1. By an ex parte application dated 16th April 2025, brought under sections 878, 884, 885(1) & (2) and 889 (3) of the Companies Act 2015, seeking the orders that:
i. This Honourable Court be pleased to extend time for registration of a charge, for a further period of thirty (30) days, to allow for the registration of the Charge dated the 15th June 2021 by Messrs. Switchgear Limited, over Title number I.R. 224062/3 known as Land Reference Number 209/22532 Nairobi in favour of Societe De Finance Limited (the Lender).
ii. This Honourable Court be pleased to issue Orders that the Charge dated the 15th day of June 2021 by Messrs. Switchgear Limited, the Applicant, in favour of Societe De Finance Limited, the Lender, over Title number I.R. Number 224062/3, known as Land Reference Number 209/22532, Nairobi, be deemed properly registered pursuant to the requirements of the Companies Act 2015 of Kenya and Sections 878,884,885,888 and 889 of the Companies Act in particular.
2. The application is based on the reasons outlined in the affidavit of AHMED SHARMARKAY ABDIRAHMAN, dated 15 April 2025, sworn in support of the application.
3. I have carefully reviewed the application and note that a copy of the said Charge is annexed to the affidavit of AHMED SHARMARKAY ABDIRAHMAN as annexture “AS-1” and was in respect of the Land Reference No. 209/22532 (Title No I.R. 224062) IROBI/BLOCK58/276, to secure a loan facility.
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. 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”.
6. 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 failure to register the Charge was not intentional and there is no evidence that the granting of the prayers sought will in any way prejudice the creditors or members of the Applicant Company.
7. 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 for the registration of the Charge dated the 15th June 2021 by Messrs. Switchgear Limited, over Title number I.R. 224062/3 known as Land Reference Number 209/22532 Nairobi in favour of Societe De Finance Limited (the Lender) 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.
iv. This file is closed.
8. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
23RD DAY OF APRIL, 2025
ADO MOSES
JUDGE