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Case Brief · caselaw.co.ke
ELCPartially AllowedMiscellaneous Application E031 of 2022· [2022] KEELC 13315 (KLR)

In re Sidian Bank Limited

Environment and Land Court
4 October 2022
560 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court gave Sidian Bank 30 extra days to register a charge over land, accepting a director's absence abroad as a reasonable excuse for the delay.

What this practically means

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Executive summary

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Sidian Bank Limited, as applicant, moved the Environment and Land Court at Meru under Sections 885, 887 and 888 of the Companies Act, 2015 seeking a 60-day extension of time to register a further charge dated 25.8.2022 over L.R No. Nyaki/Mulathankari/3062 in favour of the bank. The application was supported by an affidavit sworn on 16.9.2022 by Muthomi Njeru, advocate. The explanation for the delay was that the statutory 30-day registration window under Section 885 lapsed because Julius Mitambo Gathimo, a director of Code Shippers Limited (the chargor), who resides in Dubai, was unavailable to append his signature in time. The court outlined the statutory scheme: Section 884 obliges the Registrar of Companies to register charges and maintain a register; Section 885 sets the 30-day period; and Section 888(1) allows a party who has failed to meet the deadline to seek an extension. The discretion is guided by whether non-compliance was accidental, inadvertent or reasonably explained, and whether extension is just, fair and reasonable so as to safeguard the creditor's interest. Relying on its earlier decision in Re Silverspread Hardware Ltd in favour of Bank of Baroda (Kenya) Ltd (2021) eKLR, the court affirmed its wide discretion. Although the applicant did not avail evidence of the director's exit from and entry into Kenya, the court had no reason to doubt the affidavit of Mr. Njeru, an officer of the court. The court extended time by 30 days, rather than the 60 sought, to lodge the further charge, and closed the file. No costs order was made.

Key legal issues

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Whether the delay in registering the further charge should be excused

Holding

Yes; the unavailability abroad of a director of the chargor to sign the charge was accepted as reasonable cause, and the affidavit of the advocate, an officer of the court, was not doubted.

Reasoning

Section 885 of the Companies Act requires registration of a charge within 30 days of creation, but Section 888(1) permits a party who has failed to meet the deadline to seek an extension. The court applies the principles that non-compliance was accidental, inadvertent or reasonably explained, and that extension must be just, fair and reasonable to safeguard the creditor's interest. Although no travel evidence was availed for the director, the court had no reason to doubt the advocate's affidavit.

p. 2

Legal principles established

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  • The court has wide discretion to extend time for registration of a charge to safeguard the interests of justice in deserving cases, guided by whether non-compliance was accidental, inadvertent or reasonably explained.

Court orders

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  1. 1.Extension of time for another 30 days to lodge the further charge with the Registrar of Companies
  2. 2.File closed

Authorities

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Legislation

  • Companies ActSection 884
  • Companies ActSection 885
  • Companies ActSection 887
  • Companies ActSection 888(1)

Cases cited (1)

  • In Re application for extension of time for registration of a charge by Silvers spread Hardware Ltd in favour of Bank of Baroda (Kenya) Ltd
    (2021) eKLR

    That the court has wide discretion to extend time to safeguard the interests of justice in deserving cases.

Jurisdiction invoked
Sections 885, 887 and 888 of the Companies Act, 2015

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "In re Sidian Bank Limited", Case Analysis (2022). Miscellaneous Application E031 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13315/eng@2022-10-04

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.