Section 365 of Insolvency Act CAP 53: Application by creditor or beneficiary for order under this Part
(1) An application to the Court for an order under this Part may also be made—
(a) by a creditor of the deceased's estate, if the creditor's debt has reached the threshold for a creditor's application for bankruptcy; or (b) by a beneficiary.
(2) A creditor or beneficiary may apply for such an order if—
(a) the executor or administrator has not applied under this Part, and after being requested in writing to apply, fails to apply within twenty-one days after receiving the request; or
(b) no executor or administrator has been appointed, and no application has been lodged in the Court under section 364, within four months after the date of the debtor's death.
(3) In the case of an application under subsection (2)(a) for an order that the estate be administered under this Part, the Court may not make the order before the expiry of two months after the date when probate or letters of administration were granted, but this restriction does not apply if— (a) the executor or administrator has consented; (b) the applicant proves that—
(i) the deceased was not insolvent at any time within three months before the death; or
(ii) the executor or administrator has favoured or is about to favour any particular creditor or creditors; or
(c) in the Court's opinion, the executor administrator is not properly administering estate.
(4) The Court may allow an application under subsection (2)(b) to be lodged before the expiry of four months after the date of the debtor's death if satisfied that—
(a) the deceased was insolvent at any time within the three months preceding the death; or
(b) the estate that should have been available for the deceased's creditors is rapidly diminishing.
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- Section 366 - Notice of application by creditor or beneficiary
If an application has been lodged by a creditor or beneficiary under section 365, the applicant shall give notice of the application—
(a) to the executor or administrator; or
(b) if there is no...
- Section 367 - Court may order administration by Official Receiver or the Public Trustee instead of executor or administrator
(1) This section applies if—
(a) an application has been made to the Court for an order to administer an estate under this Part; and
(b) the Court believes that the estate is likely to be better...
- Section 368 - Certificate lodged by the Public Trustee has effect as application and order
(1) If the Public Trustee is the executor or administrator of, or would be entitled to obtain a grant of administration for, an apparently insolvent estate, the Public Trustee may lodge a certificate...
- Section 369 - Estate vests in trustee
(1) The whole of the estate at the date when the application for the order under this Part was lodged vests in the person appointed by the Court to administer it as trustee.
(2) In its order that the...
- Section 370 - Trustee to realise, administer and distribute estate
The trustee shall, as soon as practicable after the estate vests in the trustee, realise, administer, and distribute the assets in accordance with the law and practice of bankruptcy, subject to any...
- Section 371 - Entitlement of surviving spouse to household furniture and effects
(1) This section applies if the estate that vests in the trustee includes any of the deceased's necessary household furniture and effects that would have passed to the deceased's surviving spouse if...
- Section 372 - Trustee may make allowance to surviving spouse
(1) The trustee may make an allowance out of the estate to the surviving spouse or to any of the relatives or dependants of the deceased or the surviving spouse for the support of any of...
- Section 373 - Application of Division 3
This Division applies if the Court has made an order that the estate of a deceased person be administered under this Part.
- Section 374 - Trustee's functions and powers in respect of insolvent deceased's estate
The trustee has, in relation to the estate, the same functions and powers as a bankruptcy trustee has in relation to the property of a bankrupt.
- Section 375 - Distribution of insolvent deceased's estate
(1) The trustee shall distribute the estate in the following order—
(a) firstly, payment of all proper costs, charges, debts and expenses of the due administration of the estate, whether incurred...
- Section 376 - How any surplus is to be paid
(1) In this section, "surplus" means the surplus of assets that remains with the trustee after the trustee has paid in full—
(a) the debts due by the deceased debtor;
(b) the costs of the...
- Section 377 - Creditor's notice to executor or administrator
If an order that a deceased's estate be administered under this Part is notified to the deceased's executor or administrator, the executor or administrator may obtain a proper discharge for any...
- Section 378 - Power of trustee to act in relation to deceased's irregular transactions
(1) A trustee may take a step that a bankruptcy trustee could have taken under Division 19 of Part III (for example, by cancelling an irregular transaction) as if the deceased had been bankrupt at the...
- Section 379 - Trustee may cancel execution against insolvent deceased debtor's estate
The trustee may cancel an execution against the deceased debtor's estate unless it was completed more than three months before the date of the order that the estate be administered under this Part.
- Section 380 - Certain acts of executor or administrator valid if done in good faith
A payment made, or an act done or omitted to be done, in good faith by an executor or administrator in respect of a deceased's estate before the executor or administrator had notice of an intention to...
- Section 381 - Scheme of Part VI
(1) This Part applies to the liquidation of a company registered under the Companies Act (Cap. 486).
(2) A liquidation may be either—
(a) voluntary in accordance with Divisions 2 to 5; or (b) by the...
- Section 382 - Distinction between "members" and "creditors" voluntary liquidation
In this Part—
(a) a liquidation in the case of which a directors' statutory declaration under section 398 has been made is a "members' voluntary liquidation"; and
(b) a liquidation in the case of...
- Section 383 - Interpretation: Part VI
(1) In this Part—
"contributories"—
(a) means all persons liable to contribute to the assets of a company if it is liquidated; and
(b) for the purposes of all proceedings for determining, and all...
- Section 384 - The circumstances in which a company is unable to pay its debts
(1) For the purposes of this Part, a company is unable to pay its debts—
(a) if a creditor (by assignment or otherwise) to whom the company is indebted for hundred thousand shillings or more has...
- Section 385 - Liability as contributories of present and former members
(1) When a company is being liquidated, every present and former member is liable to contribute to its assets to any amount sufficient for payment of its debts and liabilities, and the expenses of the...
- Section 386 - Liability of past directors and shareholders
(1) In this section, "relevant payment" means a payment made out of capital in respect of the redemption or purchase by a company of any of its own shares.
(2) This section applies if a company is in...
- Section 387 - Position of limited companies that were formerly unlimited
(1) This section applies to a company that is in liquidation if it was previously registered as unlimited but has since become re-registered as a limited company.
(2) Despite section 385(2)(a), a...
- Section 388 - Position of unlimited companies that were formerly limited
(1) This section applies to a company in liquidation that has previously been registered as limited but has since become re-registered as unlimited.
(2) A person who, at the time when the application...
- Section 389 - Nature of contributory's liability
The liability of a contributory creates an ordinary contract debt due from the contributory at the time when the contributor's liability began, but payable at the times when calls are made to enforce...
- Section 390 - Death of contributories not to affect their liability
(1) If a contributory dies either before or after being placed on the list of contributories, the contributory's personal representatives are, in administering the contributory's estate, liable to...
- Section 391 - Liability of contributories who are adjudged bankrupt
If a contributory is adjudged bankrupt, either before or after being placed on the list of contributories, the following provisions apply—
(a) the contributory's bankruptcy trustee represents the...
- Section 392 - Liability of contributories to contribute to debts of company registered but not formed under Companies Act
(1) This section applies to a company in liquidation that is registered but was not formed under the Companies Act (Cap. 486).
(2) A person is, in respect of the company's debts and liabilities...
- Section 393 - Circumstances in which company may be liquidated voluntarily
(1) A company may be liquidated voluntarily—
(a) when the period (if any) fixed for the duration of the company by the articles expires, or the event (if any) occurs, on the occurrence of which the...
- Section 394 - Notice of resolution to liquidate
(1) Within fourteen days after a company has passed a resolution for its voluntary liquidation, it shall publish a notice setting out the resolution—
(a) once in the Gazette;
(b) once in at least...
- Section 395 - When liquidation commences
The voluntary liquidation of a company commences when the resolution for voluntary liquidation is passed.
- Section 396 - Consequences of resolution to liquidate
(1) On and after the commencement of voluntary liquidation of a company, the company shall cease to carry on its business, except in so far as may be necessary for its beneficial...
- Section 397 - Share transfers and attempts to alter member's status after liquidation resolution to be void
The following are void if made after the commencement of a voluntary liquidation of a company—
(a) any transfer of the company's shares (other than a transfer made to or with the sanction of the...
- Section 398 - Making and effect of declaration of solvency by directors of company
(1) If it is proposed to liquidate a company voluntarily, the directors (or, in the case of a company having more than two directors, the majority of them) may at a directors' meeting make a statutory...
- Section 399 - Appointment of liquidator in members' voluntary liquidation
(1) In a members' voluntary liquidation, the company in general meeting shall appoint one or more liquidators for the purpose of liquidating the company's affairs and distributing its assets.
(2) On...
- Section 400 - Power to fill vacancy in office of liquidator
(1) If a vacancy occurs (whether by death, resignation or otherwise) in the office of liquidator appointed by the company, the company in general meeting shall, subject to any arrangement with its...
- Section 401 - General company meeting at each year's end
(1) If the liquidation of a company continues for a period of twelve months or more, the liquidator shall convene a general meeting of the company—
(a) within three months after the end of that...
- Section 402 - Final meeting prior to dissolution: members' voluntary liquidation
(1) As soon practicable after the liquidation of the company's affairs is complete, the liquidator—
(a) shall prepare an account of the liquidation showing how it has been conducted and how the...
- Section 403 - Effect of company’s insolvency
(1) This section applies if the liquidator is of the opinion that the company will be unable to pay its debts in full (together with interest at the official rate) within the period stated in the...
- Section 404 - Conversion to creditors' voluntary liquidation
As from and including the date on which the creditors' meeting is held in accordance with section 403— (a) this Part has effect as if—
(i) the directors' declaration under section 398 had not been...
- Section 405 - Application of Division 4
(1) Except as provided by subsection (2), this Division applies in relation to a creditors' voluntary liquidation.
(2) Sections 406 and 407 do not apply if, under section 404, a members' voluntary...
- Section 406 - Meeting of creditors to be convened by company
(1) A company that is in the course of liquidation shall—
(a) convene a meeting of the company's creditors for a day not later than the fourteenth day after the day on which there is to be held the...
- Section 407 - Directors to lay statement of financial position before creditors
(1) The directors of the company shall—
(a) prepare a statement setting out the financial position of the company that complies with subsection (3);
(b) lay that statement before the creditors'...
- Section 408 - Creditors' voluntary liquidation: appointment of liquidator
(1) The creditors and the company at their respective meetings may nominate an authorised insolvency practitioner to be liquidator for the purpose of liquidating the company's affairs and distributing...
- Section 409 - Creditors may appoint liquidation committee
(1) The creditors at the meeting to be held in accordance with section 406 or at any subsequent meeting may, if they think appropriate, appoint a liquidation committee of not more than five persons to...
- Section 410 - Creditors' meeting if liquidation converted under section 404
If, in the case of a liquidation that was under section 404 converted to a creditors' voluntary liquidation, a creditors' meeting is held in accordance with section 403, any appointment made or...
- Section 411 - Cessation of directors' powers
On the appointment of a liquidator, all the powers of the directors cease, except so far as the liquidation committee, or if there is no such committee, the creditors, sanction their continuance.
- Section 412 - Vacancy in office of liquidator: creditors' voluntary liquidation
(1) If a vacancy occurs in the office of liquidator, the creditors may fill the vacancy.
(2) Subsection (1) does not apply to a liquidator appointed by, or by the direction of, the Court.
- Section 413 - Meetings of company and company's creditors to be held every twelve months
(1) A liquidator who continues in office for more than twelve months shall convene a general meeting of the company and a meeting of the creditors to be held—
(a) within three months after the end of...
- Section 414 - Final meeting prior to dissolution: creditors' voluntary liquidation
(1) As soon practicable after the liquidation of the company's affairs has been completed, the liquidator shall prepare an account of the liquidation and an explanation showing how it has been...
- Section 415 - Property of company to be distributed among members after satisfaction of liabilities
(1) On the liquidation, the company's property in the voluntary liquidation—
(a) are to be applied in satisfaction of the company's liabilities equally and without preference; and
(b) subject to...