On Monday, November 19, 2018, the High Court declined to shut down a winding-up petition against Kevian Ltd, giving Hipora Business East Africa Ltd’s claim another chance to be tested at a full hearing.
Justice Francis Tuiyott said the dispute over the alleged Sh2,799,625 debt could not be resolved at that stage without cross-examining witnesses and examining the correspondence exchanged between the two companies.
Kevian, the maker of Afia and Pick N’ Peel juices, had been taken to court by Hipora, a firm that supplies staff to companies to monitor theft by customers and employees. Hipora said it had deployed eight workers — three system controllers and five double checkers — at Ngong Road, Thika, and the old Castle Brewing plant, with monthly pay of Sh52,000 and Sh42,500 respectively.
The liquidation case was built on Hipora’s position that Kevian was unable to settle its debts. Mr Kimani Rugendo rejected that claim and, in an affidavit sworn on December 20, 2017, said the dispute was tied to events at Kevian’s Ramani, Thika warehouse.
According to Mr Rugendo, the warehouse was broken into on the night of January 7, 2017, while security guards were allegedly working with thieves and one Hipora employee. He further alleged that the Hipora 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. It also responded to Hipora’s May 2017 demand letter by denying the payment claim and filing a counterclaim of Sh19.7 million.
Mr John Wanjohi, one of Hipora’s owners, told the court that the theft allegation was an afterthought intended to defeat the winding-up proceedings.
In his ruling, Justice Tuiyott said the court would not at that point conduct a detailed examination of the affidavit evidence, since those issues could be probed through cross-examination. He added that where a debt is disputed, a petition is unlikely to succeed, but said it was only fair for the matter to proceed to hearing.
The ruling means the petition against Kevian remains alive, with the competing claims over debt, theft, and counterclaim now headed for fuller judicial scrutiny.
