1. Peter Mulei and Sons Limited is a limited liability company incorporated under in Kenya (“the Company”). It principal business in running supermarkets. It is the subject of two petitions seeking to liquidate it.
2. The first one is filed by Somotex (K) Limited is dated 7th February 2022. It is grounded on a statutory demand dated 20th December 2021 demanding Kshs. 8,531,580.00 being money due and on account of goods sold and delivered to the Company by the petitioner.
3. The second petition is dated 26th May 2022 and is brought by Kim Fay East Africa limited. It is grounded on a statutory demand served on the Company dated 8th April 2022 based on a debt of Kshs. 2,569,153.01 due and owing to the petitioner on account of goods sold and delivered to it.
4. The matter was set down for hearing on today, 13th December 2020. The Company does not oppose the Petition. The unsecured creditors, who are its suppliers, do not oppose the respective petitions. The Company is no longer trading as it is now under a receiver appointed by NCBA Bank Kenya PLC.
5. I have reviewed the material on record and it is apparent that the Company is insolvent and cannot pay its debts as and when they fall due and it would be interests of all the parties to liquidate the Company.
6. Under section 424 of the Insolvency Act provides the circumstances under which the court may liquidate a company including inability to pay its debts. Section 427(1) and (2) of the Act which sets out the powers of the court when presented with a liquidation petition as follows:
427. Powers of Court on hearing of liquidation application
(1) On the hearing of a liquidation application, the Court may make such of the following orders as it considers appropriate:
(a) an order dismissing the application;
(b) an order adjourning the hearing, conditionally or unconditionally;
(c) an interim liquidation order; or
(d) any other order that, in its opinion, the circumstances of the case require.
(2) However, the Court may not refuse to make a liquidation order on the ground only that the company’s assets have been mortgaged to an amount equal to or in excess of those assets, or that the company has no assets.
(3) --------
(4) --------
7. Having been satisfied that the Company is insolvent, I now make the following orders:
(a) A Liquidation order be and is hereby issued against the Company, PETER MULEI AND SONS LIMITED.
(b) The Official Receiver be and is hereby appointed as the Interim Liquidator of PETER MULEI AND SONS LIMITED.
(c) The costs of the Petition shall be borne out of the Company’s assets.
(d) Mention on 24th February 2023 for further directions.
DATED and DELIVERED at NAIROBI this 13th day of DECEMBER 2022.
D. S. MAJANJA
JUDGE