[2009] KEHC 809 (KLR)
The court found that the applicant had provided a reasonable explanation for the delay in registering the mortgage, namely difficulties in retrieving annual returns, and that the delay was inadvertent. The mortgage had already been registered at the Lands Office, and no evidence of prejudice to any party was...
Source-derived case information.
- Citation
- [2009] KEHC 809 (KLR)
- Parties
- Applicant: Savings & Loan (K) Limited; Respondent: Coomes Group Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Cause 744 of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to Register Mortgage
- Outcome
- application granted
- Judges
- A. Ong’injo
- Legal Topics
- Company Mortgages, Extension of Time, Registration of Charges
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Savings & Loan (K) Limited
Applicant
Coomes Group Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to Register Mortgage
Legal Issues
- 1 Whether the court should grant an extension of time for the registration of a mortgage under the Companies Act.
- 2 Whether the delay in registration was inadvertent and excusable.
- 3 Whether granting the extension would prejudice any party.
Ratio Decidendi
The court found that the applicant had provided a reasonable explanation for the delay in registering the mortgage, namely difficulties in retrieving annual returns, and that the delay was inadvertent. The mortgage had already been registered at the Lands Office, and no evidence of prejudice to any party was presented. The court exercised its discretion under Section 102 of the Companies Act to grant a 30-day extension for registration of the mortgage at the Companies Registry, holding that this would be in conformity with the law and would not prejudice any party.
Court Disposition
application granted
Orders
- Time for registration of the mortgage dated 20th April, 2009 over LR No. 330/1300, Flat No. C-6 Nairobi in favour of the Bank to secure Kshs.4,000,000 is extended for 30 days from the date of the order.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Miscellaneous Cause 744 of 2009
IN THE MATTER OF: THE COMPANIES ACT (CHAPTER 486 OF THE LAWS OF KENYA)
AND
IN THE MATTER OF: AN APPLICATION FOR EXTENSION OF TIME FOR REGISTRATION OF A MORTGAGE
SAVINGS & LOAN (K) LIMITED………………..BANK/MORTGAGEE
AND
COOMES GROUP LIMITED………………..COMPANY/MORTGAGOR
R U L I N G
The application has been brought through Notice of motion under Section 3 and 3A of the Civil Procedure Act, Chapter 21 of the Laws of Kenya, section 96, 97 and 102 of the Companies Act, Chapter 486 of the Laws of Kenya and rule 8(b) of the Companies (High Court Rules). The application seeks the following order:
1. THAT this Honourable Court be pleased to grant an order extending the registration, in the Companies Registry, by 30 days from the date of the order or such other period as the court may deem fit, of the Mortgage dated 20th April, 2009 created by the Company over Land Reference Number 330/1300, Flat No. C-6 Nairobi in favour of the Bank to secure the sum of Kshs. 4,000,000. 00
During the hearing of the application, Mr. Inyangu, the applicant’s counsel, submitted that they are seeking an extension of time in which to register a mortgage in the company’s registry by a further 30 days. In addition to the above, he submitted that the application is supported by the affidavit of Agnes Muia which was sworn on 3rd September, 2009. Further to the above, he also informed the court that the mortgage has already been registered at the Lands Office on 24th April, 2009. Accordion to the learned counsel, the delay was caused because the mortgagor had problems to retrieve copies of annual returns. He concluded his submissions by stating that the delay was inadvertent.
After carefully considering the application, I hereby direct that the time for the registration of the mortgage dated 20th April, 2009 created by the Company over LR No. 330/1300, Flat No. C-6 Nairobi in favour of the Bank to secure the sum of Kshs.4,000,000/- be extended for a period of 30 days. The court notes that the same will be in conformity with Section 102 of the Companies Act, Cap 486, Laws of Kenya. Significantly, the above will not prejudice any party.
MUGA APONDI
JUDGE
Ruling read, signed and delivered in open court in the presence of:
Kipng’eno for Inyangu - Applicant’s counsel.
MUGA APONDI
JUDGE
20TH NOVEMBER 2009