1. The Debtor filed the Notice of Motion dated 7th April 2025 alongside his Debtor’s Petition and sought the following orders
a) Leave be granted to the applicant to publish the bankruptcy petition in a newspaper with nationwide circulation.
b) Pending the hearing and determination of the bankruptcy petition herein there be a stay of execution proceedings in MILIMANI HCCC NO.140 OF 2008 .
c) The costs of this application be in the cause.
Background Facts
2. The Application was supported by the Affidavit of Gideon Mose . He stated that on 2nd July 2015, the Applicant obtained judgment against Kenya Oil Company Limited (now Rubis Energy Kenya PLC) and Nation Media Group Limited for KShs.15,500,000 plus costs and interest, which sum was subsequently paid and the matter settled. The 1st Defendant later appealed to the Court of Appeal in Civil Appeal No. 88 of 2016, where the High Court award was overturned and reduced to Kshs. 4,500,000. The Applicant considers this decision irregular and unsupported by facts and law.
3. In March 2024, the Applicant was served with a Notice to Show Cause why he should not be committed to civil jail for failure to pay Kshs. 28,627,225.03, with the principal sum indicated as Kshs.16,129,272. Warrants for his arrest were subsequently issued. He states that the debt has now escalated to over KShs.31 million. That he lacks assets or means to repay, and that previous attempts to raise funds have failed, leaving him financially dependent on his spouse.
4. Consequently, the Applicant has filed a Bankruptcy Petition against himself, seeking relief and time to reorganize his affairs with the aim of eventually settling his outstanding debts.
5. In the Replying Affidavit sworn on 28th April 2025, the Respondent stated that the Application and the Petition offend the mandatory provisions of Sections 16 and 32 of the Insolvency Act as read with Regulation 18 of the Insolvency Regulations. Further, the Applicant has failed to disclose his assets as well as disclose the true account and history of how his debt with the Creditor came to be. Therefore, the Application is without merit and has been made in absolute bad faith and should be dismissed.
Issues for determination
6. Having considered the Application, the Replying Affidavit and the written submissions, the Court finds that the issue for determination is;
a) Whether an order of stay of execution should issue.
b) Whether the Applicant should be granted leave to publish the Bankruptcy Petition in a newspaper with nationwide circulation
Analysis
7. It was the Applicant’s submission that the Applicant has filed a Bankruptcy Petition dated 7th April 2025 in this cause, which is pending. That he is facing imminent execution by the creditor herein in HCCC NO. 140 OF 2008 . It will be justiciable if the orders for stay sought under this application are granted in order to preserve the hearing of the Bankruptcy Petition herein on its merits
8. In contrast, the Respondent maintained that the Applicant's filing of this Application and the Petition for Bankruptcy is suspect. That the Debtor’s failure to truthfully disclose his financial affairs imputes bad faith on his part. That the Debtor has had five years to settle the decree and to file this Application if he were truly bankrupt. Instead, the Debtor appears motivated by a desire to evade the execution process and his committal to civil jail.
9. The power to grant a stay of execution or stay of proceedings is discretionary. It must be exercised judiciously and in accordance with the principles of justice, equity, and the overall objectives of the Insolvency Act.
10. Section 32 of the Act recognizes the right of a debtor who is unable to pay their debts to seek relief through a Bankruptcy Petition. It provides as follows;
When debtor may make application for bankruptcy order
(1)A debtor may make an application to the Court for an order adjudging the debtor bankrupt only on the grounds that the debtor is unable to pay the debtor's debts.
(2) The Court may decline to deal with such an application if it is not accompanied by a statement of the debtor's financial position containing—
(a) such particulars of the debtor's creditors and of the debtor's debts and other liabilities and assets as may be prescribed by the insolvency regulations; and
(b) such other information as may be so prescribed.
(3) The Court may reject a statement of the debtor's financial position if of the opinion that it is incorrect or incomplete.
(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.
11. In Equity Bank Ltd v West Link Mbo Ltd [ 2013] eKLR , Musinga, J.A , stated with regard to inherent powers of the Court:
“Courts of law exist to administer justice and in so doing they must of necessity balance between competing rights and interests of different parties, but within the confines of the law, to ensure that the ends of justice are met. Inherent power is the authority possessed by a Court implicitly without its being derived from the Constitution or statute. Such power enables the judiciary to deliver on their constitutional mandate. In Seth Lookasan Sethiya v. Ivan E. John AIR [1975] ALL 113, it was held that power means authority, whether any discretion is left or not and whether any direction is imperative or directory relates to the manner and exercise of the power and not to the basic ingredient of the authority itself. Inherent power is therefore the natural or essential power conferred upon the Court irrespective of any conferment of discretion.”
12. There is a Bankruptcy petition pending determination before this Court; the same may be rendered irrelevant unless a stay of execution is issued.
13. The Application is allowed and the Applicant granted leave to advertise. Likewise, there is granted a stay of execution of the execution proceedings in HCCOMM No. 140 of 2008 pending the hearing of the bankruptcy petition herein.
14. As to costs, the Applicant prays that the same be in the cause. That prayer is fair and reasonable in the circumstances.
Determination
15. The Debtor/Applicant’s Application dated 7th April, 2025 is allowed in the following terms;
(a) Leave be granted to the Applicant to publish the Bankruptcy Petition in a newspaper with nationwide circulation.
(b) Pending the hearing and determination of the Bankruptcy Petition herein there be a stay of execution proceedings in MILIMANI HCCC NO.140 OF 2008.
(c) The costs of this application be in the cause.
16. It is so ordered
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 26TH DAY OF FEBRUARY, 2026.
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Mr. Nyamweya for the Applicant.
Miss Mima for the Respondent.
Peter Wabwire - Court Assistant.
a) Leave be granted to the applicant to publish the bankruptcy petition in a newspaper with nationwide circulation.
b) Pending the hearing and determination of the bankruptcy petition herein there be a stay of execution proceedings in MILIMANI HCCC NO.140 OF 2008 .
c) The costs of this application be in the cause.
Background Facts
2. The Application was supported by the Affidavit of Gideon Mose . He stated that on 2nd July 2015, the Applicant obtained judgment against Kenya Oil Company Limited (now Rubis Energy Kenya PLC) and Nation Media Group Limited for KShs.15,500,000 plus costs and interest, which sum was subsequently paid and the matter settled. The 1st Defendant later appealed to the Court of Appeal in Civil Appeal No. 88 of 2016, where the High Court award was overturned and reduced to Kshs. 4,500,000. The Applicant considers this decision irregular and unsupported by facts and law.
3. In March 2024, the Applicant was served with a Notice to Show Cause why he should not be committed to civil jail for failure to pay Kshs. 28,627,225.03, with the principal sum indicated as Kshs.16,129,272. Warrants for his arrest were subsequently issued. He states that the debt has now escalated to over KShs.31 million. That he lacks assets or means to repay, and that previous attempts to raise funds have failed, leaving him financially dependent on his spouse.
4. Consequently, the Applicant has filed a Bankruptcy Petition against himself, seeking relief and time to reorganize his affairs with the aim of eventually settling his outstanding debts.
5. In the Replying Affidavit sworn on 28th April 2025, the Respondent stated that the Application and the Petition offend the mandatory provisions of Sections 16 and 32 of the Insolvency Act as read with Regulation 18 of the Insolvency Regulations. Further, the Applicant has failed to disclose his assets as well as disclose the true account and history of how his debt with the Creditor came to be. Therefore, the Application is without merit and has been made in absolute bad faith and should be dismissed.
Issues for determination
6. Having considered the Application, the Replying Affidavit and the written submissions, the Court finds that the issue for determination is;
a) Whether an order of stay of execution should issue.
b) Whether the Applicant should be granted leave to publish the Bankruptcy Petition in a newspaper with nationwide circulation
Analysis
7. It was the Applicant’s submission that the Applicant has filed a Bankruptcy Petition dated 7th April 2025 in this cause, which is pending. That he is facing imminent execution by the creditor herein in HCCC NO. 140 OF 2008 . It will be justiciable if the orders for stay sought under this application are granted in order to preserve the hearing of the Bankruptcy Petition herein on its merits
8. In contrast, the Respondent maintained that the Applicant's filing of this Application and the Petition for Bankruptcy is suspect. That the Debtor’s failure to truthfully disclose his financial affairs imputes bad faith on his part. That the Debtor has had five years to settle the decree and to file this Application if he were truly bankrupt. Instead, the Debtor appears motivated by a desire to evade the execution process and his committal to civil jail.
9. The power to grant a stay of execution or stay of proceedings is discretionary. It must be exercised judiciously and in accordance with the principles of justice, equity, and the overall objectives of the Insolvency Act.
10. Section 32 of the Act recognizes the right of a debtor who is unable to pay their debts to seek relief through a Bankruptcy Petition. It provides as follows;
When debtor may make application for bankruptcy order
(1)A debtor may make an application to the Court for an order adjudging the debtor bankrupt only on the grounds that the debtor is unable to pay the debtor's debts.
(2) The Court may decline to deal with such an application if it is not accompanied by a statement of the debtor's financial position containing—
(a) such particulars of the debtor's creditors and of the debtor's debts and other liabilities and assets as may be prescribed by the insolvency regulations; and
(b) such other information as may be so prescribed.
(3) The Court may reject a statement of the debtor's financial position if of the opinion that it is incorrect or incomplete.
(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.
11. In Equity Bank Ltd v West Link Mbo Ltd [ 2013] eKLR , Musinga, J.A , stated with regard to inherent powers of the Court:
“Courts of law exist to administer justice and in so doing they must of necessity balance between competing rights and interests of different parties, but within the confines of the law, to ensure that the ends of justice are met. Inherent power is the authority possessed by a Court implicitly without its being derived from the Constitution or statute. Such power enables the judiciary to deliver on their constitutional mandate. In Seth Lookasan Sethiya v. Ivan E. John AIR [1975] ALL 113, it was held that power means authority, whether any discretion is left or not and whether any direction is imperative or directory relates to the manner and exercise of the power and not to the basic ingredient of the authority itself. Inherent power is therefore the natural or essential power conferred upon the Court irrespective of any conferment of discretion.”
12. There is a Bankruptcy petition pending determination before this Court; the same may be rendered irrelevant unless a stay of execution is issued.
13. The Application is allowed and the Applicant granted leave to advertise. Likewise, there is granted a stay of execution of the execution proceedings in HCCOMM No. 140 of 2008 pending the hearing of the bankruptcy petition herein.
14. As to costs, the Applicant prays that the same be in the cause. That prayer is fair and reasonable in the circumstances.
Determination
15. The Debtor/Applicant’s Application dated 7th April, 2025 is allowed in the following terms;
(a) Leave be granted to the Applicant to publish the Bankruptcy Petition in a newspaper with nationwide circulation.
(b) Pending the hearing and determination of the Bankruptcy Petition herein there be a stay of execution proceedings in MILIMANI HCCC NO.140 OF 2008.
(c) The costs of this application be in the cause.
16. It is so ordered
DATED, SIGNED AND DELIVERED AT MILIMANI THIS 26TH DAY OF FEBRUARY, 2026.
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Mr. Nyamweya for the Applicant.
Miss Mima for the Respondent.
Peter Wabwire - Court Assistant.