[2018] KEHC 844 (KLR)
The court found that the applicant had made diligent efforts to trace the chargee company, which had ceased operations and had not filed returns since 1994. Given the impossibility of obtaining a discharge from the defunct company, and to prevent prejudice to the applicant, the court exercised its jurisdiction to...
Source-derived case information.
- Citation
- [2018] KEHC 844 (KLR)
- Parties
- Applicant: Tabitha Munyao Munuku; Respondent: Kenya Flour Mills (1975) Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 393 of 2018
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- application allowed
- Judges
- MM Kasango
- Legal Topics
- Discharge of Charge, Land Registration, Company Dissolution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tabitha Munyao Munuku
Applicant
Kenya Flour Mills (1975) Limited
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the court should order the discharge of a charge registered against the applicant's property when the chargee company has ceased to operate and cannot be traced.
Ratio Decidendi
The court found that the applicant had made diligent efforts to trace the chargee company, which had ceased operations and had not filed returns since 1994. Given the impossibility of obtaining a discharge from the defunct company, and to prevent prejudice to the applicant, the court exercised its jurisdiction to order the discharge of the charge registered against the applicant's property. The court further directed the Deputy Registrar to execute the necessary discharge instruments on behalf of the untraceable chargee company, ensuring the applicant could freely deal with the property. No order as to costs was made.
Court Disposition
application allowed
Orders
- The charge registered on 11.09.1984 as entry No. 2 against the Certificate of Lease/Title in respect of Land Reference No. 209/8552/535 is hereby discharged.
- The Deputy Registrar of the Court is authorized to execute the Instruments of Discharge on behalf of Kenya Flour Mills (1975) Limited.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL & TAX DIVISION
MISC. APPLICATION NO. 393 OF 2018
IN THE MATTER OF AN APPLICATION FOR DISCHARGE OF THE CHARGE
REGISTERED ON 11. 09. 1984 AGAINST LAND REFERENCE NO. 209/8552/535
IN FAVOUR OF KENYA FLOUR MILLS (1975) LIMITED
-AND-
IN THE MATTER OF COMPANIES ACT, 2015
-AND-
IN THE MATTER OF LAND ACT
-AND-
IN THE MATTER OF TABITHA MUNYAO MUNUKU...............APPLICANT
JUDGMENT
1. Tabitha munyao Munuku has filed this action on behalf of the Estate of her late husband Timothy Munyao Munuku (deceased).
2. Munuku (deceased) charged his property to Kenya Flour Mills [1975] Limited (the charge) for a sum of Ksh 25,000/=. The charge was registered against the title L.R. No. 209/8552/535on 11th September 1984.
3. Munuku (deceased) died on 18th August 2008. The chargee ceased to operate as a business and last filed its return in 1994. Tabitha Munuku, the widow of Munuku deceased has made various effort to contact the chargee company by mail and physically but that company has not been traced.
4. It is in those circumstances that Tabitha Munuku seeks orders for the discharge of the property. Since the chargee company ceased to operate and it cannot be traced the orders sought are merited.
5. I grant the following orders:
a. The Charge registered on 11. 09. 1984 as entry No. 2 against the Certificate of Lease/Title in respect of Land Reference No. 209/8552/535 be and is hereby discharged.
b. The Deputy Registrar of the Court to execute the Instruments of Discharge on behalf of Kenya Flour Mills (1975) Limited.
c. No orders as to costs.
DATED, SIGNED and DELIVERED at NAIROBI this 6th day of December, 2018.
MARY KASANGO
JUDGE
Judgment read and delivered in open court in the presence of:
Court Assistant....................Sophie
........................................... for the Applicant
MARY KASANGO
JUDGE