Bankruptcy law in kenya free essay sample

The Kenyan Insolvency Bill 2012 is an act of parliament to: amend and consolidate the law relating to the insolvency of natural persons and incorporated and unincorporated bodies; to provide alternative procedures to bankruptcy that will enable the affairs of insolvent natural persons to be managed for the benefit of their creditors; to provide for the liquidation of incorporated bodies (including solvent ones); to provide as an alternative to liquidation procedures that will enable the affairs of such of those bodies as become insolvent to be administered for the benefit of their creditors; and to provide for related and incidental matters Individual insolvency refers to the inability of a debtor to pay his debts as and when they fall due. The individual status refers to natural persons only and not corporations. BACKGROUND The bill was enacted to streamline regulation and ownership of businesses in Kenya by introducing international best practices on corporate law and management of insolvency1. The Insolvency Bill was set to repeal the outdated Bankruptcy Act Cap 53 by simplifying insolvency proceedings. This major reform was a reaction to the wind of change in the wake of the country’s position in â€Å"Ease of doing business† in East Africa, with Kenya dropping to 3rd position in â€Å"Doing Business 2013† ranking in the region. The Companies Bill now the Companies Act 2012 was also set forward to reformulate and improve the business climate in Kenya2. The bill primarily seeks to provide independent administrators with control of businesses at the point of insolvency and duty of equitable distribution of liquidation assets among the directors. The legislators’ intention was to limit creditors’ leeway to liquidate companies that could otherwise be salvaged through management restructuring or improvement. ‘Insolvency Reform in Africa’ a report by Mahesh Uttamchandani the Global Product Leader on Restructuring Insolvency, from World Bank Group, states that stakeholders recover little from NPLs (Non-Performing Loans). From their collected statistics in Kenya; Country Aggregate value of NPLs (2008)total Amount Recovered under current recovery rates. Total Value destruction. total Recovery rate DB 2011(cents on the dollar) Time DB 2011(years) Kenya 1,091,249,246 325,192,275 766,056,971 Source: IMF, NPL data and Doing Business. The report further realized the following challenges facing the insolvency regime: Even basic processes such as liquidation take too long; Reorganization rates are very low; Very little returned to stakeholders; Under-regulation of Liquidators and Receivers It can be clearly seen that a better insolvency regime was in need and the 2012 Bill succeeded the 2010 Bill which with also repealing the Bankruptcy Act it also: Seeks to encourage the dissolution of non-viable and inefficient businesses and the survival of the efficient ones and to maximize the value of liquidated assets. Provides effective mechanisms for indemnifying and prosecuting managers and directors whose illegal actions contribute to the insolvency of a firm NOTE: The Insolvency Bill 2010 was  initially rejected in 2010 and referred back to stakeholders for further review. After incorporating their amendments the bill was finally approved for gazettement and should now be referred to as the Insolvency Bill 2012. According to the office of the Chief Parliamentary Draftsman, the old 2010 bill is no longer applicable and will be formally withdrawn from the house. The new insolvency bill introduced a company voluntary arrangement procedure, along with the concept of administration. The insolvency practitioner would be required to be qualified and the aim of the legislation was to â€Å"help the profession to clean up its act†. Challenges to implementation were, amongst other things: Legislating for a modern insolvency legal framework The acceptance of that framework by society; Explaining to stakeholders how the system would Function Ensuring that the laws were passed by Parliament and then establishing the institutions necessary to implement them The presence of sufficient legal and economic expertise to implement the new regime. The most important and noticeable features relating to individual insolvency are substantially similar to those of corporate bodies’ insolvency however the provisions of liquidation and winding up are more detailed and exclusive to incorporated and unincorporated bodies alike. These salient features are as follows: 1. Circumstances where the individual is insolvent include where he has insufficient assets with which to discharge his debts and financial liabilities. An individual may be insolvent but not be bankrupt however cannot be bankrupt without being declared insolvent first. 2. Once insolvency is established a receiving order is prepared and granted by the court upon application of a bankruptcy petition filed by either the creditors or the debtor. NOTE: Once an order has been made against an individual then their creditors can no longer pursue them for payment. 3. A receiving order sought after by the debtor to declare himself insolvent does not conclusively declare him bankrupt however if the creditors agree on the individual’s composition or scheme of arrangement of his assets then the  order already granted will just be replaced by the courts with an adjudication order declaring bankruptcy. After the individual is made bankrupt, a trustee in bankruptcy is appointed. All the individual’s assets in his bankruptcy estate vest in the trustee and his ability to trade and take credit is restricted. NOTE: The Bankruptcy Act does not exclusively detail circumstances which a person cannot be a trustee or official receiver. The Insolvency Bill clearly states a trustee is either the official receiver (a civil servant and officer of the court) or a licensed insolvency practitioner. Insolvency Practitioner is a new term under the bill. Trustee must equally distribute assets to creditors with regard to their debts owed; maximize the assets’ liabilities. Official receiver or trustee has power to extend bankruptcy period under certain circumstances and this is achieved by seeking an order from the courts. 5. Individual Voluntary Arrangement (includes asset realization and payment scheme and schedule) is an agreement between an insolvent individual and his creditors which either compromises or provides a framework for the settlement of his debts. A composition or scheme of arrangement may be proposed by the debtor to his creditors and also has the option of seeking a court order preventing creditors taking recovery action for their debts until they have voted on the proposal at the first meeting of creditors. NOTE: This option was not applicable under the now repealed Bankruptcy Act. 6. Insolvent individuals, with modest means and no debts arising from carrying on a business may; apply to the official receiver for a debt relief order which prevents creditors from enforcing their debts against the individual for a year after which he is discharged from liability for those debts. Even if found bankrupt, the individual is allowed certain exemptions which permit him to retain a car, business equipment, personal property and a home as long as he continues to make payments on a loan secured by the property. The safeguards of the bankrupt to be able to conduct business and gain a fresh new start are well and better formulated in the bill than it was in cap 53 of laws of Kenya. 8. Once discharged from bankruptcy an individual is freed from their debts. The available exceptions are creditors who hold security or other legal charges over the individual’s assets. The discharged bankrupt will be liable to pay the required payments or else the secured or charged property will be relinquished by the creditors to recover the loans. 9. Creditors’ rights and liabilities relating to natural persons’ insolvency is limited to exercise since the assets and property of the individual are privately owned and there is no public records of accounts, audits and other financial books on his estate unless the nature of business requires him to keep such documents. 10. Supervisors for Individual Voluntary Agreements and Administrators must be quali? The bill provides that charge-holders should be given notice of any petition. If at the petition stage a receiver is already in place, then the court is required to dismiss any petition unless the charge-holder who appointed the receiver consents to the Administration Order. 12. The bill sets out various criteria for authorization as an Insolvency Practitioner. This could be via a recognized professional body or through a new body, the Insolvency Practitioners Board. This requirement will help the profession â€Å"clean up† its act and bar those considered un? t. The regulation and licensing of IPs was important, and it was essential to ensure a minimum level of professional standards and skills as; Knowledge of procedure; A minimum experience threshold; Personal attributes such as integrity; Suitability for their tasks; The physical capacity to be able to deal with matters entrusted to them; Independence in the matter; and To have acquired the confidence and the trust of all stakeholders. What is less clear from the wording of the bill compared to the bankruptcy act is whether a charge-holder could proceed to appoint a receiver after obtaining notice of a petition – something that could have important implications on the value of ? xed and ? oating securities. 2. The major change therefore is that the Administrator chosen by all creditors –rather than the receiver chosen by charge-holders– will deal with charged property and will account to the charge-holders thereon for which priorities remaining intact. 3. Unlike in the Bankruptcy Act, the Insolvency Bill deems an individual to be unable to pay his debts in certain circumstances thus declaring him not insolvent. Such circumstances are: REFORMS AND INNOVATIONS RELATING TO INDIVIDUAL INSOLVENCY From the highlighted features manifesting in the Insolvency Bill 2012, it is clear to note that there is still room for improvement and the government works with players in the economy and financial sector to develop legislations, policies, regulations and to ensure that procedures are up to international standards. Firstly, we have not seen any similar draft rules alongside the bill – but I feel, if properly tailored and incorporated, these would only serve to enhance this proposed Kenyan legislation. PwC, Price Waterhouse Coopers provides innovative and practical solutions in financial services. Financial Focus PwC3 January 2009 edition, promoted the proposed changes aimed at promoting the rescuing of businesses when they experience ? nancial dif? culty as opposed to placing them under receivership or liquidation. Radical changes, reforms and innovations to the then existing insolvency regime was: 1. The concept of â€Å"rescue culture† for survival, which has been increasingly embraced in legislation around the world following the development of the UNCITRAL Model Law for insolvency in 2001. 2. To draw a better balance between debtor and creditor rights. Many argue that existing insolvency law in Kenya overly favours the creditor – often banks or other charge-holders. Ultimately inadequate legislation to properly balance and protect creditor and debtor rights negatively affects inward investment and increases the cost of doing business. The new bill seeks to modernize insolvency legislation to the bene? Court involvement to be more pronounced. In this case the directors or one or more creditors of a distressed company can petition the court to make an Administration Order. The court must consider whether Administration will meet one of four â€Å"purposes†, including the survival of the company and whether it would result in a more advantageous outcome than would liquidation. Training institutions have to be made to create programmes for skills development with a view to ensuring that there would be a professional group of insolvency practitioners. The INSOL Africa Round Table 2012 is one such programme. The meeting in Nairobi offered the following reforms and innovations regarding insolvency matters; The background to the establishment and functioning of the Commercial Court, which had been particularly successful in reducing the backlog of cases. Dealing with the deployment of alternative dispute resolution (ADR) in facilitating informal corporate workouts. This is advantageous because of not being constrained either by the Courts or by statute but only by the â€Å"imagination and expertise of the participants†. There are many changes within the Insolvency Bill 2012. Two of the most radical, in my view, are:- the move to introduce two new legal procedures – Company/Individual Voluntary Arrangements (CVAs and IVAs) and Administration the requirement for any â€Å"Insolvency Practitioner† to be quali? ed Much of the bill, seem to closely mirror respective parts of the 1986 UK Insolvency Act. It should be remembered that the key provisions of the Companies Act in Kenya are based on the 1948 UK Companies Act. Moreover, the UK got its own dedicated Insolvency Act as far back as 1986 and then updated it in 2003 with the Enterprise Act. This does not seem to be a feature of IB 2012, something that in my view might well serve to frustrate the key intentions of the proposed legislation. Martin Whitehead4 who leads PwC’s Crisis Management team in East and Central Africa states â€Å"We need an insolvency act that will be workable, and so key interested parties – banks, corporate borrowers and insolvency practitioners – should be looking to fully participate in the process going forward. † Many grey areas remain†¦ but overall this bill is going in the right direction.