The Companies (Beneficial Ownership Information) Regulations, 2020 came into force on 18 February 2020. The Regulations provide further critical detail in connection with the implementation of section 93A of the Kenyan Companies Act. Section 93A requires a Kenyan incorporated company to disclose information relating to the beneficial owners of its shares. The Regulations additionally set out the information to be provided to the Registrar of Companies and statutory forms to be completed for filing with the Registrar. The Regulations which apply to all Kenyan incorporated private and non-listed public companies are wide in scope and application. They are drafted to extend to direct and indirect ownership and control and to identify the natural persons who ultimately own or control a Kenyan company.
In a comprehensive article, we have outlined how the Regulations could extend to the trustees of an offshore trust holding Kenyan companies as trust assets, to synthetic transactions in relation to shares and dividends of a Kenyan company and to voting rights agreements and other arrangements or agreements which would not usually be required to be recorded in any register (private or public) like, for example, a register of members.
The Companies Act provides for criminal penalties in the case of non-compliance with the beneficial ownership disclosure requirements. These are severe and extend to the company, its directors and company secretary. As liability extends to the officers of a company, it is important for the directors and company secretary as officers of the company to take immediate action to ensure compliance so as to avoid criminal sanctions and, in addition, reputational risk.
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