Automated Summary
Key Facts
NAKURU ELITE EDUCATION CENTRE LIMITED, a private company incorporated under the Companies Act in December 2006, was dissolved and struck off the register on 11 February 2009 due to incorrect advice from its accountant. Bernard Chweya Nyatino, a former director, petitioned for the company's restoration before the 10-year deadline from the gazette notice (GN No.1364 of 11 February 2009). The court ruled to restore the company's name to the register on 26 February 2010, with all pre-dissolution directors similarly restored. No orders were made regarding costs.
Issues
The court addressed the legal question of whether Nakuru Elite Education Centre Limited could be restored to the company register under Section 339 of the Companies Act, having been dissolved and struck off in February 2009 based on erroneous accounting advice. The application was made within the 10-year window prescribed by law, and the court ruled in favor of restoration, emphasizing the need to place the company and stakeholders in the same position as if the dissolution had not occurred.
Holdings
- The court ordered the restoration of all directors of the company immediately before the dissolution and made no orders as to costs.
- The court determined that the company should be restored to the register because the petition was filed within the 10-year period from the dissolution, as per the Companies Act.
Remedies
- All directors of the company immediately before the dissolution are similarly restored to their positions
- The company's name is restored to the register and a certified copy of the court's order must be delivered to the registrar
Legal Principles
The court applied the principle that a company or its former director may apply to restore a company's name to the register within ten (10) years from the publication of the notice of striking off under the Companies Act (Chapter 486). This principle allows restoration if the application is made before the 10-year deadline, ensuring the company and stakeholders are placed as close as possible to their pre-dissolution position.
Cited Statute
Companies Act
Judge Name
W. Ouko
Passage Text
- I am satisfied that a notice pursuant to section 399 aforesaid was published as the G.N. No.6193 on 19th July, 2008 and vide G.N. No.1364 of 11th February, 2009, the company was dissolved. A former director has brought the present petition before the expiration of ten (10) years from the date of the gazette notice and therefore, for those reasons, has satisfied me that the company ought to be restored to the register.
- The proviso to section 339 of the Companies Act allows the company itself or any director or its secretary to request the registrar to strike the company off the register. If the company or any member or creditor feels aggrieved by the striking off, the company any member or director may, before the expiration of ten (10) years from the publication in the Gazette of the notice of striking off, may apply to the court for the restoration of the company to the register and in ordering the restoration, the court may give such directions and make such provisions as seem just for placing the company and all other persons in the same position as nearly as may be as if the name of thecompany had not been struck off.
- It is finally ordered that all the directors of the company immediately before the dissolution be similarly restored.