Registration of a branch of a Foreign Company in Kenya

Registering a branch of a foreign company in Kenya does not create a separate legal entity from the foreign company. Registration is a requirement for all companies incorporated outside Kenya that intend to operate in Kenya as foreign companies.

Branches must have a local representative resident in Kenya, who may be a citizen or a non-citizen. The local representative is answerable for the doing of all acts, matters and things that the company is required to do by or under Companies Act and is personally liable for any penalties imposed on the company for a contravention of, or failure to comply with, the Companies Act.

A Foreign Company is a Company registered outside Kenya, under the laws of that country and given compliance under Kenyan Law to do Business in Kenya.

Companies incorporated outside of Kenya can do business in Kenya by registering a branch. It is a unit that is part of a company that is organized so as to conduct business on behalf of a Parent company, as opposed to carrying on business that is merely ancillary or incidental to the company’s business as a whole.

The parent company is liable for the actions of a branch. An investor could be interested in setting up a new location, division, department under the original company’s name and is still part of that legal entity as an extension to conduct business on behalf of the mother company. In this case, the mother company is not excluded from liabilities incurred at the Branch level.

Requirements for Foreign Company Branch Registration in Kenya

When making an application, the following information and documents are required to be submitted:

1. a completed Form FC 2 (Application for registration as a foreign company)
2. a copy of the company’s certificate of incorporation or registration in its place of origin (or similar document) duly certified by a Notary Public.
3. a copy of the company’s constitution, the Charter, Statutes, Articles or any other instruments defining the constitution of the company or the equivalent duly certified by a Notary Public.
4. A Certified/notarized/ memorandum executed by or on behalf of the company stating the powers of any directors who (a) reside in Kenya and (b) are members of a local board of directors.
5. A list containing the names and personal details of the directors and shareholders of the company.
6. If applicable, particulars of each existing charge on the property of the company [by completing Form CR 25 as well as a certified copy of the document creating or evidencing the charge (in circumstances where such charge would have been registrable had the company been formed and registered under the Companies Act, 2015).
7. notice of the company’s registered office its place of origin or, if it does not have such an office, its principal place of business in its place of origin by providing this information on Form FC 2.
8. Names and postal addresses of one or more persons resident in Kenya authorized to accept, on behalf of the company, service of notices required to be served on the company (local representative)
9. Notice and full address of place of business in Kenya. Form FC4
10. Notice specifying opening hours of the Company. Form FC6
11. Certified copies of passports for each foreign director and the local representative if foreign
12. National ID and KRA Pin Certificate of the local representative if Kenyan.
13. Coloured passport size photos of the foreign directors of the company and the authorised local representative.
14. Payment fee of Kshs. 7,550/- in total

Other requirements in registration of a branch to a foreign company:

1. Prescribed documents may be in a language other than English but must be accompanied by a certified translation into English.
2. Safeguards against the disclosure of a natural person’s residential address where this information is required to be provided by the company
3. A mechanism for the appointment of a liquidator of a foreign company in respect of the foreign company’s property in Kenya
4. The recognition that a foreign company may have a local board of directors with specific powers in addition to its foreign directors.
5. A foreign company may not be registered in Kenya unless it has at least one local representative.  A local representative may be any person of the company’s choice but must be resident in Kenya. The authorized representative does not need to be a director but is always required to be present at the registered office of the company in Kenya when the office is open.  It is an offense for a foreign company to carry on business in Kenya for more than 21 days without a local representative.
6. You may register a foreign company using its corporate name or an alternative name under which it proposes to carry on business in Kenya. If an alternative name is registered it is treated for Kenyan legal purposes as a company’s corporate.
7. Once satisfied with the application, the Registrar will issue and sign a certificate of compliance stating: the name of the company and its identifying number, that the company is registered as a foreign company under the Companies Act, 2015, and the date of such registration, the date of incorporation of the company in its place of origin.

If you would like to establish a Branch of a Foreign Company in Kenya, please contact us on info@swkadvocates.com.