1. By an ex parte application dated 14th May 2025, brought under sections 878(4) (a), 884, 885 and 888 of the Companies Act 2015, CONSOLIDATED BANK LIMITED, hereinafter the applicant seeks extension of time for thirty (30) days to allow for the registration of Charge dated 11th December 2024 in favour of the applicant.
2. The application is stated to be based on the reasons outlined in the supporting affidavit of Jackie Kwambukha Ochieng, date 14th 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 I.R. No. 209/1265, to secure a sum of Kshs. 50,000,000/-.
4. I have also established from the evidence availed by the ex-parte Applicant that whereas the Charge Instrument was created and registered on 11th December 2024, the Certificate of Registration of Mortgage dated and issued on 6th February 2025, has the date of registration of the charge as 6th February 2025 as opposed to the correct date of 11th December 2024.
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:
9. The period of registration of the Charge dated 11th December 2024 created by Mathithu Investments Limited in favour of Consolidated Bank Limited over Charge over Title No I.R. No. 209/1265, to secure a loan facility of Kshs. 50,000,000.00 from the bank is hereby extended for a period of thirty (30) days from the date hereof.
i. 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.
ii. The Certificate of Registration of a Mortgage issued and registered by the Registrar of Companies dated 6th February 2025 is hereby cancelled.
iii. The Registrar of Companies is hereby directed to register and issue another Certificate of Registration of Mortgage with an accurate date of registration of the charge instrument dated 11th December 2024
iv. There shall be no orders as to costs.
v. This file is closed.
10. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
15TH DAY OF MAY, 2025
ADO MOSES
JUDGE