Under the Companies Act 2015, any foreign company intending to do business in Kenya must be registered. Alternatively, the company must have a pending application for registration that has not yet been processed within the prescribed period to operate legally in the country.

Foreign companies can enter the Kenyan market by registering a new local company, a branch of the foreign entity, or a subsidiary. A key requirement is appointing a local representative, who must be a Kenyan citizen. This representative acts as the company’s link with the government and ensures compliance with the Companies Act. The representative may be personally liable for any penalties imposed due to the company’s contravention or non-compliance with the Act. It is also illegal for a company to carry out business for more than 21 days without appointing a local representative.

To register a foreign company in Kenya, the following documents must be submitted to the Registrar, along with the prescribed fee:

1. A completed Form FC1 (Application for Registration of a Foreign Company)
2. A certified/notarized copy of the certificate of incorporation from the company’s country of origin
3. Certified/notarized copies of the articles of association and memorandum of association
4. A list of names and personal details of the company’s directors and shareholders
5. A certified/notarized memorandum executed by or on behalf of the company, outlining the powers of directors residing in Kenya or members of the local board of directors
6. Notice of the company’s registered office or principal place of business in its country of origin
7. Names and postal addresses of one or more persons residing in Kenya authorized to accept service of notices on behalf of the company
8. The full address of the company’s place of business in Kenya
9. The mechanism for appointing a liquidator for the foreign company’s property in Kenya
10. Recognition that a foreign company may have a local board of directors with special powers, in addition to foreign directors.

Upon successful submission and certification of these documents, the Registrar will issue a Certificate of Compliance. This certificate will include the name of the company, its identifying number, the date of registration in Kenya under the Companies Act 2015, and the date of incorporation of the parent company in its country of origin. The Certificate of Compliance serves as conclusive evidence that the foreign company has met the registration requirements.

The Companies Act 2015 does not mandate local shareholding for foreign companies to register and operate in Kenya. However, other Acts of Parliament or regulatory bodies may impose local ownership requirements. For instance:

1. An engineering consulting firm must have at least 51% of its shares owned by Kenyan citizens.
2. The Insurance Act mandates that at least one-third of ordinary shares be owned by citizens of East African Community (EAC) member states.
3. The Capital Markets Authority (CMA) requires that a public company listed on the Nairobi Securities Exchange have at least 21% of its shares owned by EAC citizens.
4. A company seeking mineral rights for small-scale extraction must have at least 60% of its shares owned by Kenyan citizens.

The registration process for a foreign company in Kenya is relatively fast, typically taking 10 to 20 days, depending on the volume of applications and system uptime. To avoid delays caused by incomplete documentation or procedural omissions, it is advisable to seek assistance from an experienced party during the registration process.