1. CORPORATE SECRETARIES SEMINAR PANAFRIC HOTEL, NAIROBI GOVERNANCE AND COMPLIANCE REQUIREMENTS UNDER THE COMPANIES ACT, 2015 19-20 NOVEMBER,2015 CS. REBA CHABEDA - OUKO UMSIZI LLP www.umsizi.co.ke 1

2. OVERVIEW  Overview of the legal reforms on Business Entities  The impact of the Companies Act 2015 on Certified Secretaries  Opportunities for Certified Secretaries under the Companies Act 2015 2

3. RECENT LEGISLATION REGULATING BUSINESS  Companies Act 2015  Insolvency Act 2015  Companies and Insolvency Legislation (Consequential Amendments) Act 2015  Business Registration Service Act 2015  Special Economic Zones Act 2015 3

4. OTHER LAWS TO CONSIDER  Commercial Laws  Competition Laws  Consumer Protection Laws  Dispute Resolution Laws  Financial Services Laws  Labour Laws  Land Laws and Property Laws  Tax Laws  Specific Industry/Sectoral Laws and Regulations 4

5. THE COMPANIES ACT 2015 – HIGHLIGHTS  Companies Registry is still operating “as is”  New Act is based on the United Kingdom Act and English legal practice  It is an attempt modernize laws relating to companies and their operation and easing business for small and medium enterprises  We are still in transition, as we do not have all the enabling subsidiary legislation and regulations.  According to the Special Issue, Kenya Gazette Supplement – Legal Notice 232 dated Nov 13, 2015,the following sections of the Act are now in force: Parts 1 to 14, 23, 32, 38, 40, First, Second and Sixth Schedules are in force. 5

6. THE COMPANIES ACT 2015 – HIGHLIGHTS COTD …  The Parts and Schedules in force basically cover the following areas:  Preliminary matters  Company Formation and Registration  Companies Constitution  Capacity of a Company  Name of the Company  Alteration of Status of Companies  Company Members  Exercise of Rights of Members  Company Directors 6

7.  Disqualification of Directors  Derivative Actions  Company Secretaries  Resolutions and Meetings  Share Capital of a Company  FIRST SCHEDULE: Connected persons: References to an interest in shares or debentures  SECOND SCHEDULE: Matters for determining unfitness of a director  SIXTH SCHEDULE: Savings and transitional provisions [Which are : S.1- 403, S.570 – 582, S.877 – 892, S.996 -1005 and S.1010 - 1016 ] 7 THE COMPANIES ACT 2015 – HIGHLIGHTS COTD …

8. SECTIONS ON GOVERNANCE AND COMPLIANCE :  S.11:Company Formation – Now one person can form a company  S.12 &13 : Constitutive Documents – Memo & Articles - New format of the forms yet to be issued  S.128 & 129: Directors – At least one natural person must be a director  S.178 :Company Secretary– Only required for a private company with share capital of above Kes.5Million and all public companies  S.138 : Consents required- For appointment and removal of a director or secretary of a company 8 THE COMPANIES ACT 2015 – HIGHLIGHTS COTD…

9. SECTIONS ON GOVERNANCE AND COMPLIANCE :  S.37&38 : Execution of Documents – Not mandatory to use Company Seal for proper execution  S.53 & 54 : Naming of the Companies- Public Limited Company Vs Limited  S.140–150 : Directors Duties – Common law duties codified and more comprehensive  S.275 & 276: Annual General Meeting – Not mandatory for private companies but still required for public companies.  Penalties are quite hefty with fines now ranging from Kes. 200,000 – Kes.10Million, daily fines for non –compliance and prison sentences up to Fifteen Years 9

10. SECTIONS ON GOVERNANCE AND COMPLIANCE :  S.424 : Purchase of own shares by a company for valuable consideration is now allowed  S.362: Allotment of Shares – A public company shall not allot a share unless it is at least one quarter paid up  S.705 : Annual returns - To be lodged within 28 days (not 42days as was previously required )  S.1006:Company Records - Records may be kept in hard copy or electronic form so long as they can be converted into hard- copy form if needed. 10 THE COMPANIES ACT 2015 – HIGHLIGHTS COTD…

11. PART XII: COMPANY SECRETARIES (SECTIONS 243 to 254)  S.243: Private company not required to have a Secretary (1) A private company is required to have a secretary only if it has a paid up capital of five million shillings or more. (2) If a private company does not have a secretary: (a) anything authorised or required to be given or sent to, or served on, the company by being given or sent to, or served on its secretary (i) may be given or sent to, or served on, the company itself; and (ii) if addressed to the secretary, is taken to be treated as addressed to the company; and (b) anything else required or authorised to be done by the secretary of the company may be done by- (i) a director; or (ii) a person authorised generally or specifically for that purpose by the directors. 11

12. PART XII: COMPANY SECRETARIES (SECTIONS 243 to 254)  S.244: Public company required to have a Secretary Every public company is required to have at least one secretary.  S.245: Direction requiring public company to comply with section 244 (1) […] the Attorney General may give the company a direction under this section (6) If a company fails to comply with a direction given to it under this section, the company, and each officer of the company who is in default, commit an offence and on conviction are each liable to a fine not exceeding five hundred thousand shillings. (7) If, after a company or any of its officers is convicted of an offence under subsection (6), the company continues to fail to comply with the direction, the company, and each officer of the company who is in default, commit a further offence on each day on which the failure continues and on conviction are each liable to a fine not exceeding fifty thousand shillings for each such offence. 12

13. PART XII: COMPANY SECRETARIES (SECTIONS 243 to 254)  S.246: Qualifications of Secretaries of public companies (a) is a person who appears to them to have the requisite knowledge and experience; and (b) is the holder of a practicing certificate issued under the Certified Public Secretaries of Kenya Act. (2) A director of a public company who fails to comply with subsection (1) commits an offence and on conviction is liable to a fine not exceeding two hundred thousand shillings.  S.247: Discharge of functions if office vacant or Secretary unable to act If, in the case of a public company, the office of secretary is vacant, or for any other reason there is no secretary capable of acting, anything required or authorised to be done by or to the secretary can be done — (a) by or to an assistant or deputy secretary (if any); or (b) if there is no assistant or deputy secretary or no person capable of acting by or to any person authorised generally or specifically for the purpose by the directors. 13

14. PART XII: COMPANY SECRETARIES (SECTIONS 243 to 254)  S.248: Duty to maintain register of Secretaries (3) The company shall ensure that its register of secretaries is kept open for the inspection by- (a) any member of the company without charge; and (b) any other person on payment of the prescribed fee (if any). Fine in default: a fine not exceeding five hundred thousand shillings. Fine for continued non-compliance: each liable to a fine not exceeding fifty thousand shillings for each such offence.  S.249: Duty to notify Registrar of change of Secretary/ Joint Secretary within 14 days Fine in default: a fine not exceeding two hundred thousand shillings. Fine for continued non-compliance: each liable to a fine not exceeding twenty thousand shillings for each such offence 14

15. PART XII: COMPANY SECRETARIES (SECTIONS 243 to 254)  S.250: Particulars of secretaries that are required to be registered: natural persons.  S.251: Particulars of secretaries that are required to be registered: corporate secretaries and firms  S.252: It shall be an Offence to include misleading, false or deceptive particulars in register of particulars of secretaries  S.253: Penalties in default of Sections 250 and 251 Fine in default: a fine not exceeding two hundred thousand shillings. Fine for continued non-compliance: each liable to a fine not exceeding twenty thousand shillings for each such offence  S.254: Acts done by person in dual capacity not valid 15

16. ADVANTAGES OF THE NEW ACT  What are the advantages if any to :  The business owners ?  The managers and controllers of the business ?  The governance professionals ? 16

17. ‘TRADITIONAL’ ROLE OF THE CS  Technical skill (corporate secretarial: Filing Returns; Taking Minutes; Drafting Agendas)  Custodial (corporate memory)  Corporate Governance Champion (?)  Whistleblower (?) 17

18. CORPORATE CONSIDERATIONS Sustainable Profit ( Global) Governance Standards Political Risk Consumer Awareness and Protection Environmental Management Tightening Regulation War against Crime and Terror Emerging Laws Income Disparities (wallet share) Competition (new frontiers) Country Success Disparities Rapid Technological Advances Increasing Globalisation (Borderless Transactions) 18

19. WHAT (NICHE) ROLE FOR THE CS?  Governance  Compliance 19

20. ‘NEW’ SKILLS  Risk Management (governance risk; compliance risk)  Technical know-how (laws/regulations and their application)  Business acumen (macroeconomic environment; global initiatives)  Negotiation  Cost management  People Skills (Relationship Management)  Opinion Leader and Problem Solver  Project Management 20

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