FURTHER RULING
1.I have considered the application for stay of execution of the composite ruling delivered on 22/11/2024 for 90 days, together with the responses by various parties. The oral application was made by CHYS.
2.With respect to the ground for sufficient time required by CHYS and the SPVs to notify their employees of the ruling and allow them time to move their items from office, I note that the liquidation orders as well as the preservation orders herein were issued in 2023. It can therefore be presumed that these proceedings are and have been within the public domain as well as the public. CHYS notes that there will be job losses in the companies. In response to this, I take the view that the liquidation process is a legal process envisioned in the Insolvency Act and the effect of the job losses should not be used to curtail creditors rights. I do however agree that the process of taking over the assets vested in the Official Receiver must be carried out with decorum and within the confines of the law and the Constitution.
3.I have previously pronounced myself on the process of insolvency not being subject to the Environment and Land Court as it involves the supervision of the liquidator in a process that is not within the confines of the Land Act but the framework of the Insolvency Act. I reiterate this position with respect to the period of notice required and prayed for by CHYS and the SPVs.
4.I further note that another reason given by Ms Koile for seeking stay of execution is to enable CHYS to file an appeal which is a Constitutional right of any of the parties herein.
5.As such, in order to enable any such appeal to be filed and to also ensure that there is an orderly handing over of the assets by the SPVs and affected entities, a stay of 30 days is hereby granted. Thereafter, the orders irequiring the assistance of the OCS shall kick in for purposes of lawful handing over and peaceful movement/eviction of the properties/assets.
6.Further, at this point all parties are directed to facilitate the liquidation process and co-operate with the Official Receiver in ensuring a seamless and expedited process in all ways including providing information and documentation when required to do so.
7.Regarding the application for rent to be deposited in an escrow account with respect to the Alma, I have not been furnished with any evidence that there are tenants and if any, how many tenants are paying rent to CHYS or Cytonn SPVs. I am therefore unable to grant that application and, in any case, the vesting orders that have been made in favour of the Official Receiver means that the liquidator is in control of the properties. process.
8.I have finally noted the submission on the need for a mention of the SBM matters for purposes of appraising court on the progress of the ongoing negotiations between the Bank, the liquidator and the home owners.
9.Accordingly this matter shall be mentioned on 3/2/2025 to appraise court on progress and to confirm compliance and for further directions.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 22ND DAY OF NOVEMBER 2024.
F. MUGAMBI
JUDGE
1.I have considered the application for stay of execution of the composite ruling delivered on 22/11/2024 for 90 days, together with the responses by various parties. The oral application was made by CHYS.
2.With respect to the ground for sufficient time required by CHYS and the SPVs to notify their employees of the ruling and allow them time to move their items from office, I note that the liquidation orders as well as the preservation orders herein were issued in 2023. It can therefore be presumed that these proceedings are and have been within the public domain as well as the public. CHYS notes that there will be job losses in the companies. In response to this, I take the view that the liquidation process is a legal process envisioned in the Insolvency Act and the effect of the job losses should not be used to curtail creditors rights. I do however agree that the process of taking over the assets vested in the Official Receiver must be carried out with decorum and within the confines of the law and the Constitution.
3.I have previously pronounced myself on the process of insolvency not being subject to the Environment and Land Court as it involves the supervision of the liquidator in a process that is not within the confines of the Land Act but the framework of the Insolvency Act. I reiterate this position with respect to the period of notice required and prayed for by CHYS and the SPVs.
4.I further note that another reason given by Ms Koile for seeking stay of execution is to enable CHYS to file an appeal which is a Constitutional right of any of the parties herein.
5.As such, in order to enable any such appeal to be filed and to also ensure that there is an orderly handing over of the assets by the SPVs and affected entities, a stay of 30 days is hereby granted. Thereafter, the orders irequiring the assistance of the OCS shall kick in for purposes of lawful handing over and peaceful movement/eviction of the properties/assets.
6.Further, at this point all parties are directed to facilitate the liquidation process and co-operate with the Official Receiver in ensuring a seamless and expedited process in all ways including providing information and documentation when required to do so.
7.Regarding the application for rent to be deposited in an escrow account with respect to the Alma, I have not been furnished with any evidence that there are tenants and if any, how many tenants are paying rent to CHYS or Cytonn SPVs. I am therefore unable to grant that application and, in any case, the vesting orders that have been made in favour of the Official Receiver means that the liquidator is in control of the properties. process.
8.I have finally noted the submission on the need for a mention of the SBM matters for purposes of appraising court on the progress of the ongoing negotiations between the Bank, the liquidator and the home owners.
9.Accordingly this matter shall be mentioned on 3/2/2025 to appraise court on progress and to confirm compliance and for further directions.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 22ND DAY OF NOVEMBER 2024.
F. MUGAMBI
JUDGE