1. By a Notice of Motion dated 29th October 2024, the Official Receiver, acting as the provisional liquidator of the estate of Kaushik Bhatt (deceased), seeks an order declaring that the respondent is indebted to the said estate in the sum of KShs. 9,850,000/=, being outstanding rent in respect of House No. 354, Akiba Estate, South C, for the period between October 2021 and October 2024. The Official Receiver further prays for an order compelling the respondent to pay the said sum to the estate.
2. The application is supported by the affidavit of Korir Raymond, sworn on 29th October 2024. In opposition, the respondent, Bhupinder Singh, has filed a replying affidavit sworn on 12th December 2024. The parties did not file their written submissions despite directions to do so. The matter came up for hearing and the Official Receiver was absent. I do however deem it fit to consider the application on the pleadings filed.
3. The first issue raised by the respondent, which I shall address as a preliminary point, is the contention that the application is fatally defective for want of a substantive suit. With respect, this averment is misplaced. Section 2of the Civil Procedure Act defines a "suit" as “all civil proceedings commenced in any manner prescribed.” In my view, a bankruptcy petition is a special statutory proceeding governed by the Insolvency Act, 2015, even though it is technically a civil proceeding commenced by way of a petition, not by plaint.
4. The record clearly reflects the existence of a valid and subsisting bankruptcy petition against the debtor’s estate, as well as bankruptcy orders duly issued by this Court. The facts are not disputed by the respondent. The Official Receiver acknowledges in the supporting affidavit that the orders sought are so sought in the Official Receiver’s capacity as the Bankruptcy Trustee of the estate. Indeed, such powers are granted under the Insolvency Act and the Bankruptcy Act (now repealed), for purposes of realization and distribution of a bankrupt’s assets. The application is therefore properly founded within the framework of the ongoing insolvency proceedings and is competent in both form and substance.
5. The respondent contends that he never entered into any tenancy agreement with the applicant or the estate of the bankrupt, and therefore does not owe any rent or related sums as alleged.
6. While mindful of the need for judicial restraint and conscious not to descend into the arena of factual contestation, I am nonetheless compelled, by the imperative to do justice between the parties, to take judicial notice of the court record. In particular, I have reviewed the proceedings of 8th October 2024, which related to an application dated 10th September 2024, wherein the Official Receiver sought the Court’s intervention to facilitate the eviction of the respondent, who was described by the Official Receiver as a tenant of the estate.
7. Mr Okoth, appearing for the respondent herein (the said tenant) stated:
“We are willing to vacate the property subject to court giving directions and four our client being given adequate time by 30/11/24 to vacate the premises.”
8. The said application was ultimately compromised by consent of the parties. In view of this, it is untenable for the respondent to now assert ignorance of, or deny, the existence of any tenancy relationship with the estate. The record reflects that Counsel engaged with the Court on the premise that the respondent was indeed in occupation of the subject premises as a tenant.
9. That said, there is a clear distinction between establishing the existence of a tenancy and proving the specific amount of rent allegedly due and owing. In the present case, the Official Receiver has not placed before the Court any tenancy agreement or other documentary evidence to confirm the agreed rent, the duration of the tenancy, or the manner of accrual of the sum claimed. Although reference is made in the supporting affidavit to certain notices allegedly issued to the respondent, none of these notices have been exhibited in evidence.
10. In the absence of such foundational evidence, it is my finding that the Official Receiver has not discharged the burden of proving the claim against the respondent on a balance of probabilities. Accordingly, the application dated 29th October 2024 is hereby dismissed. Given the nature of the proceedings and the insolvency context, I make no order as to costs.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 21ST DAY OF JULY 2025.
F. MUGAMBI
JUDGE
2. The application is supported by the affidavit of Korir Raymond, sworn on 29th October 2024. In opposition, the respondent, Bhupinder Singh, has filed a replying affidavit sworn on 12th December 2024. The parties did not file their written submissions despite directions to do so. The matter came up for hearing and the Official Receiver was absent. I do however deem it fit to consider the application on the pleadings filed.
3. The first issue raised by the respondent, which I shall address as a preliminary point, is the contention that the application is fatally defective for want of a substantive suit. With respect, this averment is misplaced. Section 2of the Civil Procedure Act defines a "suit" as “all civil proceedings commenced in any manner prescribed.” In my view, a bankruptcy petition is a special statutory proceeding governed by the Insolvency Act, 2015, even though it is technically a civil proceeding commenced by way of a petition, not by plaint.
4. The record clearly reflects the existence of a valid and subsisting bankruptcy petition against the debtor’s estate, as well as bankruptcy orders duly issued by this Court. The facts are not disputed by the respondent. The Official Receiver acknowledges in the supporting affidavit that the orders sought are so sought in the Official Receiver’s capacity as the Bankruptcy Trustee of the estate. Indeed, such powers are granted under the Insolvency Act and the Bankruptcy Act (now repealed), for purposes of realization and distribution of a bankrupt’s assets. The application is therefore properly founded within the framework of the ongoing insolvency proceedings and is competent in both form and substance.
5. The respondent contends that he never entered into any tenancy agreement with the applicant or the estate of the bankrupt, and therefore does not owe any rent or related sums as alleged.
6. While mindful of the need for judicial restraint and conscious not to descend into the arena of factual contestation, I am nonetheless compelled, by the imperative to do justice between the parties, to take judicial notice of the court record. In particular, I have reviewed the proceedings of 8th October 2024, which related to an application dated 10th September 2024, wherein the Official Receiver sought the Court’s intervention to facilitate the eviction of the respondent, who was described by the Official Receiver as a tenant of the estate.
7. Mr Okoth, appearing for the respondent herein (the said tenant) stated:
“We are willing to vacate the property subject to court giving directions and four our client being given adequate time by 30/11/24 to vacate the premises.”
8. The said application was ultimately compromised by consent of the parties. In view of this, it is untenable for the respondent to now assert ignorance of, or deny, the existence of any tenancy relationship with the estate. The record reflects that Counsel engaged with the Court on the premise that the respondent was indeed in occupation of the subject premises as a tenant.
9. That said, there is a clear distinction between establishing the existence of a tenancy and proving the specific amount of rent allegedly due and owing. In the present case, the Official Receiver has not placed before the Court any tenancy agreement or other documentary evidence to confirm the agreed rent, the duration of the tenancy, or the manner of accrual of the sum claimed. Although reference is made in the supporting affidavit to certain notices allegedly issued to the respondent, none of these notices have been exhibited in evidence.
10. In the absence of such foundational evidence, it is my finding that the Official Receiver has not discharged the burden of proving the claim against the respondent on a balance of probabilities. Accordingly, the application dated 29th October 2024 is hereby dismissed. Given the nature of the proceedings and the insolvency context, I make no order as to costs.
DATED, SIGNED AND DELIVERED IN NAIROBI
THIS 21ST DAY OF JULY 2025.
F. MUGAMBI
JUDGE