The High Court declined to throw out a winding-up petition against Kevian Ltd, leaving billionaire businessman Kimani Rugendo to fight the claim at a full hearing.
Justice Francis Tuiyott said the dispute over the alleged debt needed to be tested through cross-examination, especially because the case turned on a series of letters exchanged between Kevian and Hipora Business East Africa Ltd.
Hipora is seeking to wind up Kevian over a claimed debt of Sh2,799,625. Kevian, which makes Afia and Pick N’ Peel juices, had hired Hipora to provide staff who monitored theft by customers and employees at different sites.
The company said Hipora deployed eight workers in total: three system controllers and five double checkers. They were stationed at Ngong Road, Thika, and the old Castle Brewing plant, with monthly pay set at Sh52,000 and Sh42,500 respectively.
Hipora later moved to liquidation proceedings on the basis that Kevian could not settle its debts. Rugendo rejected that position and, in an affidavit sworn on December 20, 2017, said the company’s Ramani, Thika warehouse was broken into on the night of January 7, 2017.
He alleged that security guards were working with thieves and that one Hipora employee was involved in the incident. Rugendo also claimed the staffer used Kevian’s stamp impression “for purposes of removing the company’s goods from the warehouse in a clear case of theft.”
Kevian valued the stolen goods at Sh19,710,306. In response to Hipora’s May 2017 demand letter, the manufacturer disputed the payment claim and raised its own counterclaim of Sh19.7 million.
John Wanjohi, one of Hipora’s owners, dismissed the theft allegation as an afterthought designed to defeat the winding-up case.
In his ruling, Justice Tuiyott said the court would not at that stage conduct a detailed examination of the affidavit evidence, since those claims could be challenged during cross-examination. He added that where a debt is disputed, a petition is unlikely to succeed, but it was still fair for the matter to proceed to hearing.
“It is plain and obvious to this Court that if the debt is disputed then the petition is unlikely to succeed and there would be no need to allow it to proceed to further hearing,” the judge said, adding that it was only fair that the petition proceeds to hearing.
