[2010] KEHC 751 (KLR)
The court found that the applicant had demonstrated sufficient cause for the extension of time required for registration of the further charge, as the delay was due to inadvertence by counsel. The court exercised its discretion under section 102 of the Companies Act, holding that the interests of justice would be...
Source-derived case information.
- Citation
- [2010] KEHC 751 (KLR)
- Parties
- Applicant: Allan Distributors Limited; Respondent: K-Rep Bank Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 324 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Extension of Time
- Outcome
- application granted
- Judges
- A. Ong’injo
- Legal Topics
- Company Charge Registration, Extension of Time, Companies Act Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Allan Distributors Limited
Applicant
K-Rep Bank Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Extension of Time
Legal Issues
- 1 Whether the court should grant an extension of time for registration of a further charge under section 96 of the Companies Act.
- 2 Whether inadvertence by counsel constitutes sufficient cause for extension of time under section 102 of the Companies Act.
Ratio Decidendi
The court found that the applicant had demonstrated sufficient cause for the extension of time required for registration of the further charge, as the delay was due to inadvertence by counsel. The court exercised its discretion under section 102 of the Companies Act, holding that the interests of justice would be served by granting the extension, particularly since the funds in question were trading funds beneficial to both the creditor and debtor. The court emphasized that errors by counsel should not prejudice the client, and thus allowed the application as prayed in prayer No. 2, extending the time for registration by 42 days from the date of the order.
Court Disposition
application granted
Orders
- Time for registration required by section 96 of the Companies Act in respect of the further charge dated 21st July 2009 between Allan Distributors Limited and K-Rep Bank Limited is extended for 42 days from the date of this order.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
(MILIMANI COMMERCIAL & TAX DIVISION)
MISC. APPLICATION NO. 324 OF 2010
IN THE MATTER OF ALLAN DISTRIBUTORS LIMITED
AND
IN THE MATTER OF THE COMPANIES ACT(CHAPTER 486 LAWS OF KENYA)
R U L I N G
This ruling relates to a notice of motion application brought under section 102 of the Companies Act, Chapter 486 of the Laws of Kenya. It seeks the following orders
1. THAT the applicant’s Notice of Motion brought under Section 102 of the Companies Act Chapter 486 of the Laws of Kenya be heard during the High Court vacation.
2. THAT this Honourable Court be pleased to grant an Order pursuant to section 102 of the Companies Act (Chapter 486) that the time for registration required by Section 96 of the said act, in the matter of the Further Charge dated the 21st day of July 2009 and made between ALLAN DISTRIBUTORS LIMITED of one part and K-REP BANK LIMITED of the other part relating to all the assets of the said company of whatsoever nature and wheresoever situate charged under the Further Charge to secure repayment of the sum of Kenya Shillings Three Million (Kshs.3,000,000/=) be extended for forty two (42) days from the date of the Order to be made thereon.
During the hearing of the application, the applicant’s counsel Mr. Nyamogo Ochieng’ submitted that they were applying for enlargement of time to ensure compliance with section 96 of the Companies Act. Besides the above, he submitted that the further charge is 21st July 2009 and that the same has been annexed to their affidavit.Further to the above, he also submitted that they were relying on his affidavit dated 12th April 2010. According to the learned counsel the non-compliance with section 96 was due to inadvertence by the applicant’s counsel. Despite the fact that they have reflected the above in their affidavit, he was of the view that the malfeasance by a counsel should not be visited on his client. He urged this court to look at the matter in that shade. Apart from the above, he also submitted that in the event that the court grants such an order the same will be for the benefit of all the parties since the funds in question are trading funds that will be beneficial to both the creditor and debtor. In conclusion, the learned counsel submitted that the loan has already been granted by the bank.
After carefully considering the application and the annextures, I hereby grant the same in terms of prayer No. 2. Specifically, I hereby direct that the time for registration required by section 96 of the Companies Act, in the matter of further charge dated 21st July 2009 and made between Allan Distributors Limited of the one part and K-Rep Bank of the other part relating to all the assets of the said company of whatsoever nature and wheresoever situate charged under the further charge to secure repayment of the sum of Kenya shillings Three Million (Kshs. 3,000,000/-) be extended for a period of 42 days from today’s date.
Those are the orders of this court.
MUGA APONDI
JUDGE
Ruling read, signed and delivered in open court in the presence of:
Ochieng Nyamogo- Applicant’s Counsel
MUGA APONDI
JUDGE
11TH MAY, 2010