Introduction
1. The Applicants, Oikocredit Ecumenical Development Cooperative Society U.A and Ropat Trust Company Limited, have moved this Court by way of a Notice of Motion dated 1 July 2026 under Sections 878, 884, 885, 888 and 889 of the Companies Act, 2015 seeking extension of time for registration of a Deed of Variation dated 8 April 2026 to a Charge dated 9 October 2024 created by Burn Manufacturing USA LLC in favour of Ropat Trust Company Limited as Security Agent.
2. The application is supported by the affidavit of Melisa Wekesa, Advocate, sworn on 1 July 2026 together with the annexures thereto.
3. The background of the matter is that Oikocredit, Ecumenical Development Cooperative Society U.A., advanced financial accommodation to Burn Manufacturing USA LLC. To secure the facility, Burn Manufacturing USA LLC executed a Charge dated 9 October 2024 in favour of Ropat Trust Company Limited, as Security Agent. The Charge was duly registered under the Companies Act within the prescribed statutory period.
4. On 8 April 2026, the chargor and the Security Agent executed a Deed of Variation for the purpose of varying the original Charge by, inter alia, expanding the secured assets and introducing additional security arrangements. The Applicants maintain that the Deed did not replace the original Charge but supplemented it.
5. Following execution of the Deed, the Applicants presented the Deed of Variation together with Form CR 25 to the Business Registration Service on 22 April 2026 for registration. According to the Applicants, the Registrar declined to register the instrument on the basis that once the original Charge had been registered, no further security instrument could be registered against it, the register having been exhausted.
6. The Applicants challenged that interpretation by the Registrar through correspondence, but the Registrar maintained that position. There is, however, no evidence that the matter has been resolved.
7. By the time those engagements concluded, the statutory period prescribed for registration had expired. The Applicants contend that unless time is enlarged, the additional security created or confirmed by the Deed of Variation may be rendered ineffective against a liquidator, administrator or other creditors, thereby prejudicing the parties' commercial bargain.
8. The Applicants pray for orders:
i. extending time under section 886 of the Companies Act for registration of the Deed of Variation dated 8 April 2026;
ii. directing the Registrar of Companies to register the Deed of Variation together with Form CR 25 notwithstanding expiry of the statutory period;
iii. directing the Registrar to make the necessary entries in the Register of Charges; and
iv. costs in the cause.
Analysis and Determination
9. Having carefully perused the application, I find that the sole issue for determination is whether the Applicants have established sufficient grounds for enlargement of time under section 886 of the Companies Act.
10. Section 885 of the Act requires registration of a charge or variation within thirty days. Section 888 empowers the Court to extend time for registration where it is satisfied that the failure was due to inadvertence or other sufficient cause.
11. Section 885 requires particulars of a registrable charge to be delivered to the Registrar within the prescribed period. Registration serves an important public function by ensuring that persons dealing with a company have notice of encumbrances affecting its assets.
12. The jurisdiction conferred by section 888(1)(b) is discretionary. It is intended to relieve against the consequences of non-compliance with the statutory timeline where justice so demands. The discretion must nevertheless be exercised judicially upon consideration of the explanation for the delay, the conduct of the parties and the likelihood of prejudice to third parties.
13. In re ABSA Bank Kenya PLC (Miscellaneous Cause E024 of 2026) [2026] KEHC 148 (KLR), the Court emphasized that the discretion to enlarge time is well-recognized where sufficient cause is shown.
14. Similarly, in Bank of Baroda Kenya Ltd v Registrar of Companies [2025] eKLR. the Court held that where a charge has been duly executed, stamped, and registered at the Lands Registry, the subsequent failure to lodge it with the Registrar of Companies within the 30-day window is a procedural omission that is clearly rectifiable.
15. In the present case, evidence before the Court demonstrates that the original Charge was duly registered. Thereafter, the parties executed the Deed of Variation and presented it for registration together with Form CR 25. The Applicants have exhibited correspondence showing that the Registrar declined registration, not because the documents had not been presented within time, but because of the Registrar's interpretation of the Companies Act concerning the registrability of the Deed of Variation.
16. The Applicants thereafter engaged the Registrar seeking reconsideration of that position. Those engagements continued until after expiry of the statutory period. In the circumstances, the delay cannot fairly be attributed to indolence or disregard of the statutory requirements. Rather, it resulted from a bona fide dispute concerning the Registrar's interpretation of the Companies Act.
17. There is likewise no evidence before the Court that enlargement of time would occasion prejudice to any third party. The original Charge remains registered. The present application concerns only the time within which the Deed of Variation may be presented for registration.
18. It is, however, necessary to define the limits of the jurisdiction presently invoked. Section 888 confers jurisdiction upon the Court to enlarge the statutory period for registration where sufficient cause has been shown. It does not confer jurisdiction upon the Court to determine whether a particular instrument is, as a matter of substantive law, registrable under the Companies Act. Neither does it authorize the Court, in an application of this nature, to substitute its interpretation of the Companies Act for that adopted by the Registrar in the discharge of the Registrar's statutory mandate.
19. The Applicants have explained that the Registrar declined registration on the basis that, following registration of the original Charge, the Deed of Variation could not thereafter be registered. Whether that interpretation is correct, and whether the Deed of Variation satisfies the substantive requirements for registration under the Companies Act, are not questions that fall for determination in the present application.
20. Those issues remain within the statutory province of the Registrar and, if necessary, may be challenged through appropriate proceedings. It would therefore be inappropriate for this Court to pronounce itself upon the correctness or otherwise of the Registrar's interpretation of the Act in these proceedings.
21. The only question now properly before the Court is whether sufficient cause has been shown to warrant extension of the statutory period prescribed by section 885.
22. Having considered the affidavit evidence and the documents exhibited, I am satisfied that the Applicants have demonstrated sufficient cause warranting extension of time within the meaning of section 888.
23. Accordingly, the Notice of Motion dated 1 July 2026 succeeds in the following terms:
i. Pursuant to section 886 of the Companies Act, 2015, time is hereby extended for the presentation of the Deed of Variation dated 8 April 2026 relating to the Charge dated 9 October 2024 for registration.
ii. For the avoidance of doubt, this order is limited solely to enlarging the statutory period prescribed for registration, and shall not vary, review or substitute the Registrar's interpretation of the Companies Act (on substantive issues) regarding the registrability of the instrument.
iii. The question whether the Deed of Variation satisfies the substantive requirements for registration under the Companies Act shall remain for determination by the Registrar of Companies in accordance with the law, subject to such rights of review or challenge as may be available.
24. There shall be no order as to costs.
25. It is so ordered
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 7TH DAY OF JULY 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
.………………for the Applicant
……………for the Respondent
1. The Applicants, Oikocredit Ecumenical Development Cooperative Society U.A and Ropat Trust Company Limited, have moved this Court by way of a Notice of Motion dated 1 July 2026 under Sections 878, 884, 885, 888 and 889 of the Companies Act, 2015 seeking extension of time for registration of a Deed of Variation dated 8 April 2026 to a Charge dated 9 October 2024 created by Burn Manufacturing USA LLC in favour of Ropat Trust Company Limited as Security Agent.
2. The application is supported by the affidavit of Melisa Wekesa, Advocate, sworn on 1 July 2026 together with the annexures thereto.
3. The background of the matter is that Oikocredit, Ecumenical Development Cooperative Society U.A., advanced financial accommodation to Burn Manufacturing USA LLC. To secure the facility, Burn Manufacturing USA LLC executed a Charge dated 9 October 2024 in favour of Ropat Trust Company Limited, as Security Agent. The Charge was duly registered under the Companies Act within the prescribed statutory period.
4. On 8 April 2026, the chargor and the Security Agent executed a Deed of Variation for the purpose of varying the original Charge by, inter alia, expanding the secured assets and introducing additional security arrangements. The Applicants maintain that the Deed did not replace the original Charge but supplemented it.
5. Following execution of the Deed, the Applicants presented the Deed of Variation together with Form CR 25 to the Business Registration Service on 22 April 2026 for registration. According to the Applicants, the Registrar declined to register the instrument on the basis that once the original Charge had been registered, no further security instrument could be registered against it, the register having been exhausted.
6. The Applicants challenged that interpretation by the Registrar through correspondence, but the Registrar maintained that position. There is, however, no evidence that the matter has been resolved.
7. By the time those engagements concluded, the statutory period prescribed for registration had expired. The Applicants contend that unless time is enlarged, the additional security created or confirmed by the Deed of Variation may be rendered ineffective against a liquidator, administrator or other creditors, thereby prejudicing the parties' commercial bargain.
8. The Applicants pray for orders:
i. extending time under section 886 of the Companies Act for registration of the Deed of Variation dated 8 April 2026;
ii. directing the Registrar of Companies to register the Deed of Variation together with Form CR 25 notwithstanding expiry of the statutory period;
iii. directing the Registrar to make the necessary entries in the Register of Charges; and
iv. costs in the cause.
Analysis and Determination
9. Having carefully perused the application, I find that the sole issue for determination is whether the Applicants have established sufficient grounds for enlargement of time under section 886 of the Companies Act.
10. Section 885 of the Act requires registration of a charge or variation within thirty days. Section 888 empowers the Court to extend time for registration where it is satisfied that the failure was due to inadvertence or other sufficient cause.
11. Section 885 requires particulars of a registrable charge to be delivered to the Registrar within the prescribed period. Registration serves an important public function by ensuring that persons dealing with a company have notice of encumbrances affecting its assets.
12. The jurisdiction conferred by section 888(1)(b) is discretionary. It is intended to relieve against the consequences of non-compliance with the statutory timeline where justice so demands. The discretion must nevertheless be exercised judicially upon consideration of the explanation for the delay, the conduct of the parties and the likelihood of prejudice to third parties.
13. In re ABSA Bank Kenya PLC (Miscellaneous Cause E024 of 2026) [2026] KEHC 148 (KLR), the Court emphasized that the discretion to enlarge time is well-recognized where sufficient cause is shown.
14. Similarly, in Bank of Baroda Kenya Ltd v Registrar of Companies [2025] eKLR. the Court held that where a charge has been duly executed, stamped, and registered at the Lands Registry, the subsequent failure to lodge it with the Registrar of Companies within the 30-day window is a procedural omission that is clearly rectifiable.
15. In the present case, evidence before the Court demonstrates that the original Charge was duly registered. Thereafter, the parties executed the Deed of Variation and presented it for registration together with Form CR 25. The Applicants have exhibited correspondence showing that the Registrar declined registration, not because the documents had not been presented within time, but because of the Registrar's interpretation of the Companies Act concerning the registrability of the Deed of Variation.
16. The Applicants thereafter engaged the Registrar seeking reconsideration of that position. Those engagements continued until after expiry of the statutory period. In the circumstances, the delay cannot fairly be attributed to indolence or disregard of the statutory requirements. Rather, it resulted from a bona fide dispute concerning the Registrar's interpretation of the Companies Act.
17. There is likewise no evidence before the Court that enlargement of time would occasion prejudice to any third party. The original Charge remains registered. The present application concerns only the time within which the Deed of Variation may be presented for registration.
18. It is, however, necessary to define the limits of the jurisdiction presently invoked. Section 888 confers jurisdiction upon the Court to enlarge the statutory period for registration where sufficient cause has been shown. It does not confer jurisdiction upon the Court to determine whether a particular instrument is, as a matter of substantive law, registrable under the Companies Act. Neither does it authorize the Court, in an application of this nature, to substitute its interpretation of the Companies Act for that adopted by the Registrar in the discharge of the Registrar's statutory mandate.
19. The Applicants have explained that the Registrar declined registration on the basis that, following registration of the original Charge, the Deed of Variation could not thereafter be registered. Whether that interpretation is correct, and whether the Deed of Variation satisfies the substantive requirements for registration under the Companies Act, are not questions that fall for determination in the present application.
20. Those issues remain within the statutory province of the Registrar and, if necessary, may be challenged through appropriate proceedings. It would therefore be inappropriate for this Court to pronounce itself upon the correctness or otherwise of the Registrar's interpretation of the Act in these proceedings.
21. The only question now properly before the Court is whether sufficient cause has been shown to warrant extension of the statutory period prescribed by section 885.
22. Having considered the affidavit evidence and the documents exhibited, I am satisfied that the Applicants have demonstrated sufficient cause warranting extension of time within the meaning of section 888.
23. Accordingly, the Notice of Motion dated 1 July 2026 succeeds in the following terms:
i. Pursuant to section 886 of the Companies Act, 2015, time is hereby extended for the presentation of the Deed of Variation dated 8 April 2026 relating to the Charge dated 9 October 2024 for registration.
ii. For the avoidance of doubt, this order is limited solely to enlarging the statutory period prescribed for registration, and shall not vary, review or substitute the Registrar's interpretation of the Companies Act (on substantive issues) regarding the registrability of the instrument.
iii. The question whether the Deed of Variation satisfies the substantive requirements for registration under the Companies Act shall remain for determination by the Registrar of Companies in accordance with the law, subject to such rights of review or challenge as may be available.
24. There shall be no order as to costs.
25. It is so ordered
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 7TH DAY OF JULY 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
.………………for the Applicant
……………for the Respondent