Section 505 of Insolvency Act CAP 53: Power of the Court to make orders against officers of company and others found to have participated in fraudulent trading by company in liquidation
(1) A liquidator of a company may make an application to the Court to make an order under subsection
(2) if—
(a) in the course of the liquidation of the company, the liquidator forms the view that a business of the company has been carried on with intent to defraud creditors of the company or creditors of any other person, or for any fraudulent purpose; and
(b) the liquidator believes that specified persons participated (directly or indirectly) in the business with the knowledge that the business was being carried on in that manner.
(2) If, on hearing an application made under subsection (1), the Court finds that the persons specified in the application did in fact participate (directly or indirectly) in a business of the company with the knowledge that it was being carried on in the manner referred to in subsection (1)(a), it may order those persons (or any of them) to make such contributions to the company's assets as the Court considers fair and reasonable.
(3) The persons specified in an application made under subsection (2) are entitled to be served with a copy of the application and to appear and be heard as respondents at the hearing of the application.
(4) If the Court makes an order against a person under subsection (2), it may also make an order disqualifying the person from—
(a) being or acting as a director of a company or a partner of a limited liability partnership;
(b) being or acting as a liquidator, provisional liquidator or administrator of a company or limited liability partnership;
(c) being or acting as a supervisor of a voluntary arrangement approved by the company or a limited liability partnership; or
(d) in any way, whether directly or indirectly, being concerned in the promotion, formation or management of a company or limited liability partnership,
for such period, not exceeding fifteen years, as may be specified in the order.
Enhance Your Research with Bookmarks and Annotations
Here's how you can use these features:
- To bookmark this page, click the "Bookmark this Page" button below the document title.
- To add an annotation, highlight text in the document and select "Add Annotation" from the toolbar that appears.
- These features are great for organizing your research and keeping track of key information.
- You can view and manage your bookmarks and annotations on your Bookmarks and Annotations page.
- Section 506 - Power of the Court to make orders against officers of company engaging in wrongful trading
(1) This section applies—
(a) to a company that is in insolvent liquidation; and
(b) to a person who, at a time before the commencement of the liquidation, was an officer of the company.
(2) For...
- Section 507 - Supplementary provisions relating to proceedings under sections 505 and 506
(1) On the hearing of an application under section 505 or 506, the liquidator may personally give evidence or call witnesses.
(2) If the Court makes an order under section 505 or 506, it may make...
- Section 508 - Director of company in insolvent liquidation prohibited from being director of, or being involved with, any other company that is known by a prohibited name
(1) This section applies to a person if—
(a) a company is in insolvent liquidation on or after the commencement of this section; and
(b) the person was a director of the company at any time during...
- Section 509 - Circumstances in which persons are personally liable for debts of company
(1) A person is personally responsible for all the relevant debts of a company if at any time—
(a) the person is involved in the management of the company in contravention of section 508;...
- Section 510 - Prosecution of delinquent officers and members of company in liquidation
(1) If, in the course of liquidating a company, the Court concludes that a person who was at the relevant time a past or present officer, or a member, of the company may have committed an offence in...
- Section 511 - Obligations arising under section 510
(1) For the purpose of an investigation by the Attorney-General under 510(4), a person has the same obligation to produce documents or give information, or otherwise assist the Attorney-General, as...
- Section 512 - Meaning of "unregistered company" for purposes of this Part
For the purposes of this Part, "unregistered company" includes any association and any company, other than a company registered under the Companies Act (Cap. 486).
- Section 513 - Liquidation of unregistered companies
(1) Subject to the provisions of this Part—
(a) any unregistered company may be liquidated under Pat VI; and
(b) the provisions of that Part relating to liquidation apply to an unregistered...
- Section 514 - Circumstances in which unregistered company can be liquidated
(1) The circumstances in which an unregistered company can be liquidated are as follows—
(a) if the company is dissolved, or has ceased to carry on business, or is carrying on business only for the...
- Section 515 - Company incorporated outside Kenya may be liquidated though dissolved
(1) If a company incorporated outside Kenya that has been carrying oh business in Kenya ceases to carry on business there, it can be liquidated as an unregistered company under this...
- Section 516 - Contributories in liquidation of unregistered company
(1) If an unregistered company is in liquidation, each person is a contributory who is liable—
(a) to pay or contribute to the payment of any debt or liability of the company;
(b) to pay or...
- Section 517 - Power of the Court to stay or restrain proceedings
The provisions of this Part with respect to staying or restraining legal proceedings against a company after the making of an application for liquidation and before the making of a liquidation order...
- Section 518 - Actions stayed on liquidation order
If an order has been made for liquidating an unregistered company, no legal proceedings may be begun or continued against a contributory of the company in respect of any debt of the company, except by...
- Section 519 - Provisions of this Part to be cumulative
(1) The provisions of this Part with respect to unregistered companies are in addition to those of Part VI with respect to the liquidation of companies by the Court.
(2) The Court or liquidator may...
- Section 520 - Interpretation: Part VIII
In this Part—
"administrator", in relation to a company, means a person appointed under this Part to manage the company's affairs and property, and, if the context requires, includes a former...
- Section 521 - What is administration?
For the purposes of this Act—
(a) a company is "under administration" while the appointment of an administrator of the company continues to have effect;
(b) a company "enters administration" when...
- Section 522 - The objectives of administration
(1) The objectives of the administration of a company are the following—
(a) to maintain the company as a going concern;
(b) to achieve a better outcome for the company's creditors as a whole than...
- Section 523 - Who can appoint an administrator?
A person may be appointed as administrator of a company—
(a) by administration order of the Court in accordance with Division 3;
(b) by the holder of a floating charge under section 534; or (c) by...
- Section 524 - Duty of administrator
The administrator of a company shall perform the administrator's functions as quickly and efficiently as is reasonably practicable.
- Section 525 - Status of administrator
An administrator is an officer of the Court, whether or appointed by the Court or not.
- Section 526 - Qualification for appointment of administrators
A person may be appointed as administrator of a company only if the person is an authorised insolvency practitioner.
- Section 527 - Administrator not to be appointed if company is already under administration
(1) Except as provided by subsection (2), a person may not be appointed as administrator of a company that is already under administration.
(2) Subsection (1) is subject to sections 606 to 613 and...
- Section 528 - Administrator not to be appointed if company is in liquidation
(1) A person may not be appointed as administrator of a company that is in liquidation because of— (a) a resolution for voluntary liquidation; or (b) a liquidation order.
(2) Subsection (1)(a) is...
- Section 529 - Administrator not to be appointed in respect of banking, finance and insurance companies
(1) A person may not be appointed under this Part as administrator of—
(a) a company that is a bank; or
(b) a company that enters into contracts of insurance or carries on insurance...
- Section 530 - What is an administration order?
An administration order is an order appointing a person as the administrator of a company and providing for the administration of the company by that person.
- Section 531 - Conditions for making administration orders
The Court may make an administration order in relation to a company only if satisfied—
(a) that the company is or is likely to become unable to pay its debts; and
(b) that the administration order...
- Section 532 - Who may make an application to the Court to for an administration order in respect of company
(1) An application to the Court for an administration order in respect of a company may be made only by the following persons—
(a) the company;
(b) the directors of the company;
(c) one or more...
- Section 533 - Powers of the Court on hearing application for administration order
(1) On hearing an application for an administration order in respect of a company, the Court may—
(a) make the administration order sought;
(b) dismiss the application;
(c) adjourn the hearing...
- Section 534 - Holder of floating charge may appoint administrator
(1) The holder of a qualifying floating charge in respect of a company's property may appoint an administrator of the company.
(2) For the purposes of subsection (1), a floating charge is a...
- Section 535 - Restrictions on the power of holder of floating charge to appoint administrator
(1) A person may not appoint an administrator under section 534 unless the person has given at least three days' notice to the holder of any prior floating charge that satisfies subsection (2) of that...
- Section 536 - Administrator not to be appointed if relevant floating charge is not enforceable
A person may not be appointed as administrator under section 534 if the floating charge on which the appointment depends is unenforceable.
- Section 537 - Holder of relevant floating charge to notify the Court on appointing administrator
(1) A person who appoints an administrator of a company under section 534 shall lodge with the Court
—
(a) a notice of appointment that complies with subsections (2); and
(b) such other documents...
- Section 538 - When administrator's appointment takes effect
The appointment of an administrator under section 534 takes effect when the requirements of section 537 are satisfied.
- Section 539 - Duty of holder of relevant floating charge to notify appointment to administrator and other persons
(1) As soon as is reasonably practicable after the requirements of section 537 are satisfied, the person who appointed the administrator under section 534 shall notify the administrator, and such...
- Section 540 - Power of the Court to order person invalidly appointed to be indemnified against liability
(1) If—
(a) a person purports to appoint an administrator under section 534; and
(b) the appointment is discovered to be invalid, any person who appears to the Court to have a legitimate interest in...
- Section 541 - Administrator may be appointed by company or by its directors
(1) A company may appoint an administrator.
(2) The directors of a company may appoint an administrator.
- Section 542 - Restrictions on power of company or its directors to appoint administrator
lf an administrator of a company— (a) is appointed under section 541; or
(b) is appointed on an application for administration made by the company or its directors, another person may not be...
- Section 543 - Other restrictions on power of company or its directors to appoint administrator
(1) If a moratorium for a company under Division 2 of Part IX ends on a date when no voluntary arrangement is in force in respect of the company, this section applies for the twelve months from and...
- Section 544 - Circumstances in which company or its directors may not appoint administrator
An administrator of a company may not be appointed under section 541 if—
(a) an application for the liquidation of the company has been presented and is not yet disposed of;
(b) an application for...
- Section 545 - Notice to be given of intention to appoint administrator
(1) A person who proposes to make an appointment under section 541 shall give to any person who is or may be entitled to appoint an administrator of the company under section 534 a notice that...
- Section 546 - Person giving notice of intention to appoint administrator to lodge certain documents with the Court
(1) As soon as practicable after a person has given notice of an intention to make an appointment under section 545, the person shall lodge with the Court—
(a) a copy of the notice and of any...
- Section 547 - Further restrictions on making appointments under section 541
(1) An appointment may not be made under section 541 unless the person who makes the appointment has complied with the requirements of section 545 and 546 and— (a) the period of notice specified in...
- Section 548 - Person appointing administrator under section 541 to lodge certain documents with the Court
(1) A person who appoints an administrator of a company under section 541 shall lodge with the Court
—
(a) a notice of appointment that identifies the administrator;
(b) a statement by the...
- Section 549 - What happens if no one is entitled to notice of intention to appoint administrator
If no person is entitled to notice of intention to appoint under section 545(1) so that section 547 does not apply, the statutory declaration accompanying the notice of appointment is ineffective...
- Section 550 - When appointment of administrator under this Division takes effect
The appointment of an administrator under section 541 takes effect when the requirements of section 548 are satisfied.
- Section 551 - Person making appointment to notify appointment to administrator and others
(1) As soon as is reasonably practicable after the requirements of section 548 are satisfied, the person who has appointed the administrator under section 541 shall notify the administrator, and such...
- Section 552 - Appointment under section 541 not to take effect in certain cases
If, before the requirements of section 548 are satisfied, the company enters administration under an administration order, or because of an appointment under section 534—
(a) the appointment under...
- Section 553 - Power of the Court to order person invalidly appointed to be indemnified against liability
(1) If—
(a) a person purports to appoint an administrator under section 541; and
(b) the appointment is discovered to be invalid, any person who appears to the Court to have a legitimate interest in...
- Section 554 - Power of the Court to make administration order in respect of company on application made by holder of qualifying floating charge even if company may be able to pay its debts
(1) If an application for administration in respect of a company—
(a) is made by the holder of a qualifying floating charge in respect of the company's property; and
(b) includes a statement that...
- Section 555 - Holder of qualifying floating charge may intervene in application made by person who is not the holder of such a charge
If—
(a) an application for administration in respect of a company is made by a person who is not the holder of a qualifying floating charge in respect of the company's property; and
(b) the holder...