HOW TO REGISTER A FOREIGN COMPANY IN KENYA

Current Requirements for Registration of a Foreign Company under the 2015 Act

Registration is mandatory

Pursuant to the 2015 Act, a foreign company shall not carry on business in Kenya unless it is registered in Kenya, or has applied for registration in Kenya but the application has not been dealt with within the prescribed period. Carrying on business, in this regard, is defined to include, but not limited to, offering debentures in Kenya or being a guarantor for debentures offered in Kenya.

 Thus for a foreign company to offer a debenture in Kenya or even be a guarantor for a debenture offered in Kenya, the foreign company must be registered in Kenya.

Shareholding in the foreign company

A foreign company desirous of being registered in Kenya must demonstrate that at least thirty percent of its shareholding is held by Kenyan citizens by birth. This is another major change and one without any clear justification.

Requirements with Respect to Name and Appointment of a Local Representative

In its application for registration as a foreign company in Kenya, the company may specify the name under which it seeks to carry on business in Kenya. This may either be the name of the company under the law of the country or territory in which it is incorporated or an alternative name, other than its corporate name, which the company desires to be its corporate identity in Kenya.

A foreign company is also required to appoint a local representative in Kenya who not only receives service of process but also ensures that the foreign company complies with the requirements of the law. The local representative is personally liable if a penalty is imposed on the company for a contravention or failure to comply with the Act, if the court hearing the matter is satisfied that the local representative should be so liable.

Documents Required to Accompany Application for Registration

         i.            An application for registration of a foreign company is to be accompanied by the following documents:

       ii.            A certified copy of the foreign company's current certificate of incorporation or registration in the company's place of origin, or a document of similar effect

      iii.            A certified copy of the company's constitution (memorandum and articles of association

    iv.            A list containing the names of the company's directors and shareholders, and their personal details

      v.            A memorandum executed by or on behalf of the company stating the powers of directors, if any, who reside in Kenya and are members of a local board of directors;

    vi.            In relation to any existing charge on property of the foreign company that would be a registrable charge if the foreign company were a company incorporated in Kenya, the documents that would be required to be lodged for registration with the Registrar of Companies

   vii.            Notice of the address of the company's registered office in its place of origin, if any; otherwise, the address of its principal place of business in its place of origin; and

 viii.            Notice of the address of the company's registered office in Kenya.

Other Changes Affecting Foreign Companies

In addition to the registration requirements, the 2015 Act introduces, inter alia, the following changes which affect foreign companies:

         i.            Safeguards against the disclosure of a natural person's residential address where this information is required to be provided by the company;

       ii.            A mechanism for the appointment of a liquidator of a foreign company in respect of the foreign company's property in Kenya; and

      iii.            The recognition that a foreign company may have a local board of directors with specific powers in addition to its foreign directors.

    iv.            A foreign National or company wishing to Trade and do Business in Kenya, can opt to Register their already existing foreign" company in Kenya.
This is referred to as a "Foreign Company" Registration with the Registration certificate issued being a Certificate of compliance.

      v.            A Foreign Company is hence a Company registered outside Kenya under the laws of that country.

Local Prescribed Forms for Foreign company Registration.

- Form 236 - List of documents delivered for registration by a company incorporated outside Kenya.

- Form 237 - List and particulars of the directors and secretary of a company  incorporated outside Kenya.

- Form 238 – List of names and addresses of the persons resident in Kenya  authorized to receive service on behalf of a company incorporated outside Kenya.

- Form 250 - Notice of situation of registered or principal office or change therein of  a company incorporated outside Kenya.

-Upon a successful submission of the required documents for registration, the company   shall be issued with a "Certificate of Compliance".

- PIN and VAT Registration

You want register a foreign company in Kenya? Contact us at akoffide@lawyer.com