REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
INSOLVENCY PETITION NO. E001 OF 2025
IN THE MATTER OF THE INSOLVENCY ACT NO. 18 OF 2015
AND
IN THE MATTER OF A PETITION FOR BANKRUPTCY BY ROSE NJOKI MWAMBURA
(PETITIONING ON BEHALF OF THE ESTATE OF THE LATE HENRY GITONGA MWAMBURA – DECEASED )
PETITION OR BANKRUPTCY
BETWEEN
ROSE NJOKI MWAMBURA AND HARON GITHINJI MWAMBURA (Petitioning on behalf of the estate of the late HENRY GITONGA MWAMBURA - DECEASED )…………………..…….. PETITIONERS
AND
THE OFFICIAL RECEIVER ……………..……………… RESPONDENT
RULING
1. The Petitioners/Applicants filed a petition dated 8.9.2025 seeking orders that the estate of the late Henry Gitonga Mwambura (deceased ) be adjudged bankrupt under the Insolvency Act No. 18 of 2025. The Petitioners also seek that the official receiver be appointed as the trustee in bankruptcy of the estate of the late Henry Gitonga Mwambura ( Deceased ).
2. Simultaneously with the Petition, the petitioners filed a notice of motion dated 16.9.2025. In the said motion, the petitioners are seeking the following orders;
(i ) That the honourable court be pleased to grant a stay of the decree and any further proceedings in Bungoma ( CMCC NO. 277 of 2019 including execute of the decree therein pending the hearing of the bankruptcy proceedings herein and that costs be provided for.
3. Through a supporting affidavit dated 16.9.2024 the applicants Rose Njoki Mwambura and Haron Gitonga Mwambura depone that they are petitioners on behalf of the estate of Henry Gitonga Mwambura ( deceased). One Njenga Baiya a creditor to the estate instructed the firm of M/S Amani Wekesa Associates to file a suit against the estate of the late Henry Gitonga Mwambua (Deceased) in Bungoma Chief Magistrate Court Civil Suit No.277 of 2019
3. It is further deponed that Mr Nyenga Baiya, the creditor, obtained judgment against the estate for the sum of Kshs. 670719/- inclusive of costs of the suit and interest thereto. Despite their pleas to the trial court that the deceased left no estate to settle the civil debts their pleas were dismissed hence the petition. The judgment creditor is executing against them in their personal capacity and has since taken out warrants of arrest against them. They stand to be incarcerated for the monies due and belong to the deceased’s estate, which estate has no ability to settle the civil debt. The deceased’s creditors will not suffer in due prejudice if a stay is granted pending the hearing of the bankruptcy proceedings.
4. The application is brought under Article 23 (3) of the Constitution and Order 40 Rule 1. Article 23 (3) of the Constitution deals with proceedings brought under Article 22, in which a court may grant appropriate relief. Order 40 (1) deals with cases in which a temporary injunction may be granted.
DETERMINATION
5. I have considered the application, the law , I find as follows: the applicants have approached this court under Article 23 (3) of the Constitution and Order 40 Rule 1 of the Civil Procedure Rules. Section 364(1) of the Insolvency Act 18 of 2015 states as follows; “The executor or administrator, or a person who is applying to the Court for a grant of probate or letters of administration, may apply to the Court for an order that the estate be administered under this Part if the executor or administrator or person applying is of the view that the money in the estate (together with the proceeds of any assets in the estate that can conveniently be converted into money) will not be, or is not likely to be, sufficient to satisfy the several claims made or likely to be made on the estate.”
6. 8. In the current case, the Respondent has a valid decree against the Estate of the deceased. There is no evidence that the said Estate has no assets. Further, the applicants have been appointed the administrators of the deceased’s estate but have not been appointed as trustees or administrators under the Insolvency Act. The applicants need to acquire the status under the insolvency law as administrators. The petition is yet to be heard. In my view, the application before me is incompetent and I decline to grant the order sought in the application dated 16.9.2025. The earlier order staying execution is hereby set aside. No order as to costs.
Dated, signed and delivered at Bungoma this 17 th Day of March 2026.
R. OUGO
JUDGE
In the presence of:
Miss Wambani - For the Petitioner/ Applicant
Respondent- Absent
Wilkister - C/A
INSOLVENCY PETITION NO. E001 OF 2025 3
IN THE HIGH COURT OF KENYA AT BUNGOMA
INSOLVENCY PETITION NO. E001 OF 2025
IN THE MATTER OF THE INSOLVENCY ACT NO. 18 OF 2015
AND
IN THE MATTER OF A PETITION FOR BANKRUPTCY BY ROSE NJOKI MWAMBURA
(PETITIONING ON BEHALF OF THE ESTATE OF THE LATE HENRY GITONGA MWAMBURA – DECEASED )
PETITION OR BANKRUPTCY
BETWEEN
ROSE NJOKI MWAMBURA AND HARON GITHINJI MWAMBURA (Petitioning on behalf of the estate of the late HENRY GITONGA MWAMBURA - DECEASED )…………………..…….. PETITIONERS
AND
THE OFFICIAL RECEIVER ……………..……………… RESPONDENT
RULING
1. The Petitioners/Applicants filed a petition dated 8.9.2025 seeking orders that the estate of the late Henry Gitonga Mwambura (deceased ) be adjudged bankrupt under the Insolvency Act No. 18 of 2025. The Petitioners also seek that the official receiver be appointed as the trustee in bankruptcy of the estate of the late Henry Gitonga Mwambura ( Deceased ).
2. Simultaneously with the Petition, the petitioners filed a notice of motion dated 16.9.2025. In the said motion, the petitioners are seeking the following orders;
(i ) That the honourable court be pleased to grant a stay of the decree and any further proceedings in Bungoma ( CMCC NO. 277 of 2019 including execute of the decree therein pending the hearing of the bankruptcy proceedings herein and that costs be provided for.
3. Through a supporting affidavit dated 16.9.2024 the applicants Rose Njoki Mwambura and Haron Gitonga Mwambura depone that they are petitioners on behalf of the estate of Henry Gitonga Mwambura ( deceased). One Njenga Baiya a creditor to the estate instructed the firm of M/S Amani Wekesa Associates to file a suit against the estate of the late Henry Gitonga Mwambua (Deceased) in Bungoma Chief Magistrate Court Civil Suit No.277 of 2019
3. It is further deponed that Mr Nyenga Baiya, the creditor, obtained judgment against the estate for the sum of Kshs. 670719/- inclusive of costs of the suit and interest thereto. Despite their pleas to the trial court that the deceased left no estate to settle the civil debts their pleas were dismissed hence the petition. The judgment creditor is executing against them in their personal capacity and has since taken out warrants of arrest against them. They stand to be incarcerated for the monies due and belong to the deceased’s estate, which estate has no ability to settle the civil debt. The deceased’s creditors will not suffer in due prejudice if a stay is granted pending the hearing of the bankruptcy proceedings.
4. The application is brought under Article 23 (3) of the Constitution and Order 40 Rule 1. Article 23 (3) of the Constitution deals with proceedings brought under Article 22, in which a court may grant appropriate relief. Order 40 (1) deals with cases in which a temporary injunction may be granted.
DETERMINATION
5. I have considered the application, the law , I find as follows: the applicants have approached this court under Article 23 (3) of the Constitution and Order 40 Rule 1 of the Civil Procedure Rules. Section 364(1) of the Insolvency Act 18 of 2015 states as follows; “The executor or administrator, or a person who is applying to the Court for a grant of probate or letters of administration, may apply to the Court for an order that the estate be administered under this Part if the executor or administrator or person applying is of the view that the money in the estate (together with the proceeds of any assets in the estate that can conveniently be converted into money) will not be, or is not likely to be, sufficient to satisfy the several claims made or likely to be made on the estate.”
6. 8. In the current case, the Respondent has a valid decree against the Estate of the deceased. There is no evidence that the said Estate has no assets. Further, the applicants have been appointed the administrators of the deceased’s estate but have not been appointed as trustees or administrators under the Insolvency Act. The applicants need to acquire the status under the insolvency law as administrators. The petition is yet to be heard. In my view, the application before me is incompetent and I decline to grant the order sought in the application dated 16.9.2025. The earlier order staying execution is hereby set aside. No order as to costs.
Dated, signed and delivered at Bungoma this 17 th Day of March 2026.
R. OUGO
JUDGE
In the presence of:
Miss Wambani - For the Petitioner/ Applicant
Respondent- Absent
Wilkister - C/A
INSOLVENCY PETITION NO. E001 OF 2025 3