1. By an ex-parte Notice of Motion dated 21st July 2025, brought under, among others, Sections 885 and 888(1) & (2) of the Companies Act, 2015 of the Laws of Keya DIAMOND TRUST BANK KENYA LIMITED, hereinafter the Applicant, seeks among others, the following orders: -
“THAT the time for registration of the Legal Charge dated 27 May 2025 at the Companies Registry be extended by a further period of 30 days.”
2. The application is based on the grounds enumerated on the face of the application, and is supported by the affidavit of JANJO DAVID GIDEONS, an Advocate at the law firm of Messrs. Madhani Advocates LLP.
3. I have carefully perused and considered the application and note that the substratum of the application is the prayer for extension of time for registration of the subject securities created by PAT & SONS HOLDINGS LIMITED, in favour of DIAMOND TRUST BANK KENYA LIMITED, the Applicant herein.
4. 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.”
5. Mr. JANJO DAVID GIDEONS, in his affidavit in support of the application, depones that the subject property, being Title Number MBEERE/WACHORO/1373, has been charged to DIAMOND TRUST BANK KENYA LIMITED ("the Applicant') to secure a loan for the sum of Kenya Shillings Thirty-Three Million (Kshs. 33,000,000/-) only.
6. The Counsel further deponed that they are the Applicant’s advocates on record and prepared a Legal Charge dated 27 May 2025 over the subject property which was executed by all parties after which the stamp duty was paid on 05 June 2025.
7. That according to section 885 of the Companies Act No. 17 of 2015, the Bank was supposed to register the Charge with the Companies’ Registry within 30 days from the date of issue, that is by 05 July 2025.
8. However, the charge was not registered punctually at the Company’s registry by 05 July 2025 as we received the necessary funds to facilitate the same from the Chargor after the 30 days expired.
9. That owing to the lapse of time, the Bank is unable to register the Charge at the Company’s Registry. That the said delay was not willful but caused by circumstances beyond the control of the Bank, hence the instant application.
10. Having duly considered the dispositions in the affidavit in support of the application 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 effect registration at the Company Registry of the legal charge over the property in question within the timelines authorized in law was not intentional, that the delay has been fully and satisfactorily explained.
11. Further, this Court finds no evidence that the granting of the prayers sought will in any way prejudice the creditors or members of the Applicant Company.
12. Accordingly, I find that it is just and equitable to grant the relief sought by the Applicant. I grant the following orders:
i. That the time for registration of the Legal Charge dated 27 May 2025 over Title Number MBEERE/WACHORO/1373, in favour of DIAMOND TRUST BANK KENYA LIMITED at the Companies Registry, be extended by thirty (30) days from the date hereof.
ii. There shall be no orders as to costs.
13. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
23RD JULY 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
…N/A………...for Applicant
……N./A……...for Responden t
“THAT the time for registration of the Legal Charge dated 27 May 2025 at the Companies Registry be extended by a further period of 30 days.”
2. The application is based on the grounds enumerated on the face of the application, and is supported by the affidavit of JANJO DAVID GIDEONS, an Advocate at the law firm of Messrs. Madhani Advocates LLP.
3. I have carefully perused and considered the application and note that the substratum of the application is the prayer for extension of time for registration of the subject securities created by PAT & SONS HOLDINGS LIMITED, in favour of DIAMOND TRUST BANK KENYA LIMITED, the Applicant herein.
4. 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.”
5. Mr. JANJO DAVID GIDEONS, in his affidavit in support of the application, depones that the subject property, being Title Number MBEERE/WACHORO/1373, has been charged to DIAMOND TRUST BANK KENYA LIMITED ("the Applicant') to secure a loan for the sum of Kenya Shillings Thirty-Three Million (Kshs. 33,000,000/-) only.
6. The Counsel further deponed that they are the Applicant’s advocates on record and prepared a Legal Charge dated 27 May 2025 over the subject property which was executed by all parties after which the stamp duty was paid on 05 June 2025.
7. That according to section 885 of the Companies Act No. 17 of 2015, the Bank was supposed to register the Charge with the Companies’ Registry within 30 days from the date of issue, that is by 05 July 2025.
8. However, the charge was not registered punctually at the Company’s registry by 05 July 2025 as we received the necessary funds to facilitate the same from the Chargor after the 30 days expired.
9. That owing to the lapse of time, the Bank is unable to register the Charge at the Company’s Registry. That the said delay was not willful but caused by circumstances beyond the control of the Bank, hence the instant application.
10. Having duly considered the dispositions in the affidavit in support of the application 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 effect registration at the Company Registry of the legal charge over the property in question within the timelines authorized in law was not intentional, that the delay has been fully and satisfactorily explained.
11. Further, this Court finds no evidence that the granting of the prayers sought will in any way prejudice the creditors or members of the Applicant Company.
12. Accordingly, I find that it is just and equitable to grant the relief sought by the Applicant. I grant the following orders:
i. That the time for registration of the Legal Charge dated 27 May 2025 over Title Number MBEERE/WACHORO/1373, in favour of DIAMOND TRUST BANK KENYA LIMITED at the Companies Registry, be extended by thirty (30) days from the date hereof.
ii. There shall be no orders as to costs.
13. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
23RD JULY 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
…N/A………...for Applicant
……N./A……...for Responden t