1. By an ex parte application dated 17th March 2025, brought under sections 878, 885, 888 and 889 of the Companies Act 2015 and Section 3A of the Civil Procedure Act, CAMINORUIZ AGENCIES LIMITED, hereinafter the applicant seeks extension of time for thirty (30) days to allow for the registration of the Specific Debenture dated 15th August 2024 in favour of the applicant.
2. The application is based on the grounds on the face of the application and is further supported by the affidavit sworn on even date by Joseph Muriithi Kanyita, a director of the applicant company.
3. In his affidavit in support of the application, Mr. Muriithi deponed that the Specific Debenture dated 15th August 2024 is a legal charge over the assets described in the Schedule of Assets to be Charged (Clause 4a) of the Specific Debenture, to secure part of a Finance Facility in the sum of USD 1,000,000 (approximately Kshs. 128,000,000.00) extended by the Lender to the Applicant herein.
4. That through a Letter of Offer dated 23rd July 2024 the Applicant granted the Company a Finance Facility of USD 1,000,000 (approximately Kshs. 128,000,000.00); and the facility was secured by various securities, including a Specific Debenture dated 15th August 2024, creating a charge over the Applicant's assets as described in the Specific Debenture.
5. Mr. Muriithi further deponed that the Applicant received the debenture documents in August 2024 and promptly instructed its then advocates to initiate the process of obtaining a stamp duty exemption. However, due to the time taken to complete the stamp duty exemption process, the mandatory 30-day registration period prescribed under section 885 of the Companies Act lapsed before the Debenture could be lodged for registration at the Companies Registry.
6. That it is this delay that has occasioned the instant application. The Applicant depones that the delay in presenting the Specific Debenture at the Companies Registry is therefore unintentional on the part of the Applicant, and is in fact beyond its control.
7. In the premises, the Applicant prays that the application be allowed and the time be extended to enable the registration of the Specific Debenture at the Companies Registry. That allowing the application is not likely to occasion any prejudice to the creditors or shareholders of the Applicant Company.
8. 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.”
9. In Philip Chemwolo & another vs Augustine Kubede (1982-88) KLR 103 the court stated:
“Blunders will continue to be made from time to time and it does not follow that because a mistake has been made, that a party should suffer the penalty of not having his case heard on merit”.
10. I have duly considered the dispositions together with the documentary evidence attached thereto in support of the application by the Applicant together with the applicable legal provisions and case law, I do find that the failure to register the Denture 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.
11. Accordingly, I find that it is just and equitable to grant the relief sought by the Applicant. I grant the following orders:
i. The period for registration of the Specific Debenture dated 15th August 2024 in favour of the applicant herein is extended for a period of thirty (30) days from 03.04.2025
ii. Once the Debenture 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.
12. It is so ordered.
SIGNED, DATED and DELIVERED IN VIRTUAL COURT THIS
3RD DAY OF APRIL, 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Ms. Matara………...for Applicant
Ms. Kiura…….........for Respondent