Wakilii

In Re - Durant Radford and Co. Ltd (C.C. No. 242-1934)

East African Court of Appeal · [1937] EACA 209 · 1937 Petition Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Petition for winding-up order ancillary to English High Court winding-up
Decision
Winding-up order made ancillary to English proceedings with restricted liquidator powers pending further order

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court ordered the winding-up of an English company with assets and liabilities in Kenya, ancillary to the English winding-up. The Court held that winding-up should benefit all creditors wherever situated, and where a winding-up order exists in the country of incorporation, no special reason justified refusing a similar order in Kenya. The liquidator's powers were restricted to collecting assets, preparing a creditor list, and discharging current expenses pending further order.

Outcome

Winding-up order made ancillary to English proceedings with restricted liquidator powers pending further order

Facts

Durant Radford & Co., Ltd was incorporated in England in 1906 and established business in Kenya in 1919, principally trading in coffee. The Company ceased business in both England and Kenya in October 1934. On 23 October 1934, the Company presented a winding-up petition in the English High Court, and on 5 November 1934 an order was made winding up the Company with the Official Receiver appointed provisional liquidator. The Company then petitioned the Kenya Court for a winding-up order. Assets in Kenya consisted chiefly of sums due for coffee advances to planters, unrealisable immediately due to bad seasons but potentially sufficient to pay local creditors in full. A creditor objected, arguing local assets should be applied first to local creditors.

Issues

  1. Whether the Court should make a winding-up order ancillary to the winding-up order made by the High Court in England.
  2. Whether local assets in Kenya should be applied exclusively to pay local creditors before being made available to the liquidator in England.
  3. Whether the provisional liquidator appointed in England had authority to present the petition.

Orders

  • Order for the winding-up of the Company made.
  • Acting Official Receiver constituted provisional liquidator of the affairs of the Company.
  • Powers of the Acting Official Receiver as provisional liquidator limited and restricted to: (1) taking possession of, collecting and protecting the assets of the Company but not distributing or parting with same until further order; (2) preparing the list of creditors of the Company; (3) discharging rents, salaries and other current expenses.
  • Costs of the Company of the petition to be taxed and paid out of the assets of the Company.
  • Acting Official Receiver and any creditor at liberty to apply as advised.

Rules and key headnotes

Company Law — Winding-Up — Foreign Company — Ancillary Winding-Up
Where a winding-up order has been made in the country in which a company is incorporated, a court in another country in which the company has carried on business should make a similar winding-up order when requested, absent special reasons to refuse, with the local winding-up being ancillary to the principal winding-up.
Company Law — Winding-Up — Distribution of Assets — All Creditors
A winding-up should be carried on for the benefit of all creditors of a company wherever situated, not exclusively for the benefit of local creditors in the jurisdiction where assets are located.
Company Law — Winding-Up — Foreign Company — Effect of Foreign Order
A winding-up order made by a court in one jurisdiction does not affect the rights of creditors resident in another jurisdiction where the company has assets.
Company Law — Winding-Up — Ancillary Liquidation — Restricted Powers
In an ancillary winding-up, the court may restrict the powers of the provisional liquidator to collecting and protecting assets, preparing a creditor list, and discharging current expenses, without authority to distribute assets until further order, to avoid conflict between courts and ensure coordination with the principal liquidation.

Legislation cited (2)

  • Companies Ordinance 1921 s.277
  • Companies Ordinance 1933 s.316

Cases cited (3)

  • In re Commercial Bank of South Australia (1886) 33 Ch D 174
  • In re Matheson (1883) 27 Ch D 225
  • New Zealand Loan Co v Morrison (1897) 77 LT 603

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

In Re - Durant Radford and Co. Ltd (C.C. No. 242-1934) [1937] EACA 209 (1 January 1937)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.