedes truck (KBS 054L/LD9802) was involved in an accident with a vehicle (KCA 801G) owned by Spanish Coach Express Ltd and both vehicles were severely damaged and written off.
3. He reported the incident to his insurer and left the matter to them and was unaware that the creditors had sued him in Makueni HCCC no 2 of 2028 and judgment was entered on October 11, 2019, for Kshs. 15,554,000/- against him. In July 2023, he was served with a Notice to Show Cause regarding failure to pay Kshs. 17,106,210/-.He later learned that the insurance had paid Kshs. 5,000,000/-, and the balance remained unpaid and has attached the decree.
and the court entered judgment and at the time of being served with the notice to show cause the amount stood at 17,106,210 together with costs and warrants of arrest were issued to him in regards to his default.
4. He said that is not able to settle the debt and does not have any assets under his name and is currently relying on his wife and thus has instituted the bankruptcy petition against himself to enable him to settle all his debts.
5. The respondent filed replying affidavit dated 17.3.25 sworn by Mr GIBSON MAINA KAMAU the Legal Affairs Manager of Messrs Heritage Insurance Company Limited who are the insurers of the Plaintiff/Decreeholder and are the ultimate beneficiaries of this case under the Doctrine of Subrogation hence competent and duly authorized to swear this Affidavit. Also that judgment was entered on 11th October 2019 in favour of the Plaintiff for Kshs. 15,554,000/- plus costs and interest. A decree and certificate of costs were extracted on 4th August 2020 and 28th July 2020, respectively see annexure “GMK1” is a copy of the Judgement dated 11th October, 2019) .Further that the Respondent herein thereafter extracted a Decree dated 4th August, 2020 and Certificate of Costs dated 28th July, 2020 (see annexure “GMK 2” copies of the Decree dated 4th August, 2020 and Certificate of Costs dated 28th July 2020 )after judgement was entered the Applicant/Judgement - Debtor’s insurer Messrs. CIC Insurance Company Limited paid the sum of Kshs. 5,000,000/- and thereafter declined to make any further payment which they termed as exceeding the policy limit. (see annexure “GMK 3” copy of a Letter dated 1st November 2019 and Remittance Advice dated 22nd November 2019) . Mr Kamau also deponed that the judgment is now about 5 years old and yet the applicant has refused to settle the balance of the decretal sum of Kshs. 17,109,210.59 as per the Warrants of arrest dated 5th June 2024 (.annexure “GMK 4” is a copy of the Warrants of Arrest dated 5th June 2024) .
5. He further stated that he has been advised by his counsel that instant application is an afterthought and is manifestly devoid of any real triable issues for consideration for this Honourable Court hence the Respondents are entitled to execute the Judgeme. Also that they duly appointed an investigator to trace the whereabouts of the Applicant/Judgement – Debtor and as per the Investigation Report dated 19th December 2016 by Messrs. Windscope Loss Assessors owned a house in Akiba Estate Nairobi and it found that the applicant owned Title No. NAIROBI/BLOCK 72/1088 situate in Nairobi which property was capable of discharging the Judgement sum. annexure “GMK 5” is a copy of the Investigation Report dated 19th December 2016) He deponed that the Debtor in an attempt to evade the judgement of the Honourable court transferred the property to his wife/daughter Rodah Moraa Nyamweya in an effort to defeat the judgement of the court contrary to Order 22 rule 34 (2)(a)(ii) of the Civil Procedure Rules. ( annexure “GMK 6” is a copy of the Certificate of Search dated 21st May 2024) . Also that the said transfer was not disclosed . Further that the debtor is not entitle to the reliefs sought as his conduct MAKUENI HCCC NO. 2 OF 2018 SPANISH COACH EXPRESS LIMITED ~VS~ CHARLES NYAMWEYA MARUBE is unconscionable and not equitable .
6. The applicant /debtor filed a Supplementary Affidavit dated 6.5. 2025. in which he admits that the Makueni Judgment exists but explains he did not participate since the insurance handled the matter. He reiterates he has not refused to pay the decretal sum but that is not financially stable and hence this bankruptcy petition. He questions the relevance of the 2016 investigation (conducted before judgment) and claims the respondent has not explained its purpose. He denies transferring the property Nairobi/Block 72/1088 to avoid paying the decretal sum and he said the transfer was done before judgment in HCCC No. 2 of 2018 and that the property is no longer in his name . He said he has acted honesty in all dealings in the matter and denies attempting to defeat justice. He also denies that he concealed the bankruptcy proceedings and cited an advertisement in the Star Newspaper on 8th January 2025. He further Stated that depends on his wife for upkeep, affirming no intention to frustrate recovery efforts. He asked the court to grant the prayers sought in his application.
In his written submissions ,the applicant also invoked section 32(4) of the Insolvency Act, which allows the court to stay execution proceedings upon presentation of a bankruptcy petition and sections 1A and 3A of the Civil Procedure Act, granting the court inherent power to make just and equitable orders. Also that the bankruptcy petition herein is pending . Also that there is an imminent threat of execution by the creditor in MAKUENI HCCC NO. 2 OF 2018and that the petition may be rendered nugatory unless the stay is granted. The applicant relied on the decision of Justice E.C. Mwita in Re Jai Prakash and Tax(29th July,2022) [2022] KEHC 11075 (KLR) where the court held that the petition will be rendered irrelevant if the orders sought are not granted and thus the execution is hereby stayed pending hearing and determination of this petition.”
This precedent is cited to argue that where execution is imminent, and a bankruptcy petition is pending, the court should stay execution to preserve the petition’s relevance.
The Applicant further submitted that the Replying Affidavit sworn on 17th March 2025 by the creditor confirms the threat of execution.
The applicant submitted that there is only one issue which the court ought to determine on that is whether under the circumstances, the Applicant is entitled to a stay of execution pending determination of the bankruptcy petition.
The Applicant further submitted that he is deserving of the same and emphasizes that it is settled practice for courts to stay execution of proceedings upon presentation of a bankruptcy petition to allow for its full ventilation on the merits.
The applicant also cited In Re The Matter of Zipporah Wambui Mathara [2010] eKLR, where Justice M.K. Koome held:
“...this court is given discretion to issue an order of stay of execution in order to give the Official Receiver the opportunity to consolidate and administer the estate of the debtor...”
Also Re Zarara Oil & Gas Co. Ltd, Misc App E532 of 2021 [2021] KEHC 191 (KLR) – Justice D.S. Majanja ruled that foreign insolvency proceedings were prima facie proof of financial distress, and stayed execution proceedings to preserve the insolvency process. That financial statements or proof from all creditors is not mandatory, and that issues of disclosure can be addressed during the petition hearing under paragraph 23 of the Fifth Schedule of the Insolvency Act.
Applicant also cited Re Stanley Maina Mwangi, Bankruptcy Cause E003 of 2021 [2022] KEHC 11656 (KLR) – Justice A. Mshila granted a stay of execution pending hearing of the bankruptcy petition notwithstanding the existence of execution proceedings emanating from a civil claim. In In re Johnson Mwendwa Muthengi (Debtor/Applicant) (Insolvency Cause E010 of 2021)
[2022] KEHC 15657 (KLR) (Commercial and Tax) (14 October 2022) (Ruling)
Neutral citation: [2022] KEHC 15657 (KLR) it was held that in Order 42 Rule 6(2) of the Civil Procedure Rules, namely:-
a. that substantial loss may result to the applicant unless the order is made;
b. that the application has been made without unreasonable delay; and
c. that such security as the court orders for the due performance of such decree or order as may
ultimately be binding on the applicant has been given. it is noteworthy that the applicant has
not endeavored to satisfy those conditions. In my respectful view, the applicant’s fears are propelled by the fact that the process of execution has been put in motion, which does not amount to substantial loss or proof of any other ground for stay of execution.’’
The Applicant urges the court to be guided by the above was held that jurisprudence and grant Prayer 4 as sought in the application dated 7th November 2024.
7. The respondent also filed submissions and faulted the application for failing to meet the legal threshhold for grating of equitable remedies as the applicant has defaulted since the year 2019 , that it does not raise any triable issues, it is an afterthought, that the applicant is guilty of dissipation of assets coupled with material non – disclosure and non-compliance with Section 32(4) and (5) of the Insolvency Act and thus the application is devoid of merit , incompetent, and an abuse of this Honourable Court’s process. Respondent cited the following cases ;
i. Re Satya Bhama Gandhi (Insolvency Cause E027 of 2024) [2025] KEHC 11068 (KLR) (Commercial and Tax) (24 July 2025) (Ruling).
ii. Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR.
iii. Mrao Ltd –vs- First American Bank of Kenya Ltd & 2 Others (2003) KLR 125.
iv. Halima Haji Sarah v Multiple Haurliers (E.A) Limited & another [2022] KEELC 912 (KLR).
v. David Kamau Gakuru v National Industrial Credit Bank Ltd [2002] eKLR.
vi. Job Kilach vs Nation Media Group Ltd, Salaba Agencies Ltd & Michael Rono (2015) eKLR.
vii. Jonathan Cheruiyot & another v Bungoma Chemist Limited [2019] KEHC 7629
8. The respondent argued that the court ought to consider the following issues for determination :
a. Whether the Applicant is entitled to the stay of execution proceedings in Makueni HCCC No. 2 of 2018.
b. Whether the Applicant’s failure to comply with the statutory requirement of advertisement under Section 32(5) of the Insolvency Act, 2015 renders the instant motion incompetent.
The respondent submitted that the applicant has not satisfied the grounds for granting stay of execution as was held in the case of
a Re Satya Bhama Gandhi (Insolvency Cause E027 of 2024) [2025] KEHC 11068 (KLR) (Commercial and Tax) (24 July 2025) (Ruling), where it was held
“The applicable test in such instances aligns with the general principles on the grant of interlocutory injunctive relief as laid out in Giella v Cassman Brown & Co. Ltd [1973] E.A. 358, which require the Applicant to demonstrate a prima facie case, that irreparable harm would result if the stay is not granted, and that the balance of convenience tilts in favour of the Applicant”.
Also Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR where it was held that an applicant must satisfy the triple requirements of Giella (supra). Thus the Respondent submitted that the only issues for determination should be whether:
a. The Plaintiff has a prima facie case with a probability of success.
b. Irreparable injury shall be suffered if a temporary injunction is not granted and that damages shall not being an adequate remedy; and
c. If there are any doubts as to (ii), the Court it will decide an application on the balance of convenience.
c. Mrao Ltd –vs- First American Bank of Kenya Ltd & 2 Others (2003) KLR 125 where His Lordship Bosire J.A. held that:
“So what is a prima facie case? I would say that in cases it is a case in which on the material presented to the court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter…
Mr. Wasuna appeared to me to imply that the test as to whether or not a prima facie case had been made out is satisfied if the applicant is able to show the existence of an arguable case.
But as I earlier endeavoured to show, and I cited ample authority for it, a prima facie case is more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right, and the probability of the applicant’s case upon trial. That is clearly a standard which is higher than an arguable case.”
9. He Further cited the case of Bahadurali Ebrahim Shamji v. Al Noor Jamal & 2 Others Civil Appeal No. 210 of 1997 which was cited with approval in Halima Haji Sarah v Multiple Haurliers (E.A) Limited & another [2022] KEELC 912 (KLR) where the Court of Appeal held as follows:
“It is perfectly well-settled that a person who makes an ex parte application to the court – that is to say, in the absence of the person who will be affected by that which the court is asked to do – is under an obligation to the court to make the fullest possible disclosure of all material facts within his knowledge, and if he does not make the fullest possible disclosure then he cannot obtain any advantage from the proceedings, and he will be deprived of any advantage he may have already obtained.
… and the applicant must state fully and fairly the facts, and the penalty by which the court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the court will set aside any action which it has taken on the faith of the imperfect statement The duty of disclosure therefore applies not only to material facts known to the applicant but also to any additional facts which he would have known if he had made sufficient inquiries.“
10. Counsel also cited the celebrated case of Giella –vs- Cassman Brown (1973) EA 358 on temporary injunctions and the Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR where it was held that an applicant must satisfy the triple requirements of Giella (supra). Thus the Respondent submitted that the only issues for determination should be whether:
a. The Plaintiff has a prima facie case with a probability of success.
b. Irreparable injury shall be suffered if a temporary injunction is not granted and that damages shall not being an adequate remedy; and
c. If there are any doubts as to (ii), the Court it will decide an application on the balance of convenience.
11. It was submitted that the Applicant is not entitled to any stay of execution orders as sought for the following reasons:
i) The Applicant does not have a prima facie case with a probability of success.
12. Your Honour, what constitutes a prima facie case was discussed in Mrao Ltd –vs- First American Bank of Kenya Ltd & 2 Others (2003) KLR 125 where His Lordship Bosire J.A. held that:
“So what is a prima facie case? I would say that in cases it is a case in which on the material presented to the court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter…
Mr. Wasuna appeared to me to imply that the test as to whether or not a prima facie case had been made out is satisfied if the applicant is able to show the existence of an arguable case.
But as I earlier endeavoured to show, and I cited ample authority for it, a prima facie case is more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right, and the probability of the applicant’s case upon trial. That is clearly a standard which is higher than an arguable case.”[emphasis added]
13. Also that in order to determine whether the Applicant has established a prima facie case one with a reasonable likelihood of success, the court must assess whether:
a. The Applicant has presented credible evidence of insolvency.
b. The application is made in good faith so as not to defraud creditors.
14. Based on the above, it is our humble submission that the Applicant has not met the threshold for a prima facie case as stipulated in the above case for the following reasons:
• The Applicant’s material non-disclosure to the Honourable Court regarding the dissipation of assets at the time of filing the present Application.
15. Also that Applicant was the registered proprietor of Title No. Nairobi/Block 72/1088 and the respondent has learnt that he is guilty of transferring the same to the wife or daughter during the pendency of Makueni HCCC No. 2 of 2018 which is amounts to dissipation of assets by the judgment debtor which is prohibited under Order 22 Rule 34 of the Civil Procedure Rules, 2010.
16. Further that the applicant seeks equitable orders which are discretionally and yet he had not come to equity with good hands and thus he is not entitled to equitable orders . They relied on the case of David Kamau Gakuru v National Industrial Credit Bank Ltd [2002] eKLR where the Court of Appeal held as follows:
“In our view, the injunction that was sought by the appellant, being an equitable remedy, should not issue in his favour as he demonstrated openly by his conduct that he was undeserving of the equitable relief.”
17. The Respondent submitted that the Applicant has failed to raise any triable issue to warrant the intervention of this Honourable Court as the decretal sum in question has been outstanding since 2019, when the judgment was delivered and has neither challenged the judgment nor satisfied .
18. Also that application is an afterthought as it has been filed 5 years after judgment and that the application was filed immediately after issuance of the warrant of arrest. application filed immediately after the issuance of a Warrant of Arrest speaks volumes.
19. It further relied on the case of Job Kilach vs Nation Media Group Ltd, Salaba Agencies Ltd & Michael Rono (2015) eKLR where in defining what a triable issue is the court observed that;
“A bona fide triable issue is any matter raised by the defendant that would require further interrogation by the court during a full trial. The Black''s Law Dictionary defines the term “triable” as, “subject or liable to judicial examination and trial”. It therefore does not need to be an issue that would succeed, but just one that warrants further intervention by the Court”
b. Whether the Applicant’s failure to comply with the statutory requirement of advertisement under Section 32 (4) and (5) of the Insolvency Act, 2015 renders the instant motion incompetent.
20. It was submitted that Section 32 (4) of the Insolvency Act, 2015 provides as follows:
4) A debtor who makes an application under this section shall publish a notice of the application in:
a. A newspaper circulating within the region in which the debtor ordinarily resides; and
b. In such other publications (if any) as may prescribed by the insolvency regulations for purposes of this section.
21. Also that the applicant failed to comply with t directions issued by this court on the 11th December, 2024 which required publication of the petition in a newspaper of nationwide publication. It said that Section 32(5) of the Insolvency Act, 2015 gives the Honourable Court the power to decline to hear the application if subsection (4) has not been complied with to its satisfaction and it asked the court to decline to hear the application as it goes to the root of the application.
22. Respondent relied on the case of Jonathan Cheruiyot & another v Bungoma Chemist Limited [2019] KEHC 7629 (KLR) where the Honourable Court held that :
“Section 32(4) of the Act is in Mandatory terms that the debtor shall publish the notice of the application. The reason for this is to enable all persons to know of the application, the notice to debtors and notice of other people that the applicant intends to make an application and beware not extend credit to him. It is therefore mandatory that the application be published. Where the applicant has not published the application, then the application cannot be heard. Indeed Section 32(5) provisions that the court may decline to hear the application if the provisions of Section 32(4) have not been complied with to its satisfaction.
It is the duty of the applicant to publish the notice of the application in these proceedings, no evidence of the publication has been tendered or annexed. Indeed in its response the counsel for applicant submits erroneously in my view that it is not mandatory or can be made at any time. Publication is a necessary step in these proceedings and as such step has not been made. I therefore uphold the preliminary objection and decline to consider this application as the requirements of the Insolvency Act have not been complied with.”
23. IN THE ALTERNATIVE the Respondent Submitted that even if the Applicant claims to have published the Petition in a newspaper of nationwide circulation, the copy placed on the Court record is so unclear and blurred that it cannot be said to demonstrate compliance.
24. The alleged extract is illegible to the extent that even a reasonable creditor, the Respondent included, cannot discern the contents. This undermines the very statutory purpose of publication, which is to bring the Petition to the attention of creditors and the public in a transparent manner. A publication that is unreadable is in effect no publication at all.
ANALYSIS AND DETERMINATION
25. Having carefully considered the motion, affidavits, annexures, and submissions, the following issues arise for determination:
1. Whether the applicant complied with Section 32 (4) of the Insolvency Act.
2. Whether the Applicant has met the legal threshold for grant of stay of execution
3. Whether the bankruptcy petition was filed in good faith or constitutes an abuse of court process.
26. On whether the applicant complied with Section 32 (4) of the Insolvency Act.
The respondent argued that the applicant has not complied with Section 32 (4) of the Insolvency Act pursuant to orders of this court issued on 11.12.24 and thus the pray for stay of execution should not be heard . The applicant said that he complied with the direction for advertisement of the petition but this is denied by the re4spodent who said that the petition was not gazetted and / or that the notice annexed is not legible . I have seen the said annexture the same contains several notices in very small fonts which are illegible are rightly submitted by the respondent . The newspaper shows that it is the ‘’Star ‘’but the date of the same is also not visible. Nothing would have stopped the applicant from providing a legible copy of the gazette if it is true that the same was gazetted.
Section 32 (4) and (5) of the insolvency Act provides that -
(4)A debtor who makes an application under this section shall publish a notice of the application in—(a)a newspaper circulating within the region in which the debtor ordinarily resides; and
(b)in such other publications (if any) as may prescribed by the insolvency regulations for purposes of this section.
(5)The Court may decline to hear the application if subsection (4) has not been complied with to its satisfaction.
. 27. I am not satisfied at this stage that the applicant gazetted the petition herein under section 32 (4) of the Insolvency Act. This is a court of equity and the applicant is seeking equitable orders at this stage . He has not come to court with clean hands and thus he is not entitled to consideration of the prayer stay orders . This is an omission which cannot be overlooked and I decline to hear the application. I proceed to strike it out under Section 32 (5)rule 5 of the insolvency Act . Costs to the respondent
T.A ODERA
JUDGE
22.10.25
DELIVERED VIRTUALLY VIA TEAMS PLATFORM IN THE PRESENCE OF MR NYAMWEYA FOR THE APPLICANT & MISS KAVATA FOR THE RESPONDENT CA MR KIPCHIRCHIR
ORDER : FURTHER MENTION ON
2.3.26
T.A ODERA
JUDGE
23.10.25
'
The petitioner is seeking orders THAT;
a)SPENT
b)SPENT
c)SPENT
d)Pending the hearing and determination of the bankruptcy petition herein there be a stay of execution proceedings in MAKUENI HCCC NO.2 OF 2018
e)Costs of the application be in the cause
2.The application is supported by the affidavit of Charles Nyamweya Marube dated 7th November 2024 based on the grounds THAT;
He previously operated a transport business and holds a National ID 0379464 and a Kenya Revenue Authority Number A000116742.
On March 1, 2015, his Mercedes truck (KBS 054L/LD9802) was involved in an accident with a vehicle (KCA 801G) owned by Spanish Coach Express Ltd and both vehicles were severely damaged and written off.
3. He reported the incident to his insurer and left the matter to them and was unaware that the creditors had sued him in Makueni HCCC no 2 of 2028 and judgment was entered on October 11, 2019, for Kshs. 15,554,000/- against him. In July 2023, he was served with a Notice to Show Cause regarding failure to pay Kshs. 17,106,210/-.He later learned that the insurance had paid Kshs. 5,000,000/-, and the balance remained unpaid and has attached the decree.
and the court entered judgment and at the time of being served with the notice to show cause the amount stood at 17,106,210 together with costs and warrants of arrest were issued to him in regards to his default.
4. He said that is not able to settle the debt and does not have any assets under his name and is currently relying on his wife and thus has instituted the bankruptcy petition against himself to enable him to settle all his debts.
5. The respondent filed replying affidavit dated 17.3.25 sworn by Mr GIBSON MAINA KAMAU the Legal Affairs Manager of Messrs Heritage Insurance Company Limited who are the insurers of the Plaintiff/Decreeholder and are the ultimate beneficiaries of this case under the Doctrine of Subrogation hence competent and duly authorized to swear this Affidavit. Also that judgment was entered on 11th October 2019 in favour of the Plaintiff for Kshs. 15,554,000/- plus costs and interest. A decree and certificate of costs were extracted on 4th August 2020 and 28th July 2020, respectively see annexure “GMK1” is a copy of the Judgement dated 11th October, 2019) .Further that the Respondent herein thereafter extracted a Decree dated 4th August, 2020 and Certificate of Costs dated 28th July, 2020 (see annexure “GMK 2” copies of the Decree dated 4th August, 2020 and Certificate of Costs dated 28th July 2020 )after judgement was entered the Applicant/Judgement - Debtor’s insurer Messrs. CIC Insurance Company Limited paid the sum of Kshs. 5,000,000/- and thereafter declined to make any further payment which they termed as exceeding the policy limit. (see annexure “GMK 3” copy of a Letter dated 1st November 2019 and Remittance Advice dated 22nd November 2019) . Mr Kamau also deponed that the judgment is now about 5 years old and yet the applicant has refused to settle the balance of the decretal sum of Kshs. 17,109,210.59 as per the Warrants of arrest dated 5th June 2024 (.annexure “GMK 4” is a copy of the Warrants of Arrest dated 5th June 2024) .
5. He further stated that he has been advised by his counsel that instant application is an afterthought and is manifestly devoid of any real triable issues for consideration for this Honourable Court hence the Respondents are entitled to execute the Judgeme. Also that they duly appointed an investigator to trace the whereabouts of the Applicant/Judgement – Debtor and as per the Investigation Report dated 19th December 2016 by Messrs. Windscope Loss Assessors owned a house in Akiba Estate Nairobi and it found that the applicant owned Title No. NAIROBI/BLOCK 72/1088 situate in Nairobi which property was capable of discharging the Judgement sum. annexure “GMK 5” is a copy of the Investigation Report dated 19th December 2016) He deponed that the Debtor in an attempt to evade the judgement of the Honourable court transferred the property to his wife/daughter Rodah Moraa Nyamweya in an effort to defeat the judgement of the court contrary to Order 22 rule 34 (2)(a)(ii) of the Civil Procedure Rules. ( annexure “GMK 6” is a copy of the Certificate of Search dated 21st May 2024) . Also that the said transfer was not disclosed . Further that the debtor is not entitle to the reliefs sought as his conduct MAKUENI HCCC NO. 2 OF 2018 SPANISH COACH EXPRESS LIMITED ~VS~ CHARLES NYAMWEYA MARUBE is unconscionable and not equitable .
6. The applicant /debtor filed a Supplementary Affidavit dated 6.5. 2025. in which he admits that the Makueni Judgment exists but explains he did not participate since the insurance handled the matter. He reiterates he has not refused to pay the decretal sum but that is not financially stable and hence this bankruptcy petition. He questions the relevance of the 2016 investigation (conducted before judgment) and claims the respondent has not explained its purpose. He denies transferring the property Nairobi/Block 72/1088 to avoid paying the decretal sum and he said the transfer was done before judgment in HCCC No. 2 of 2018 and that the property is no longer in his name . He said he has acted honesty in all dealings in the matter and denies attempting to defeat justice. He also denies that he concealed the bankruptcy proceedings and cited an advertisement in the Star Newspaper on 8th January 2025. He further Stated that depends on his wife for upkeep, affirming no intention to frustrate recovery efforts. He asked the court to grant the prayers sought in his application.
In his written submissions ,the applicant also invoked section 32(4) of the Insolvency Act, which allows the court to stay execution proceedings upon presentation of a bankruptcy petition and sections 1A and 3A of the Civil Procedure Act, granting the court inherent power to make just and equitable orders. Also that the bankruptcy petition herein is pending . Also that there is an imminent threat of execution by the creditor in MAKUENI HCCC NO. 2 OF 2018and that the petition may be rendered nugatory unless the stay is granted. The applicant relied on the decision of Justice E.C. Mwita in Re Jai Prakash and Tax(29th July,2022) [2022] KEHC 11075 (KLR) where the court held that the petition will be rendered irrelevant if the orders sought are not granted and thus the execution is hereby stayed pending hearing and determination of this petition.”
This precedent is cited to argue that where execution is imminent, and a bankruptcy petition is pending, the court should stay execution to preserve the petition’s relevance.
The Applicant further submitted that the Replying Affidavit sworn on 17th March 2025 by the creditor confirms the threat of execution.
The applicant submitted that there is only one issue which the court ought to determine on that is whether under the circumstances, the Applicant is entitled to a stay of execution pending determination of the bankruptcy petition.
The Applicant further submitted that he is deserving of the same and emphasizes that it is settled practice for courts to stay execution of proceedings upon presentation of a bankruptcy petition to allow for its full ventilation on the merits.
The applicant also cited In Re The Matter of Zipporah Wambui Mathara [2010] eKLR, where Justice M.K. Koome held:
“...this court is given discretion to issue an order of stay of execution in order to give the Official Receiver the opportunity to consolidate and administer the estate of the debtor...”
Also Re Zarara Oil & Gas Co. Ltd, Misc App E532 of 2021 [2021] KEHC 191 (KLR) – Justice D.S. Majanja ruled that foreign insolvency proceedings were prima facie proof of financial distress, and stayed execution proceedings to preserve the insolvency process. That financial statements or proof from all creditors is not mandatory, and that issues of disclosure can be addressed during the petition hearing under paragraph 23 of the Fifth Schedule of the Insolvency Act.
Applicant also cited Re Stanley Maina Mwangi, Bankruptcy Cause E003 of 2021 [2022] KEHC 11656 (KLR) – Justice A. Mshila granted a stay of execution pending hearing of the bankruptcy petition notwithstanding the existence of execution proceedings emanating from a civil claim. In In re Johnson Mwendwa Muthengi (Debtor/Applicant) (Insolvency Cause E010 of 2021)
[2022] KEHC 15657 (KLR) (Commercial and Tax) (14 October 2022) (Ruling)
Neutral citation: [2022] KEHC 15657 (KLR) it was held that in Order 42 Rule 6(2) of the Civil Procedure Rules, namely:-
a. that substantial loss may result to the applicant unless the order is made;
b. that the application has been made without unreasonable delay; and
c. that such security as the court orders for the due performance of such decree or order as may
ultimately be binding on the applicant has been given. it is noteworthy that the applicant has
not endeavored to satisfy those conditions. In my respectful view, the applicant’s fears are propelled by the fact that the process of execution has been put in motion, which does not amount to substantial loss or proof of any other ground for stay of execution.’’
The Applicant urges the court to be guided by the above was held that jurisprudence and grant Prayer 4 as sought in the application dated 7th November 2024.
7. The respondent also filed submissions and faulted the application for failing to meet the legal threshhold for grating of equitable remedies as the applicant has defaulted since the year 2019 , that it does not raise any triable issues, it is an afterthought, that the applicant is guilty of dissipation of assets coupled with material non – disclosure and non-compliance with Section 32(4) and (5) of the Insolvency Act and thus the application is devoid of merit , incompetent, and an abuse of this Honourable Court’s process. Respondent cited the following cases ;
i. Re Satya Bhama Gandhi (Insolvency Cause E027 of 2024) [2025] KEHC 11068 (KLR) (Commercial and Tax) (24 July 2025) (Ruling).
ii. Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR.
iii. Mrao Ltd –vs- First American Bank of Kenya Ltd & 2 Others (2003) KLR 125.
iv. Halima Haji Sarah v Multiple Haurliers (E.A) Limited & another [2022] KEELC 912 (KLR).
v. David Kamau Gakuru v National Industrial Credit Bank Ltd [2002] eKLR.
vi. Job Kilach vs Nation Media Group Ltd, Salaba Agencies Ltd & Michael Rono (2015) eKLR.
vii. Jonathan Cheruiyot & another v Bungoma Chemist Limited [2019] KEHC 7629
8. The respondent argued that the court ought to consider the following issues for determination :
a. Whether the Applicant is entitled to the stay of execution proceedings in Makueni HCCC No. 2 of 2018.
b. Whether the Applicant’s failure to comply with the statutory requirement of advertisement under Section 32(5) of the Insolvency Act, 2015 renders the instant motion incompetent.
The respondent submitted that the applicant has not satisfied the grounds for granting stay of execution as was held in the case of
a Re Satya Bhama Gandhi (Insolvency Cause E027 of 2024) [2025] KEHC 11068 (KLR) (Commercial and Tax) (24 July 2025) (Ruling), where it was held
“The applicable test in such instances aligns with the general principles on the grant of interlocutory injunctive relief as laid out in Giella v Cassman Brown & Co. Ltd [1973] E.A. 358, which require the Applicant to demonstrate a prima facie case, that irreparable harm would result if the stay is not granted, and that the balance of convenience tilts in favour of the Applicant”.
Also Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR where it was held that an applicant must satisfy the triple requirements of Giella (supra). Thus the Respondent submitted that the only issues for determination should be whether:
a. The Plaintiff has a prima facie case with a probability of success.
b. Irreparable injury shall be suffered if a temporary injunction is not granted and that damages shall not being an adequate remedy; and
c. If there are any doubts as to (ii), the Court it will decide an application on the balance of convenience.
c. Mrao Ltd –vs- First American Bank of Kenya Ltd & 2 Others (2003) KLR 125 where His Lordship Bosire J.A. held that:
“So what is a prima facie case? I would say that in cases it is a case in which on the material presented to the court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter…
Mr. Wasuna appeared to me to imply that the test as to whether or not a prima facie case had been made out is satisfied if the applicant is able to show the existence of an arguable case.
But as I earlier endeavoured to show, and I cited ample authority for it, a prima facie case is more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right, and the probability of the applicant’s case upon trial. That is clearly a standard which is higher than an arguable case.”
9. He Further cited the case of Bahadurali Ebrahim Shamji v. Al Noor Jamal & 2 Others Civil Appeal No. 210 of 1997 which was cited with approval in Halima Haji Sarah v Multiple Haurliers (E.A) Limited & another [2022] KEELC 912 (KLR) where the Court of Appeal held as follows:
“It is perfectly well-settled that a person who makes an ex parte application to the court – that is to say, in the absence of the person who will be affected by that which the court is asked to do – is under an obligation to the court to make the fullest possible disclosure of all material facts within his knowledge, and if he does not make the fullest possible disclosure then he cannot obtain any advantage from the proceedings, and he will be deprived of any advantage he may have already obtained.
… and the applicant must state fully and fairly the facts, and the penalty by which the court enforces that obligation is that if it finds out that the facts have not been fully and fairly stated to it, the court will set aside any action which it has taken on the faith of the imperfect statement The duty of disclosure therefore applies not only to material facts known to the applicant but also to any additional facts which he would have known if he had made sufficient inquiries.“
10. Counsel also cited the celebrated case of Giella –vs- Cassman Brown (1973) EA 358 on temporary injunctions and the Court of Appeal in Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR where it was held that an applicant must satisfy the triple requirements of Giella (supra). Thus the Respondent submitted that the only issues for determination should be whether:
a. The Plaintiff has a prima facie case with a probability of success.
b. Irreparable injury shall be suffered if a temporary injunction is not granted and that damages shall not being an adequate remedy; and
c. If there are any doubts as to (ii), the Court it will decide an application on the balance of convenience.
11. It was submitted that the Applicant is not entitled to any stay of execution orders as sought for the following reasons:
i) The Applicant does not have a prima facie case with a probability of success.
12. Your Honour, what constitutes a prima facie case was discussed in Mrao Ltd –vs- First American Bank of Kenya Ltd & 2 Others (2003) KLR 125 where His Lordship Bosire J.A. held that:
“So what is a prima facie case? I would say that in cases it is a case in which on the material presented to the court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter…
Mr. Wasuna appeared to me to imply that the test as to whether or not a prima facie case had been made out is satisfied if the applicant is able to show the existence of an arguable case.
But as I earlier endeavoured to show, and I cited ample authority for it, a prima facie case is more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right, and the probability of the applicant’s case upon trial. That is clearly a standard which is higher than an arguable case.”[emphasis added]
13. Also that in order to determine whether the Applicant has established a prima facie case one with a reasonable likelihood of success, the court must assess whether:
a. The Applicant has presented credible evidence of insolvency.
b. The application is made in good faith so as not to defraud creditors.
14. Based on the above, it is our humble submission that the Applicant has not met the threshold for a prima facie case as stipulated in the above case for the following reasons:
• The Applicant’s material non-disclosure to the Honourable Court regarding the dissipation of assets at the time of filing the present Application.
15. Also that Applicant was the registered proprietor of Title No. Nairobi/Block 72/1088 and the respondent has learnt that he is guilty of transferring the same to the wife or daughter during the pendency of Makueni HCCC No. 2 of 2018 which is amounts to dissipation of assets by the judgment debtor which is prohibited under Order 22 Rule 34 of the Civil Procedure Rules, 2010.
16. Further that the applicant seeks equitable orders which are discretionally and yet he had not come to equity with good hands and thus he is not entitled to equitable orders . They relied on the case of David Kamau Gakuru v National Industrial Credit Bank Ltd [2002] eKLR where the Court of Appeal held as follows:
“In our view, the injunction that was sought by the appellant, being an equitable remedy, should not issue in his favour as he demonstrated openly by his conduct that he was undeserving of the equitable relief.”
17. The Respondent submitted that the Applicant has failed to raise any triable issue to warrant the intervention of this Honourable Court as the decretal sum in question has been outstanding since 2019, when the judgment was delivered and has neither challenged the judgment nor satisfied .
18. Also that application is an afterthought as it has been filed 5 years after judgment and that the application was filed immediately after issuance of the warrant of arrest. application filed immediately after the issuance of a Warrant of Arrest speaks volumes.
19. It further relied on the case of Job Kilach vs Nation Media Group Ltd, Salaba Agencies Ltd & Michael Rono (2015) eKLR where in defining what a triable issue is the court observed that;
“A bona fide triable issue is any matter raised by the defendant that would require further interrogation by the court during a full trial. The Black''s Law Dictionary defines the term “triable” as, “subject or liable to judicial examination and trial”. It therefore does not need to be an issue that would succeed, but just one that warrants further intervention by the Court”
b. Whether the Applicant’s failure to comply with the statutory requirement of advertisement under Section 32 (4) and (5) of the Insolvency Act, 2015 renders the instant motion incompetent.
20. It was submitted that Section 32 (4) of the Insolvency Act, 2015 provides as follows:
4) A debtor who makes an application under this section shall publish a notice of the application in:
a. A newspaper circulating within the region in which the debtor ordinarily resides; and
b. In such other publications (if any) as may prescribed by the insolvency regulations for purposes of this section.
21. Also that the applicant failed to comply with t directions issued by this court on the 11th December, 2024 which required publication of the petition in a newspaper of nationwide publication. It said that Section 32(5) of the Insolvency Act, 2015 gives the Honourable Court the power to decline to hear the application if subsection (4) has not been complied with to its satisfaction and it asked the court to decline to hear the application as it goes to the root of the application.
22. Respondent relied on the case of Jonathan Cheruiyot & another v Bungoma Chemist Limited [2019] KEHC 7629 (KLR) where the Honourable Court held that :
“Section 32(4) of the Act is in Mandatory terms that the debtor shall publish the notice of the application. The reason for this is to enable all persons to know of the application, the notice to debtors and notice of other people that the applicant intends to make an application and beware not extend credit to him. It is therefore mandatory that the application be published. Where the applicant has not published the application, then the application cannot be heard. Indeed Section 32(5) provisions that the court may decline to hear the application if the provisions of Section 32(4) have not been complied with to its satisfaction.
It is the duty of the applicant to publish the notice of the application in these proceedings, no evidence of the publication has been tendered or annexed. Indeed in its response the counsel for applicant submits erroneously in my view that it is not mandatory or can be made at any time. Publication is a necessary step in these proceedings and as such step has not been made. I therefore uphold the preliminary objection and decline to consider this application as the requirements of the Insolvency Act have not been complied with.”
23. IN THE ALTERNATIVE the Respondent Submitted that even if the Applicant claims to have published the Petition in a newspaper of nationwide circulation, the copy placed on the Court record is so unclear and blurred that it cannot be said to demonstrate compliance.
24. The alleged extract is illegible to the extent that even a reasonable creditor, the Respondent included, cannot discern the contents. This undermines the very statutory purpose of publication, which is to bring the Petition to the attention of creditors and the public in a transparent manner. A publication that is unreadable is in effect no publication at all.
ANALYSIS AND DETERMINATION
25. Having carefully considered the motion, affidavits, annexures, and submissions, the following issues arise for determination:
1. Whether the applicant complied with Section 32 (4) of the Insolvency Act.
2. Whether the Applicant has met the legal threshold for grant of stay of execution
3. Whether the bankruptcy petition was filed in good faith or constitutes an abuse of court process.
26. On whether the applicant complied with Section 32 (4) of the Insolvency Act.
The respondent argued that the applicant has not complied with Section 32 (4) of the Insolvency Act pursuant to orders of this court issued on 11.12.24 and thus the pray for stay of execution should not be heard . The applicant said that he complied with the direction for advertisement of the petition but this is denied by the re4spodent who said that the petition was not gazetted and / or that the notice annexed is not legible . I have seen the said annexture the same contains several notices in very small fonts which are illegible are rightly submitted by the respondent . The newspaper shows that it is the ‘’Star ‘’but the date of the same is also not visible. Nothing would have stopped the applicant from providing a legible copy of the gazette if it is true that the same was gazetted.
Section 32 (4) and (5) of the insolvency Act provides that -
(4)A debtor who makes an application under this section shall publish a notice of the application in—(a)a newspaper circulating within the region in which the debtor ordinarily resides; and
(b)in such other publications (if any) as may prescribed by the insolvency regulations for purposes of this section.
(5)The Court may decline to hear the application if subsection (4) has not been complied with to its satisfaction.
. 27. I am not satisfied at this stage that the applicant gazetted the petition herein under section 32 (4) of the Insolvency Act. This is a court of equity and the applicant is seeking equitable orders at this stage . He has not come to court with clean hands and thus he is not entitled to consideration of the prayer stay orders . This is an omission which cannot be overlooked and I decline to hear the application. I proceed to strike it out under Section 32 (5)rule 5 of the insolvency Act . Costs to the respondent
T.A ODERA
JUDGE
22.10.25
DELIVERED VIRTUALLY VIA TEAMS PLATFORM IN THE PRESENCE OF MR NYAMWEYA FOR THE APPLICANT & MISS KAVATA FOR THE RESPONDENT CA MR KIPCHIRCHIR
ORDER : FURTHER MENTION ON
2.3.26
T.A ODERA
JUDGE
23.10.25
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