Automated Summary
Key Facts
The court dismissed the Applicant's original application (dated 8th April 2025) and amended application (dated 13th May 2025) due to procedural irregularities. The amended application was filed without prior court leave, violating procedural rules. The original application was based on Section 560 of the Insolvency Act, which applies to companies under administration, while the Respondent (ARM Cement PLC) had transitioned to liquidation in October 2022. The Applicant failed to cite the correct legal provisions (Section 432 of the Insolvency Act) for proceedings against a liquidated company, rendering both applications incompetent and void.
Issues
- Whether the Application dated 8th April 2025 is merited, particularly as it relied on Section 560(1) of the Insolvency Act for a company under liquidation. The court highlighted the distinction between liquidation (Section 432) and administration (Section 560) frameworks, finding the application incompetent for citing incorrect provisions.
- Whether the Amended Application dated 13th May 2025 is properly on record, having been filed without prior leave of the Court. The court examined procedural compliance under the Civil Procedure Act and Insolvency Act, noting that amendments after pleadings close generally require judicial approval to ensure fairness.
Holdings
- The Application dated 8th April 2025 is also dismissed as it was based on incorrect legal provisions (Section 560 of the Insolvency Act) for a company under liquidation, not administration. The court ruled it incompetent and bad in law.
- The court found that the Amended Application dated 13th May 2025 is not properly on record as it was filed without prior leave of the Court. The amendment was deemed irregular and expunged from the court record.
Remedies
- The Amended Application dated 13th May 2025 is expunged from the court record as it was filed without prior leave. The court found the amendment irregular and a violation of procedural rules, rendering it void ab initio and requiring its removal from the record.
- The Application dated 8th April 2025 is dismissed as it was based on incorrect legal provisions (Section 560 of the Insolvency Act) applicable to administration, while the Respondent is under liquidation. The court ordered costs of Kshs.20,000 for each application.
Legal Principles
- The court dismissed the application as ultra vires, noting it was filed under Section 560(1) of the Insolvency Act—which applies to companies under administration—despite the respondent being in liquidation. This highlights the principle that courts must be moved under the correct legal provisions.
- The court applied Article 159(2)(d) to determine whether procedural defects could be disregarded for substantive justice. However, it concluded the defect (filing without leave) was not a technicality but a material procedural failure, necessitating dismissal.
- Amendments to pleadings after service require court leave under the Civil Procedure Act and Rules. The court emphasized adherence to procedural requirements, rejecting the applicant’s claim that Article 159(2)(d) of the Constitution could override this obligation.
Precedent Name
- Boniface Mutinda Kabaka v David Mutua Kamonde Katua & 51 Others
- Ismail Rahimtulla Trustees v Spencon Kenya Limited (Under Administration) & 2 Others
- Jatomy Supermarkets Limited v Kenafriic Industries Limited & 2 Others
- Michael Munqai v Housingq Finance Co. (K) Ltd & 5 Others
- Emmanuel Freudenthal & Another v Sonia Ryrie & Another
- Ann Wangeci Mariga & 2 Others v Margaret Waniiru Mariga & Another
- Zacharia Okoth Obanado -V- Edward Akong'o Oyugi & 2 Others
- Public Trustee v Pius M. Katambo
- Daniel Kimani Njihia v Francis Mwangi Kimani & Another
Cited Statute
- Civil Procedure Rules
- Insolvency Act No. 18 of 2018
- Civil Procedure Act
- Constitution of Kenya
Judge Name
Nio Adagi
Passage Text
- For this reason, I make a finding that the amendment carried out was irregularly done and, on this account, the Amended notice of motion application dated 13th May 2025 ought to be expunged from the Court record as it is done in contravention of the rules of procedure put in place to create order and fairness.
- This court similarly finds the Applicant's Application dated 8th April 2025 to be incompetent and bad in law having been brought under the wrong provisions of the law... The Application also improperly refers to and seeks orders against the 'Administrators' of the Respondent including special leave to continue with proceedings against a company under administration, despite there being no Administrators currently in office as demonstrated by the Respondent.