Court dismisses petition to wind up aviation firm

The Court of Appeal has saved Bluebird Aviation Limited from being wound up under the old Companies Act.

This is after three judges agreed with the High Court that a private institution cannot be shut down based on the repealed Companies Act Cap 468.

“If the winding up petition had been filed before the commencement of the Insolvency Act, the petition would have been properly before the court, even if during its pendency the Companies Act Cap 486 had been repealed,” read the court’s decision.

Appellate judges Roselyne Nambuye, Daniel Musinga and Patrick Kiage made the decision in a petition in which Bluebird Aviation’s co-director Yusuf Abdi Adan wanted the business wound up on grounds that the other directors had excluded him from managing it.

However, the judges said Mr Adan was not without recourse in law because he could still file an appropriate petition if he intended to pursue the issue.

Past event

In upholding the High Court decision, the judges disagreed with Aden that the filing of the petition could be deemed as a past event because the company was incorporated under the repealed law.

Aden, who has 25 per cent shares in the company that was incorporated on May 29, 1992 under the old law, moved to court on March 9, 2016 after falling out with the other directors - Hussein Ahmed Farah, Hussein Unshur Mohammed and Mohamed Abdikadir Adan.

In the petition, filed under the repealed law as read with the Insolvency Act 2015, Adan claimed the company had not held an annual general meeting and had not received any dividend as a shareholder.

The businessman argued that a section of the Insolvency Act of 2015 that came into operation on January 18, 2016 only caters for companies that were incorporated under the Companies Act of 2015.

The other directors and the company filed applications to strike out his petition, saying the term winding-up under the repealed Companies Act had been replaced with liquidation.