Ruling:
1. I have considered the Amended Notice of Motion Application dated 30th August, 2023 together with the supporting affidavit sworn on even date; the replying affidavit sworn in opposition on 4th September, 2023 and the further affidavit dated 28th November, 2023 together with the rival submissions made by the parties, and the applicable law.
2. The applicant seeks to restrain the sale of various assets of the Company; suspend the appointment of the Receiver; and seeks an order for production of a various statements of accounts from the Receiver.
3. In support of the above, the applicant submitted that the Receiver manager has sold the assets without engaging the unsecured creditors. Counsel stated that the Receiver has a responsibility to unsecured creditors, which has not been met. He stated that no documents have been annexed to show that the Company is being safe guarded; and there is no report present to show any engagement with the unsecured creditors to date. Further, he submitted that the Company was closed, but the Receiver is being paid a huge amount of salary for his services. He submitted that to date the applicant has never seen the floating charge, and the Receivership is a kiss of death to the Company.
4. In opposition to the application, counsel for the respondent submitted that Mr. Rao was appointed as a Receiver, and not an Administrator, in 2021. His notice of appointment and publication relating to the same are duly annexed as Exhibits marked MK1 and MK2.
5. Further he submitted that the properties in question were sold in 2022. Nothing has happened since then.
6. Having considered the submissions of counsel, while I emphasize with the applicant’s plight as an unsecured creditor, it is evident, and not disputed, that the subject Company is under receivership, and not administration. Moreover, the appointment letter of Mr. Rao pursuant to a floating charge created by the Company confirms the same.
7. I have considered the authority of Mumias Sugar, (Insolvency Petition E004 of 2021) relied on by the applicant, and to my knowledge, the sentiments expressed in that matter speak to the various differences between the Insolvency Act 2015 and the previous law governing such matters. I agree with the sentiments expressed, but I do not think that the same was intended to be interpreted to mean that reliefs relating to administration under the 2015 Act shall apply to receiverships initiated under the previous, now repealed law. In sum, I do not think that the applicant can invoke reliefs available under the provision of administration to a case of receivership.
8. Moreover, I am satisfied that the orders sought in the application have been overtaken by events because the sale transactions of the subject property have already taken place. Accordingly, any orders made by this court would be in vain. It is not the practice of the court to make orders in vain, and I do not intend to do so.
9. Finally, I find the application has been made with great delay, the Receiver was appointed way back in 2021, and no explanation had been given for the delay in making the present application.
10. Based on the reasons above, I find the motion dated 30 August, 2023 is without merit and the same is dismissed with costs.
11. The file is accordingly marked as closed.
Visram, J.