In accordance with 2015 Act, a foreign company cannot conduct business in Kenya unless it is duly registered in Kenya, or an application is pending for registration in Kenya but the application has not been processed within the prescribed period. Conducting business, in this regard, is defined to comprise of, but not limited to, offering debentures in Kenya or being a guarantor for debentures offered in Kenya. 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 duly registered in Kenya.
An application for registering a foreign company in Kenya under the 2015 Act must to be lodged with the Registrar of Companies. The application must contain information prescribed in published regulations to comply with the requirements in respect to the company’s name and the appointment of a local representative and be accompanied by the prescribed fee and the required documents.
Requirements in Respect to Name and Appointment of a Local Representative
In its application for registration of a foreign 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 was incorporated or alternatively the name, other than its corporate name, which the company wants to be its corporate identity in Kenya.
A foreign company is also needed to appoint a local representative in Kenya who not only accepts service of process but also makes sure that the foreign company complies with the requirements of the new 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 Registration Application
Application for registration of a foreign company has to be accompanied by the documents below:
- A certified copy of the foreign company’s current certificate of Formation or incorporation or registration in the company’s place of origin, or a document of similar effect;
- A certified copy of the company’s constitution (memorandum and articles of association);
- A list of the names of the company’s directors and shareholders, and their personal details;
- A memorandum executed by or on behalf of the company indicating the powers of directors, if any, who reside in Kenya and are members of a local board of directors;
- In respect 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;
- Notice of the address of the company’s registered office in its Country of origin, if any; otherwise, the address of its principal place of business in its place of origin; and
- Notice of the address of the company’s registered office in Kenya.