From Debtor Repression to Protection: Giving Debtors a Fresh Start Under The Kenyan Insolvency Regime

Abstract

Anchored on the normative foundations of the fresh start
policy, this article examines the treatment of bankrupts under
Kenya’s repealed Bankruptcy Act, Cap 53 Laws of Kenya and
then traces the elements of the fresh start policy under the
Insolvency Act of 2015 that repealed Cap 53. Results show
that Cap 53 was repressive against the bankrupt and he was
never given a second chance in his economic and social life
for the benefit of his creditors. Results also show that under
the Insolvency Act of 2015, the bankrupt has a second chance
to run his businesses as a going concern and can therefore pay
his creditors from the proceeds of those businesses. The
paper concludes that the Insolvency Act of 2015 breathes
fresh life to the bankrupt and inspires optimism to creditors
that their debts stand a better chance to be paid than was the
case under the repealed Act.

Key Words: Bankruptcy Law; Repression; Protection; Fresh Start;
rehabilitation; discharged debtor, Kenya.