PROCEDURE TO APPLY FOR CHANGE OF USER OF LAND IN KENYA

(i) Placing an advertisement in the local newspaper to obtain recommendations from members if the public and line ministries (which are obtained by the County Government)

(ii) The investor, through a registered Physical Planner, will make an application for change of user by filling out a PPA1 Form (which must be duly signed by the Physical Planner). The application is often combined with an application for a construction permit

(iii) The Physical 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 the intention to change its use within the same duration

(iv) A planning brief/planning report is then prepared by the Physical Planner

o The process of preparing and implementing a planning brief/planning report provides a framework for collecting information about a site, as well as investigating and evaluating different interests in it

o The planning brief will explain why the Change of User is in line with local policies and why it will not have any negative impact on the land or neighbouring properties

(v) The requisite fee will be paid to the respective County Government and the receipt will be annexed to the planning brief prepared by the Physical Planner

(vi) The brief will then be submitted to the County Government’s Department of Physical Planning for approval

(vii) The County Government then receives submissions from the general public on any oppositions to the Change of User – this process could take up to 14 working days

(viii) The County Government will then review the Change of User 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 be extended, depending on the requirements the County Government places

(ix) The Department of Physical Planning shall, if it finds that the changes sought are relevant to planning principles and are in the public interest/not in contravention of any statute, give permission for the same by issuing a PPA2 Form

In summary, the requirements for a Change of User application are:

i. Two duly filed PPA1 Forms in triplicate, submitted and signed by a Registered Physical Planner;

ii. Planning brief, prepared and signed, by a Registered Physical Planner;

iii. Ownership documents, i.e. the Title Deed;

iv. Comprehensive location plans;

v. Advertisement of the proposal in two local daily newspapers and on-site;

vi. Application fee and the receipt of the same; and

vii. The latest rates payments receipts.

What is required to register a company with a foreigner in Kenya

Introduction

A foreign company is prohibited from carrying on business in Kenya (including offering of any debentures and being a guarantor for any debentures offered in Kenya) unless it is registered in Kenya under the Companies Act, 2015.

According to the Companies Act, 2015 a foreign company shall not conduct business in Kenya unless it is registered in Kenya, or has made an application for registration in Kenya but the application has not been finalized within the stipulated period. Conducting business[1], in this respect, 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. An application for registration as a foreign company in Kenya under the Companies Act will be lodged with the Registrar of Companies.

Foreign companies must establish and maintain a registered office in Kenya and may only operate and/or carry on business at a place in Kenya that has been notified to the Registrar.

Requirements

Registration of a foreign company in Kenya starts by an application being made to the Registrar of Companies in the prescribed form. The application should contain the following documents and information:A certified copy of Incorporation Certificate in its country of origin
Certified copy of the Constitution of the company in its country of origin
Names, email addresses and phone numbers of directors and shareholders
A signed Memorandum stating the powers of directors resident in Kenya
A notice of the address of registered office and principal place of business in its country of origin
A notice of the registered office in Kenya
Name, email address, phone number and residential address of a local representative
The name: the foreign company can use either its original name or an alternative name.

FORMATION OF A LIMITED COMPANY

 This is by registration under the Companies Act

In order to incorporate themselves into a company, those people wishing to trade through the medium of a limited liability company must first prepare and register certain documents. These are as follows

a. Memorandum of Association: this is the document in which they express inter alia their desire to be formed into a company with a specific name and objects. The Memorandum of Association of a company is its primary document which sets up its constitution and objects;

b. Articles of Association; whereas the memorandum of association of a company sets out its objectives and constitution the articles of association contain the rules and regulations by which its internal affairs are governed dealing with such matters as shares, share capital, company’s meetings and directors among others;



Both the Memorandum and Articles of Associations must each be signed by seven persons in the case of a public company or two persons if it is intended to form a private company. These signatures must be attested by a witness. If the company has a share capital each subscriber to the share capital must write opposite his name the number of shares he takes and he must not take less than one share.

c. Statement of Nominal Capital – this is only required if the company has a share capital. It simply states that the company’s nominal capital shall be xxx amount of shillings. The fees that one pays on registration will be determined by the share capital that the company has stated. The higher Page 21 of 231 the share capital, the more that the company will pay in terms of stamp duty.

d. Declaration of Compliance: this is a statutory declaration made either by the advocates engaged in the formation of the company or by the person named in the articles as the director or secretary to the effect that all the requirements of the companies Act have been complied with. Where it is intended to register a public company, Section 184 (4) of the Companies Act also requires the registration of a list of persons who have agreed to become directors and Section 182 (1) requires the written consents of the Directors.



These are the only documents which must be registered in order to secure the incorporation of the company. In practice however two other documents which would be filed within a short time of incorporation are also handed in at the same time. These are:

1. Notice of the situation of the Registered Office which under Section 108(1) of the statute should be filed within 14 days of incorporation;

2. Particulars of Directors and Secretary which under Section 201 of the statute are normally required within 14 days of the appointment of the directors and secretary. The documents are then lodged with the registrar of companies and if they are in order then they are registered and the registrar thereupon grants a certificate of incorporation and the company is thereby formed. Section 16(2) of the Act provides that from the dates mentioned in a certificate of incorporation the subscribers to the Memorandum of Association become a body corporate by the name mentioned in the Memorandum capable of exercising all the functions of an incorporated company. It should be noted that the registered company is the most important corporation.

POWERS OF ATTORNEY AND THEIR REQUIREMENTS

 Power of Attorney (POA) is a formal instrument by which one person empowers another to represent him or act on his behalf for specific purposes. The power may be limited and may refer to particular/specific acts, or it may be unlimited and general in its form. 

Requirements 

1. The full names and addresses of the donor (the person giving the POA) and the appointed Attorney must be stated in the POA. 

2. The POA must be executed per the requirements of the law. The donor must sign it, and the signature must be witnessed by an individual who is not a party to the power of Attorney. If the donor/grantor is a corporate entity, the power must be executed under Seal. 

3. Powers of Attorney (POA) must be stamped (payment of stamp duty) and registered in Kenya in the Register of Powers of Attorney under the Registration of Documents Act. 

4. A power of Attorney can be given to a company, i.e., a company can be appointed as an attorney and requisite powers donated to it. 

5. Several persons may appoint the same attorney/s jointly or separately, and several parties may join in one power appointing an attorney for their joint or separate purposes. 

6. If a company has issued the POA, a copy of the Memorandum and Articles of Association of the company and a company resolution authorizing the POA must be presented

Processes of starting the companies

 Processes of starting the companies

1. Log onto eCitizen account and do a name search; if name is approved you can start registration process
2. Fill company registration form CR1.
3. Fill details of directors and shareholders and upload scanned copies of I.D. card/passport, KRA PIN certificate and recent coloured passport photograph. Directors/shareholders have to be registered on the iTax platform.
4. Fill shareholding details.
5. Fill a notification of directors’ residential address – Form CR8.
6. Fill the statement of nominal capital.
7. Pay requisite prescribed fee
8. Submit to Registrar for approval