[2010] KEHC 174 (KLR)
The court found that the delay in registering the charge was occasioned by the existence of a prior charge in favour of Standard Chartered Bank, which was only discharged after the expiry of the statutory period for registration. The applicant was not at fault for the delay, as the discharge was beyond its control....
Source-derived case information.
- Citation
- [2010] KEHC 174 (KLR)
- Parties
- Applicant: Co-operative Bank of Kenya Limited; Respondent: Midland Autoservices Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 330 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Extension of Time to Register Charge
- Outcome
- application allowed
- Judges
- A. Ong’injo
- Legal Topics
- Company Charge Registration, Extension of Time, Secured Transactions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Co-operative Bank of Kenya Limited
Applicant
Midland Autoservices Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Extension of Time to Register Charge
Legal Issues
- 1 Whether the applicant should be granted leave to come on record for the applicant.
- 2 Whether the time for registration of the charge dated 8th February, 2010 over L.R. No. 209/6850 should be extended.
- 3 Whether the delay in registration was excusable and beyond the applicant's control.
Ratio Decidendi
The court found that the delay in registering the charge was occasioned by the existence of a prior charge in favour of Standard Chartered Bank, which was only discharged after the expiry of the statutory period for registration. The applicant was not at fault for the delay, as the discharge was beyond its control. The court exercised its discretion under section 102 of the Companies Act and section 3A of the Civil Procedure Act to grant an extension of time for registration of the charge, holding that justice would be served by allowing the applicant to perfect its security interest.
Court Disposition
application allowed
Orders
- The firm of Robson Harris and Companies Advocates is granted leave to come on record for the applicant.
- The time for registration at the Companies Registry of the charge dated 8th February, 2010 over L.R. No. 209/6850 is extended for a period of 30 days from the date of the ruling.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
(MILIMANI COMMERCIAL & TAX DIVISION)
MISC. APPLICATION NO. 330 OF 2010
IN THE MATTER OF THE COMPANIES ACT, CHAPTER 486 LAWS OF KENYA
AND
IN THE MATTER OF CO-OPERATIVE BANK OF KENYA LIMITED (“BANK”) AND IN THE MATTER OF
A CHARGE OVER L.R. NO. 209/6850 BY MIDLAND AUTOSERVICES LIMITED (“BORROWER”).
R U L I N G
This ruling relates to a notice of motion application brought under section 102 of the Companies Act and Rules 8(b) of the Companies (High Court Rules) and Section 3 and 3A of the Civil Procedure Act Cap 21 Laws of Kenya and all other enabling provisions of the law. It seeks the following orders:
a)The firm of Robson Harris and Companies Advocates be granted leave to come on record for the applicant herein.
b)The time for registration at the Companies Registry of the Charge dated 8th February, 2010 over Land Reference Number 209/6850, be extended.
c)The costs of this application be borne by the applicant.
During the hearing of the application, the applicant’s counsel, Mr. Muga submitted that they are seeking extension of time to register a charge at the company’s registry and that their application is supported by the affidavit of Paul Kimotho Njoki. Further to the above, he also submitted that the charge dated 8th February, 2010 was not registered at the company’s registry because it was subject to an earlier charge that was registered in the name of Standard Charted Bank for a loan that had been earlier advanced to Midland Auto Services Limited which is the borrower herein. The learned counsel submitted that the bank ought to have registered a discharge of charge but the same was not done till 30th March, 2010 and hence the mandatory period of 42 days had lapsed.It was his contention that the applicant now needs to register the charge to perfect the securities of the further charge that was taken by Midland Auto Services Limited. Mr. Muga further submitted that the delay was beyond their control and hence urged this court to grant the orders being sought.
After carefully considering the application, I hereby grant the orders being sought. Specifically, I hereby direct that the time for registration at the company’s registry of the charge dated 8th February, 2010 over L.R. No. 209/6850 be extended for a period of 30 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:
Muga - Applicant’s Counsel
MUGA APONDI
JUDGE
12TH MAY, 2010