1. By an ex parte application dated 20th May 2025, brought under section 888 of the Companies Act 2015, I&M BANK LIMITED, hereinafter the applicant, seeks extension of time for thirty (30) days to allow for the registration of the Charge dated 15th February 2023 in its favour.
2. The application is based on the reasons outlined in the supporting affidavit of CORNELIUS KIMAMO KIGERA, dated 20th May 2025.
3. I have carefully reviewed and considered the application and note that the charge in question is a Legal Charge over Title No NAIROBI/BLOCKK6/229, by the General Mathenge Atrium Limited (the Respondent) in favour of the Applicant herein to secure a sum of Kshs. 7000,000,000/-.
4. I have established from the evidence availed by the ex-parte Applicant that whereas the Charge Instrument was created and registered at the Lands Registry on 20th March 2023, the same is yet to be registered at the Companies Registry due to what the Appellant alleges to be “operational and procedural changes at the Lands Registry in Nairobi brought about by the “Ardhisasa” registration formalities.
5. 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.”
6. 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”.
7. 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 granting of the prayers sought will in any way prejudice the creditors or members of the Applicant Company.
8. 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 of registration of the Charge dated 15th February 2023 created by General Mathenge Atrium Limited in favour of I&M Bank Limited over Charge over Title No NAIROBI/BLOCKK6/229, to secure a loan facility of Kshs. 700,000,000.00 from the bank is hereby extended for a period of thirty (30) days from the date hereof.
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.
9. This file is closed.
10. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
22ND DAY OF MAY, 2025
ADO MOSES
JUDGE