RULING
1. The matter for determination is the exparte application dated 16th July 2025 filed by the Applicant. The application is supported by the affidavit sworn on even date by Eric N. Mugo , an Advocate of the High Court of Kenya, practicing in the firm of M/s Ashitiva Advocates LLP , which is on record for the Applicant.
Issues For Determination
2. The Court has carefully considered the application, the supporting affidavit, and the annexures thereto. Upon such consideration, the Court is of the view that only one issue arises for determination:
(a) Whether leave should be granted to the Applicant to register the Charge dated 23rd November 2023 at the Companies Registry out of time.
Analysis
3. Pursuant to Section 884 of the Companies Act, the Registrar of Companies is mandated to maintain a register of charges, register such charges, issue certificates of registration thereof, and authenticate the same with the Registrar’s Official Seal. Under Section 885 of the Act, the statutory timeline for registration of a charge is thirty (30) days from the date of its creation. In the event of non-compliance, Section 888(1) of the Companies Act empowers any interested party or the company itself to apply to the Court for an extension of the prescribed period for registration.
4. Further, when considering an extension under Section 888, the Court examines whether the delay was accidental or reasonably explained, whether it prejudiced creditors or members, whether granting the extension is just and fair, and whether the omission is rectifiable. This requirement that such a charge must be registered with the Registrar of Companies within thirty (30) days from the date of its creation is statutory and not discretionary. It is evident that the parties have complied with all the necessary legal requirements in the creation of the charge, save for the registration, which was delayed due to reasons sufficiently explained and which were beyond their control.
5. The Applicant’s Counsel deponed that they had received instructions from the Applicant to undertake the registration, in its favour, of a Charge to secure the sum of Kenya Shillings Thirteen Million One Hundred and Eighty-Eight Thousand Six Hundred and Sixty-Five (KES 13,188,665) (hereinafter “the Charge”). The Charge was made on 23rd November 2023 over all the Borrower’s receivables and credit rights, whether present or future.
6. Pursuant to those instructions, Counsel undertook all necessary due diligence in the preparation and registration of the Charge, in accordance with the Applicant’s directions. For purposes of stamp duty, the Charge over the assets was stamped in accordance with the provisions of Section 5 of the Stamp Duty Act and was duly franked as such by the Collector of Stamp Duty on 23rd November 2023. However, the Charge was not registered at the Companies Registry within the thirty (30) day statutory period prescribed under Section 885 of the Companies Act, 2015, owing to internal housekeeping issues between the Applicant and the Borrower. The consequences of the resulting delay could not reasonably have been foreseen. The failure to register the Charge at the Companies Registry was inadvertent and was not intentional on the part of either the Applicant or the Borrower.
7. In the present case, all steps necessary for the creation of the Charge were undertaken in compliance with the law, save for the registration, which was delayed for reasons now fully and sufficiently explained. The purpose of registering a charge is to safeguard the chargee’s and creditors’ interests. While failure to register can undermine the chargee’s rights, inadvertent procedural delays should not invalidate an otherwise valid charge, in line with Article 159 of the Constitution and the Companies Act, which promote substantive justice over technicalities.
8. In view of the foregoing, it would be just, fair, and equitable that the omission should not be visited upon the Chargee, who stand to suffer substantial prejudice if the Charge is not protected seeing it is one that is capable of being remedied through the grant of an extension of time to enable the registration at the Companies Registry in accordance with the provisions of the Companies Act. Accordingly, the prayers sought in the Application dated 16th July 2025 are hereby granted.
Determination
9. The time within which to register the Charge dated 23rd November 2023, executed between Pelacca Brands Limited (the “Borrower”) and Domitila Mbatha Mutuku (the “Chargor”) in favour of Kua Ventures Limited (the “Lender”), over Title Numbers: IVETI/MUNGALA/2332; KAJIADO/KAPUTEI NORTH/74231; and MACHAKOS/NGULUNI/7035 (the “Charged Properties”), with the Registrar of Companies, is hereby extended by a further period of thirty (30) days from the date of this Ruling.
10. It is further ordered that upon registration of the said charge within the extended period, the charge shall be deemed to have been duly filed with the Registrar of Companies in full compliance with the Companies Act, 2015.
11. Given the nature of the application, there shall be no order as to costs.
12. It is so ordered.
13. The file is hereby closed.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 7TH DAY OF AUGUST 2025.
NJOROGE BENJAMIN K.
JUDGE
In the presence of;
N/A for the Applicant.
Susan Nzioka - Court Assistant
1. The matter for determination is the exparte application dated 16th July 2025 filed by the Applicant. The application is supported by the affidavit sworn on even date by Eric N. Mugo , an Advocate of the High Court of Kenya, practicing in the firm of M/s Ashitiva Advocates LLP , which is on record for the Applicant.
Issues For Determination
2. The Court has carefully considered the application, the supporting affidavit, and the annexures thereto. Upon such consideration, the Court is of the view that only one issue arises for determination:
(a) Whether leave should be granted to the Applicant to register the Charge dated 23rd November 2023 at the Companies Registry out of time.
Analysis
3. Pursuant to Section 884 of the Companies Act, the Registrar of Companies is mandated to maintain a register of charges, register such charges, issue certificates of registration thereof, and authenticate the same with the Registrar’s Official Seal. Under Section 885 of the Act, the statutory timeline for registration of a charge is thirty (30) days from the date of its creation. In the event of non-compliance, Section 888(1) of the Companies Act empowers any interested party or the company itself to apply to the Court for an extension of the prescribed period for registration.
4. Further, when considering an extension under Section 888, the Court examines whether the delay was accidental or reasonably explained, whether it prejudiced creditors or members, whether granting the extension is just and fair, and whether the omission is rectifiable. This requirement that such a charge must be registered with the Registrar of Companies within thirty (30) days from the date of its creation is statutory and not discretionary. It is evident that the parties have complied with all the necessary legal requirements in the creation of the charge, save for the registration, which was delayed due to reasons sufficiently explained and which were beyond their control.
5. The Applicant’s Counsel deponed that they had received instructions from the Applicant to undertake the registration, in its favour, of a Charge to secure the sum of Kenya Shillings Thirteen Million One Hundred and Eighty-Eight Thousand Six Hundred and Sixty-Five (KES 13,188,665) (hereinafter “the Charge”). The Charge was made on 23rd November 2023 over all the Borrower’s receivables and credit rights, whether present or future.
6. Pursuant to those instructions, Counsel undertook all necessary due diligence in the preparation and registration of the Charge, in accordance with the Applicant’s directions. For purposes of stamp duty, the Charge over the assets was stamped in accordance with the provisions of Section 5 of the Stamp Duty Act and was duly franked as such by the Collector of Stamp Duty on 23rd November 2023. However, the Charge was not registered at the Companies Registry within the thirty (30) day statutory period prescribed under Section 885 of the Companies Act, 2015, owing to internal housekeeping issues between the Applicant and the Borrower. The consequences of the resulting delay could not reasonably have been foreseen. The failure to register the Charge at the Companies Registry was inadvertent and was not intentional on the part of either the Applicant or the Borrower.
7. In the present case, all steps necessary for the creation of the Charge were undertaken in compliance with the law, save for the registration, which was delayed for reasons now fully and sufficiently explained. The purpose of registering a charge is to safeguard the chargee’s and creditors’ interests. While failure to register can undermine the chargee’s rights, inadvertent procedural delays should not invalidate an otherwise valid charge, in line with Article 159 of the Constitution and the Companies Act, which promote substantive justice over technicalities.
8. In view of the foregoing, it would be just, fair, and equitable that the omission should not be visited upon the Chargee, who stand to suffer substantial prejudice if the Charge is not protected seeing it is one that is capable of being remedied through the grant of an extension of time to enable the registration at the Companies Registry in accordance with the provisions of the Companies Act. Accordingly, the prayers sought in the Application dated 16th July 2025 are hereby granted.
Determination
9. The time within which to register the Charge dated 23rd November 2023, executed between Pelacca Brands Limited (the “Borrower”) and Domitila Mbatha Mutuku (the “Chargor”) in favour of Kua Ventures Limited (the “Lender”), over Title Numbers: IVETI/MUNGALA/2332; KAJIADO/KAPUTEI NORTH/74231; and MACHAKOS/NGULUNI/7035 (the “Charged Properties”), with the Registrar of Companies, is hereby extended by a further period of thirty (30) days from the date of this Ruling.
10. It is further ordered that upon registration of the said charge within the extended period, the charge shall be deemed to have been duly filed with the Registrar of Companies in full compliance with the Companies Act, 2015.
11. Given the nature of the application, there shall be no order as to costs.
12. It is so ordered.
13. The file is hereby closed.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 7TH DAY OF AUGUST 2025.
NJOROGE BENJAMIN K.
JUDGE
In the presence of;
N/A for the Applicant.
Susan Nzioka - Court Assistant