In re Joshua Musembi Ndolo [2017] KEELC 2424 (KLR)
The bottom line
#A Kenyan court ruled that charges over land owned by an individual, not a company, don't need registration with the Registrar of Companies, so no extension of time could be granted.
What this practically means
#Executive summary
#Key legal issues
#Whether the charge over the suit land fell within Section 878 of the Companies Act, 2015
It did not, because the charge was created by the individual land owner and the company neither owns the land nor has a proprietary interest in it
Section 878(4)(a) applies only to charges on land owned by the company or in which it has a proprietary interest. The land parcel Nakuru Municipality/Block 16/303 is owned by Joshua Musembi Ndolo, an individual. The obligation to register under Section 878(1) falls on the company creating the charge. Since the charge was created by the individual, not the company, no provision of the Companies Act mandates registration of such a charge with the Registrar of Companies, even within any particular period.
Whether the court could grant extension of time under Section 888 of the Companies Act
No, because Section 888 relief presupposes a failure to register a charge that was required to be registered before a deadline; where no registration is required and no deadline exists, there is nothing to extend
Section 888 permits a company or interested person to seek rectification where there has been a failure to register a charge before the deadline for registration. That remedy is anchored on the existence of a statutory registration obligation and deadline under Sections 878 and 885. Since the applicant's charge is outside Section 878, the application under Section 888 is not anchored in any law and the court cannot extend a non-existent period.
Legal principles established
#- Section 878 of the Companies Act, 2015 applies only to charges created by a company over land owned by the company or in which it has a proprietary interest; a charge created by an individual over land not owned by the company need not be registered with the Registrar of Companies
- Where there is no mandatory requirement to register a charge, there is no deadline whose extension can be ordered under Section 888
Court orders
#- 1.The application for extension of time to register the charge with the Registrar of Companies was dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Sections 878 and 888 of the Companies Act, 2015
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "In re Joshua Musembi Ndolo [2017] KEELC 2424 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2424/eng@2017-06-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.