1. This is an application dated 25th November 2024 and filed in court on the same date. The application is commenced by Burns & Flames Oil Limited, pursuant to the provisions of Sections 885 and 888 of the Companies Act, 2015 Laws of Kenya.
2. In the application, the Applicant seeks the order of this Court to extend the time for registration of the First Legal Charge dated 11th October 2024 in favour of NCBA BANK KENYA PLC over property known as NAIROBI BLOCK 82/8759(MAISONETTE NO.68) together with the improvements thereon for such period as the court may deem appropriate.
3. Section 888 of the Companies Act under which this application has been brought provides as follows; -
“888. Rectification of register of charges
(1) A company or interested person who claims that a failure to register a charge before the deadline for registration, or an omission or misstatement of a particular with respect to any such charge or in a memorandum of satisfaction or release –
(a) was accidental or due to inadvertence or to some other reasonable cause; or
(b) is not of a nature to prejudice the position of creditors or members of the company, may apply to the Court for an order under subsection (2).
(2) If, on the hearing of an application made under subsection (1), the Court is satisfied-
(a) that the failure, or the omission or misstatement-
(i) was accidental or due to inadvertence or to some other reasonable cause; or
(ii) is not of a nature to prejudice the position of creditors or members of the company; or
(b) that on other grounds it is just and equitable to grant relief, the Court may, subject to such conditions (if any) as it considers fair and reasonable, order the deadline for registration to be extended, or the omission or misstatement to be corrected.”
4. The application is supported by an affidavit of Michael Muchemi Ndegwa, the advocate for the Applicant, practicing as Muchemi & Co Advocates. The Advocate deponed that his firm received instructions from NCBA BANK KENYA PLC to prepare a Legal Charge in its favour to be secured by the property known as NAIROBI BLOCK 82/8759 (MAISONETTE NO.68) together with the improvements erected and being thereon.
5. That the said NAIROBI BLOCK 82/8759 (MAISONETTE NO.68) is registered in the name of the Applicant herein by a dint of a Certificate of Lease dated 1st October 2024 and registered at the Nairobi Lands Registration Unit on even date.
6. That following the Bank’s instructions, his firm commenced perfection of the Charge in favour of the Bank by initiating Charge Application reference number REG/CHAR/LOOVPE5LLS on the Ardhisasa platform, but that the firm inadvertently failed to initiate an application for registration of the charge over the property at companies registry within thirty (30) days from 11th October 2024 when the Charge was initiated over the Ardhisasa Platform.
7. That the lapse of the statutory period of 30 days has therefore made it necessary that this application be made for an order directed to the Registrar of Companies to register the First Charge in favour of NCBA BANK KENYA PLC. It was deponed that the application has been brought timeously and in good faith and that it is in the interest of justice that the same be allowed.
8. I have duly considered the above dispositions together with the documentary evidence attached thereto in support of the application by the Applicant, I do find that the failure to register the partial discharge and charge was not intentional and there is no evidence that the granting of the prayers sought will in any way prejudice the creditors or members of the Applicant Company.
9. Accordingly, I find that it is just and equitable to grant reliefs sought by the Applicant. I grant the following orders:-
i. An order is hereby granted extending the time for registration of the First Legal Charge dated 11th October 2024 in favour of NCBA BANK KENYA PLC over property known as NAIROBI BLOCK 82/8759(MAISONETTE NO.68) together with the improvements thereon with the Registrar of Companies for a further period of 30 days from the date of this order.
ii. Once the charge is so registered that charge shall be deemed to have been filed with the Registrar of Companies in compliance with the Companies Act 2015.
iii. There shall be no orders as to costs.
10. It so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS
26TH DAY OF NOVEMBER, 2024
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
…N/A………...for Applicant
……N./A……...for Respondent