In re Bring Global Kenya Limited [2025] KEHC 2929 (KLR)

In re Bring Global Kenya Limited (Insolvency Petition E069 of 2024) [2025] KEHC 2929 (KLR) (Commercial and Tax) (6 March 2025) (Judgment)

Neutral citation: [2025] KEHC 2929 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Commercial Courts)

Commercial and Tax

Insolvency Petition E069 of 2024

F Gikonyo, J

March 6, 2025

Between

Golda Nkirote Ngera

Petitioner

and

Bring Global Kenya Limited

Respondent

Judgment

1. Bring Global Kenya Limited CPR/2013/98516 is a private limited company incorporated on 10th April 2013 under the Companies Act (CAP 486, Repealed). Its nominal share capital is Kshs. 20,000,000/- divided into 20,000,000 ordinary shares of Kshs. 1 each.

2. The petitioner, Golda Nkirote Ngera, filed the creditor’s insolvency petition dated 30th August 2024, seeking the following orders: -a.The court makes an order for the liquidation of the company.b.The costs of the petition to be provided out of the assets of the company in priority.

3. The petition is supported by a verifying affidavit sworn by Golda Nkirote Ngera on 30th August 2024.

4. The petitioner’s case is that the company is insolvent and unable to pay its debts. The company is indebted to her in the sum of USD 10,000. 00, the amount due from the Exit Agreement and Commission Entitlement dated 30th September 2020. She served the statutory demand dated 31st July 2024 for payment of the debt upon the company on 5th August 2024. However, 21 days lapsed since the demand was made but the company failed to pay the debt or any part of the debt or comply with the statutory demand. There was no application to set aside the statutory demand.

5. The company appointed Wambugu & Muriuku Advocates to represent it. However, it did not file any response to the petition.

Submissions 6. When the matter came up for mention on 18th February 2025, Mr. Obunde for the petitioner and Mr. Thuo for the company indicated that the parties had agreed to settle the petition through the consent dated 12th February 2025, in the following terms: -“By consent, the Court hereby orders that Bring Global Kenya Limited Of The Address, Muthangri Drive, Westlands, 1St Floor, P. O. Box 25840-00606, Nairobi, +254758 xxxxxx and info@bringglobal.com is allowed as follows:-1. The Court hereby orders that Bring Global Kenya Limited Of The Address, Muthangri Drive, Westlands, 1St Floor, P. O. Box 25840-00606, Nairobi, +254758 xxxxxx and info@bringglobal.com be liquidated by virtue of a liquidation order hereby made this date.2. The Court further orders that the Official Receiver in Insolvency of 17Th Floor, 316 Upperhill Chambers, 2Nd Ngong Avenue, P. O. Box 3404-00100, Nairobi and official.receiver@brs.go.ke be appointed as liquidator of the company.3. The costs of the petition amounting to Kshs. 400,000. 00 to be provided out of the assets of the company in priority according to para. 2(2) (b) of the Second Schedule of the Insolvency Act.”

Analysis and Determination 7. This is a liquidation petition by a creditor for the liquidation of a company for inability to pay its debts under Section 425(b) of the Insolvency Act.

8. Under Section 384 of the Insolvency Act a company is unable to pay its debts: -1. (a) if a creditor (by assignment or otherwise) to whom the company is indebted for a hundred thousand shillings or more has served on the company, by leaving it at the company's registered office, a written demand requiring the company to pay the debt and the company has for twenty-one days afterwards failed to pay the debt or to secure or compound for it to the reasonable satisfaction of the creditor;b.if execution or other process issued on a judgment, decree or order of any court in favour of a creditor of the company is returned unsatisfied in whole or in part; orc.if it is proved to the satisfaction of the Court that the company is unable to pay its debts as they fall due.2. A company is also unable to pay its debts for the purposes of this Part if it is proved to the satisfaction of the Court that the value of the company's assets is less than the amount of its liabilities (including its contingent and prospective liabilities).” (With emphasis)

9. In Kenya Artisans Limited v Chemical & Allied Workers Union [2021] eKLR the Court observed that: -32. The test for placing a company in liquidation, in short, is that it cannot pay its debts as they fall due. A company may be liquidated either voluntarily, by means of the board of directors passing a resolution to that effect, or an application can be made to court either by the company itself (a shareholders’ resolution is required) or by a creditor or shareholder of the company.33. The court must decide whether all of the requirements in terms of the Act for the granting of a liquidation order have been met. It is for courts to exercise their discretion once all of the requirements have been established on a prima facie basis. In the absence of special or unusual circumstances which the respondent must establish, the court should ordinarily grant a liquidation order once the requirements are met.”

10. The petition is accompanied by a verifying affidavit and a statutory demand as required under Regulation 77B of the Insolvency Regulations. The notice of the liquidation petition was published through gazette notice no. 517 in the Kenya Gazette of 17th January 2025, 30 days before the mention.

11. Accordingly, the petition has met the requirements for the grant of a liquidation order. Therefore, the consent is adopted as an order of the court.

12. The Official Receiver in Insolvency is appointed as the liquidator of the company to carry out the mandate set out in law. The order be served upon the Official Receiver immediately. Orders accordingly.

DATED, SIGNED AND DELIVERED THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 6TH DAY OF MARCH, 2025-------------------------F. GIKONYO MJUDGEIn the presence of: -Obunde for petitionerThuo for CompanyCA - Kinyua