If the director gave a personal guarantee, or continued business knowing staying afloat was impossible, or ran the company dishonestly or illegally.
Aside from being sued for payment under a guarantee, a director can be sued for fraudulently or wrongfully doing business.
Therefore, a director must be careful to watch out for fraudulent trading, wrongful trading, and voidable transactions.
The power to control land use and development in Kenya is vested in the County Governments and therefore the owner or the legal entity of any property, who intends to develop his/her land for any purpose other than that earmarked in the approved Master Plan, will make an application, along with relevant documents, to the respective County Governments’ Department of Physical
Planning for consideration through a registered physical planner.
PROCEDURE
The process includes:
1. Placing an advertisement and getting recommendations from members of the public and lineministries, which are obtained by the County Government. The application is often combined with one for a construction permit.
2. The investor, through a registered physical planner will make application for the change of user through filling in PPA 1 form, which must be duly signed by the physical planner.
3. The planner and the investor will then publish public notices regarding the proposed change of user in two daily newspapers, inviting objections from the public within a period of not less than
fourteen (14) days. A site notice will also be placed on the site indicating intention to change its use within the same duration.
4. Planning brief/report for the site is prepared by the physical planner. The process of preparing and implementing a planning brief/report provides a framework for collecting information about
a site, and investigating and evaluating different interests in it. The brief will explain why the change of use is in line with the policy and why it will not have any negative effects on the land and the neighboring properties. The process could take from one day to 7days depending on the scale of the project
5. The requisite fee will be paid to the respective County Governments and the receipt annexed to the planning brief/report prepared by the physical planner.
6. The brief will then be submitted to the County Government's Department of Physical Planning for approval.
7. The County Government then receives submissions from the general public on any opposition to the change of use. This process could take up to 14 working days:-
8. The County Government will then review the Change of Use proposal/brief with the public objections received if any and will pass a resolution, recording reasons, regarding its consideration or non-consideration for the change. This process takes a minimum of 20 days and could extend depending on the requirements the County Government wants fulfilled.
9. The authority shall, if it finds that the changes sought are relevant to planning principles and are in public interest and are not in contravention to any other statute, give permission for the same by issuing a PPA2 form.
REQUIREMENTS
In summary, below are the requirements for application for a change of user.
Two dully filled P.P.A 1 forms in triplicate submitted and signed by a registered physical
Planner
Planning Brief prepared by a Registered Physical Planner (signed accordingly)
Ownership documents (Title Deeds)
Comprehensive Location Plan
Advertisement of proposal on: a) Two local dailies, b) On site
Application fee receipt
Latest Rates payment receipts
Conversion of subleases into sectional titles can be initiated either by a developer, management company or the owner of an
individual unit. The process entails the registration of sectional plans that have been prepared by a surveyor and approved by the
county government; a sectional plan delineating the various units in any building; closure of the existing (lease) records of the units; opening of new individual (sectional) records for the respective units; transfer of information that existed in the closed records to the newly opened records e.g. ownership, charges, caveats etc; and issuance of sectional titles for the respective units.
Once a sectional title is issued, each unit becomes separate, with its corresponding distinct share in the common property. This exclusivity enables the direct levy of outgoings such as land rent or rates against each unit, as opposed to the head title.
The Registrar is empowered to register a restriction over any title, to prevent further dealings, until the concerned parties comply with the conversion process.
Once a sectional plan in any development is registered, the Registrar is required to constitute the respective owners of the units into a corporation. A corporation is a recognised legal entity, and has several functions under the SPA, 2020 including maintenance of the common areas; insurance of the common property; administration of the by-laws of the concerned development; enforcement of the terms and conditions relating to the land on which the development is erected; and establishment and maintenance of a fund
for the corporation’s expenses.
The corporation should be run by a board of management, which is required to convene annual meetings. In the corporation’s meetings, members are entitled to exercise voting rights in proportion to the units which they own.
Where a property is charged, the
lender is entitled to exercise that right in lieu of the owner. In the discharge of its functions, a corporation is required to periodically levy each unit owner an apportioned sum, as the owner’s contribution towards the corporation’s fund. Where the owner fails to remit the required amount, the corporation reserves the right to register
a caution against the owner’s unit. The caution shall operate as a charge over the particular unit, securing the outstanding amount.
A corporation is also required to constitute a dispute resolution committee, to resolve any disputes members may have regarding
the enforcement of the corporation’s by-laws. The reference of a dispute to the said committee, however, does not deprive an aggrieved party of any other legally available remedies.
Lastly, it is noteworthy that the corporation is also an integral party in any tenancy arrangement involving a unit. The owner of the unit is required to notify the corporation in writing, of his or her intention to let out the unit. The owner is equally required to undertake to repair any damage the tenant may occasion to the premises.
Equally, the owner should notify the corporation once a tenancy ends. In the course of the rental arrangement, the corporation has power to evict any tenant who contravenes any by-law, where the
owner does not intervene despite the corporation’s request to forewarn the tenant.
