https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11683

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI COMMERCIAL AND TAX DIVISION** **MISCELLANEOUS APPLICATION NO. E845 OF 2026** **IN THE MATTER OF SECTIONS 878, 884, 885, 888 AND 889 OF THE COMPANIES ACT, 2015** **AND** **IN THE MATTER OF AN APPLICATION FOR EXTENSION OF TIME FOR REGISTRATION OF A CHARGE OVER LAND REFERENCE NUMBER 12833/5 (I.R. 43066)** **AND** **IN THE MATTER OF A CHARGE DATED 15 JUNE, 2026 CREATED BY TEXPLAST INDUSTRIES LIMITED IN FAVOUR OF NORFUND** **BETWEEN** **TEXPLAST INDUSTRIES LIMITED …………….1ST EX PARTE APPLICANT NORFUND ……..…………………………….2ND EX PARTE APPLICANT** **RULING** 1. This Ruling is in respect to the Applicants' Notice of Motion *(Ex Parte)* dated 23rd July, 2026, brought under **Article 159(2)(d) of the Constitution of Kenya**; **Sections 878, 884, 885, 888** and **889 of the Companies Act, 2015**; **Section 3A of the Civil Procedure Act**; **Rule 8(b) of the Companies (High Court) Rules**; and **Order 51 rule 1 of the Civil Procedure Rules**. The Motion seeks the following orders: 1. *This application be certified urgent and be heard ex parte in the first instance.* 2. *Pursuant to section 888 of the Companies Act, 2015, the time for delivery to the Registrar of Companies of the prescribed particulars of the Charge dated 15 June, 2026, created by Texplast Industries Limited in favour of Norfund over Land Reference Number 12833/5 (I.R. 43066), be extended for thirty (30) days from the date of the Order or for such other period as the Court may deem fit.* 3. *Upon due lodgment within the extended period of the prescribed particulars and forms and payment of the requisite fees, the Registrar of Companies be directed to accept and register the particulars of the Charge as if they had been delivered within the period prescribed by section 885 of the Companies Act, 2015, and to issue the appropriate certificate of registration.* 4. *There be no order as to costs.* 5. *The Court grant such further or other orders as it considers just and expedient in the circumstances.* 2. The Application is supported by the affidavit of **Njeri Wagacha**, an Advocate of the High Court of Kenya practicing with the firm of **Kieti Law LLP**, who has conduct of the transaction on behalf of the Applicants and is competent to swear the affidavit. **Issues for Determination** 3. Upon consideration of the Application, the supporting affidavit, and the legal provisions relied upon, the sole issue that arises for determination is: a*) Whether leave should be granted to register the Charge dated 15th June, 2026 over Land Reference Number 12833/5 (I.R. 43066) at the Companies Registry out of time.* **Analysis** 4. 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. 5. 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. 6. 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. 7. Counsel for the Applicants has explained that delays were occasioned by the sequential assessment and reassessment of stamp duty. This because the initial assessment failed to account for the Charge being supplemental to a Debenture under ***Section 48(3) of the Stamp Duty Act.*** Additionally, the process was further delayed by administrative challenges in retrieving the 2nd Applicant's Ardhisasa portal credentials from its former advocates. As a result, the Charge was lodged for stamping on 15th July, 2026. Thus, rendering it impossible to deliver the prescribed particulars to the Registrar of Companies before the statutory period expired on 14th July, 2026. 8. There is no evidence to suggest that the delay has prejudiced the creditors, members, or any third parties. The Applicants' concern is, in fact, the potential risk of the Charge being rendered void against a liquidator, administrator, or creditor if it is not perfected, which would severely prejudice the underlying commercial transaction and the 1st Applicant's financing. 9. 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. 10. In view of the foregoing, it would be just, fair, and equitable that the omission should not be visited upon the Applicants. They stand to suffer substantial prejudice if the Charge is not protected. This is more so seeing it is one that is capable of being remedied through the grant of an extension of time. This is to enable the registration at the Companies Registry in accordance with the provisions of the Companies Act. Accordingly, the prayers sought in the Notice of Motion dated 23rd July, 2026 are hereby granted. **Determination** 11. The Exparte Applicants’ application by way of a Notice of Motion is allowed as follows: *(1.)* *This application is HEREBY certified urgent and is HEREBY heard exparte in the first instance.* *(2.) Pursuant to* ***Section 888 of the Companies Act, 2015****, the time for delivery to the Registrar of Companies of the prescribed particulars of the Charge dated 15th June, 2026, created by* ***Texplast Industries Limited*** *in favour of* ***Norfund*** *over Land Reference Number 12833/5 (I.R. 43066), is HEREBY extended for thirty (30) days from the date of the Order.* *(3.) Upon due lodgement within the extended period of the prescribed particulars and forms and payment of the requisite fees, the Registrar of Companies is HEREBY directed to accept and register the particulars of the Charge as if they had been delivered within the period prescribed by* ***Section 885 of the Companies Act, 2015****, and to issue the appropriate certificate of registration.* *(4.) There be no order as to costs.* 12. It is so ordered. 13. The file is HEREBY marked as closed. **DATED, SIGNED AND DELIVERED AT MILIMANI THIS 24TH DAY OF JULY, 2026** **NJOROGE BENJAMIN K.** **JUDGE**