1. I have considered the Notice of Motion Application dated January 25, 2023 (the Application) together with the affidavit sworn in support of the same of even date; the replying affidavit sworn in opposition to the same on 9th March, 2023, and the submissions in support and in opposition to the Preliminary Objection dated 23, March 2023.
2. The Plaintiff has admitted that the present suit arises in response to the service of a Statutory Demand dated November 24, 2023, to which the Plaintiff failed to respond within the prescribed time, and in accordance with the procedure, set out in the Insolvency Act and Regulations. Instead the Plaintiff chose to file the present suit.
3. Having failed to file an Application in the insolvency proceedings to set aside the statutory demand within 21 days of service pursuant to the provisions of the Insolvency Act, the Plaintiff may not institute parallel proceedings seeking the exact same remedy.
4. Looking at paragraphs 20 to 25 of the Plaint, it is evident to me that the Plaintiff seeks to prevent the defendant from commencing the liquidation proceedings, advertising the notice of petition, and other action relevant to liquidation proceedings.
5. To my mind, given that it is not in dispute that there is already in existence insolvency proceedings concerning the same subject matter, I find that there is no basis upon which the present suit may proceed along parallel lines. The appropriate applications, and or necessary responses ought to have been filed in the insolvency proceedings.
6. The Plaintiffs reason for failing to file the appropriate documentation within the timelines set out under the applicable law was on the basis that the client did not have specialized knowledge of the procedure; and that present counsel acted on the instructions of previous counsel. I do not think that the same are justifiable reasons. Ignorance of the law is not a valid defence in law, and it is certainly not a valid ground upon which the Plaintiff may pursue satellite proceedings concerning the same subject matter.
7. It is trite law, and the Court of Appeal affirmed the same in the renowned case of Speaker of National Assembly v. James Njenga Karume (1992) eKLR that where there is a clear procedure for redress of a grievance prescribed by Parliament through the Constitution or an Act of Parliament, the procedure is to be strictly followed.
8. This is in line with the decision of the High Court in Kwale International Sugar Company Ltd. v EPCO Builders Limited [2019] eKLR, where Justice Francis Tuiyott (as he then was) stated as follows:
“Undoubtedly, it is within the right of the Applicant to challenge the propriety and validity of the statutory notice and subsequent insolvency proceedings, but once the insolvency proceedings had been filed then the challenge had to be mounted within the insolvency cause. Examples are not lacking that this is the approach (See in Re Genghis Capital Limited [2019] eKLR and in Re Kipsigis Stores Limited [2017] eKLR which, incidentally, are authorities in the Applicant’s bundle). As there was no order restraining the Respondent from filing the Petition, then it would be an abuse of court process to use satellite proceedings to impugn and challenge the main cause.” (emphasis mine)
9. Having stated the above, I find that hold that the Preliminary Objection dated 23 March, 2023 is with merit and succeeds. Further, noting that the Application seeking injunctive relief was withdrawn at the hearing of the present application, that brings the matter to an end.
10. Based on the reasons set out above, I find and I hold that entire suit ought to be and is hereby struck out with costs.