• companies acquiring or owning agricultural land (no percentage restriction but may be subject to requirements for Presidential exemption); • certain licensed telecommunications operators and internet service providers (non-statutory government policy restriction on ownership); • financial sector advisers (non-statutory government policy restrictions); • engineering firms; • airlines (air services providers); and • mining companies (although currently the restriction is not being enforced). Immigration, Employment and Local Content Non-citizens require class “D” entry permits under the Kenya Citizenship and Immigration Act 2011 authorising them to work for a company in Kenya. Permits are usually granted for a period of two years. Employees on short- term assignments may apply for special passes which last for up to three months. The issue of an entry permit is discretionary. A permit will be granted to a full-time employee if the immigration authorities are satisfied that the presence of the employee is essential to the running of the business and the job cannot be performed by properly qualified and experienced Kenyans. Dependants of entry permit holders (spouses and children up to 18 years-old) are also required to have Dependants Passes which are usually granted automatically. There have been extended delays in the issue of permits. The process takes approximately four to five months and the process cannot be commenced before the establishment of the local entity. Termination of employment must be for a fair and justifiable reason and the relevant procedure set out in our Labour Laws (and any applicable company policies) must be complied with. It is not sufficient merely to give notice of termination or make payment of wages in lieu of notice. Where an employer intends to terminate an employee on grounds of misconduct, poor performance or physical incapacity, the employer is required to accord the employee a hearing and to consider the representations made by the employee or his representative before
• Unincorporated Trusts Unincorporated trusts are principally used as a conduit for the holding and disbursing of funds to a principal entity when they are approved by the trust. Incorporation Procedure 1 In an effort to facilitate the ease of doing business, the Registrar of Companies has introduced an online process for the incorporation of companies. Applications for incorporation of corporate structures such as private limited companies are nowmade through a government online portal ( eCitizen ). The eCitizen portal allows for the use of diverse payment methods including mobile money, credit cards and local bank transfers.
Approximate cost (USD )
Item
Time
1 Name Search and Reservation 2 Application for registration of Memorandum and Articles of
1-2 days
USD 2
1-2 days after step 1 is complete
USD 105
Association and company forms
3 Issue of Certificate of Incorporation
Incorporation is complete when the Registrar of Companies issues a Certificate of Incorporation, which takes about 2 weeks from start of process
N/A
Incorporating a new legal entity takes approximately 2 weeks and this registration time is expected to reduce further as the Companies Registry continues to implement the online system. There are several restrictions on foreign shareholding in a number of industry sectors in Kenya. The nature of the restrictions are beyond the scope of this guide. However, advice should be sought when dealing with the following sectors: • companies quoted on the Nairobi Securities Exchange; • insurance companies (including brokers and insurance agents);
1 Cost and timeframe are based on typical experiences for the incorporation of limited liability companies. These will vary depending on the specifics of each incorporation and may not be relevant for highly regulated sectors.
Africa Investment Guide | 43
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