Appointment, Resignation and Removal of a director of a company in Kenya

Appointment of a director in Kenya is done either during the incorporation of a Company or appointment by the company at the Annual General Meeting or by an Ordinary Resolution of the Company.

The Companies Articles of Association will provide how there will be appointment, removal, the retirement of directors in Kenya. This is especially true for companies that were registered with their set of Memorandum & Articles of Association in Kenya.

For example, in the provided Model Articles of Association adopted by many private companies in Kenya-

A person ceases to be a director if the person—

(a) ceases to be a director under the Act or section 411 of the Insolvency Act, 2015, or is prohibited from being a director by law;

(b) becomes bankrupt or makes any arrangement or composition with the person’s creditors generally;

(c) becomes a mentally disordered person;

(d) resigns the office of director by notice given to the other directors (if any);

(e) for more than 6 months has been absent without the directors’ permission from directors’ meetings held during that period; or

(f) is removed from the office of the director by an ordinary resolution of the company.

Voluntary resignation by a director of the Company in Kenya.

A director of the Company may resign voluntarily from his/her position in the company. The Company is required to notify the Registrar within fourteen (14) days of such resignation.

Documents Required;

1. Resignation letter stating that the director wishes to resign from the Company
2. Affidavit of Resignation is required by the Registrars of Companies
3. Minutes from a meeting of directors showing the resignation (note all the directors must sign the extract of the minutes from the meeting.

See Practice Note PN/03 issued by the Business Registration service.  

Removal of a director in Kenya

A director can be removed in Kenya by way of a Special General Meeting. This involves calling a Special General Meeting with Special Notice (28 days). The Notice must be issued to all the Shareholders and Directors.

The meeting will then pass a Special Resolution for the removal of the director. The company must ensure that the Notice for the Meeting is served to the outgoing director. This can be through a registered post or regular email address.

Death of a director in Kenya

What happens when a director dies in Kenya? The company is required to obtain the minutes of the meeting showing that the death of the director was reported to the company. To file the changes, you will be required to upload signed minutes and upload the death certificate.

Retirement/removal at an Annual General Meeting

A director of a company may be removed at the Annual General Meeting by way of retirement (being eligible but does not offer themselves for re-election). Shareholders can also remove the director by not re-electing an eligible director who has expressed interest to continue serving in the company.

Documents to file for removal of the director in Kenya

You will be required to log in to ecitizen.go.ke, Business Registration Service, click on the business, maintain a company, and click on change of officials.

1. Resignation from office
You will be required to file the following documentation within fourteen (14)
days:
(a) Letter of resignation;
(b) Statutory declaration confirming that the director is resigning voluntarily;
(c) Extract from the Minutes of a meeting of the Directors noting the resignation;
and
(d) Notice of Cessation of Office of Directors (Form CR 9).2. Removal of a director

You will be required to file the following documentation within fourteen (14)
days:
(a) Copy of the twenty-eight (28) days special notice served under sections 139(2)
as read with 287 of the Companies Act or if it is not practicable to give that
the notice provides a copy of fourteen (14) day notice of the resolution advertised
in a newspaper having a wide circulation in the area in which the company
carries on business or in any other manner allowed by the company’s articles;
(b) Proof of service of a copy of the special notice from the company to the
director giving the director at least twenty-one (21) days;
(c) Proof of service of notice for general meeting at least twenty-one (21) days
for private company and at least fourteen (14) days for public company;
(d) Form CR 19 containing extract of minutes confirming quorum and removal;
and
(e) Form CR 9 – Notice of cessation of office of director.
C) Rotation

Where a director retires by rotation but is not re-elected at a General meeting:
(a) Form CR 9 – Notice of cessation of office of director.
(b) Form CR 19 containing extract of minutes confirming quorum and status.
d) Retirement
Where a director leaves office under attaining the age of retirement:
(a) Form CR 9 – Notice of cessation of office of director.
(b) Form CR 19 containing extract of minutes confirming quorum and status.

3) Lack of capacity of a director
(i) Death

(a) Form CR 9 – Notice of cessation of office of director;
(b) Copy of death certificate;

(ii) Insanity

(a) Form CR 9 – Notice of cessation of office of director.
(b) Report under the Mental Health Act (Needs further review of the Mental
Health Act).
(iii) Bankruptcy
(a) Form CR 9 – Notice of cessation of office of director.
(b) Copy of the bankruptcy order issued under the Insolvency Act.

Things to consider that may delay your application for removal of a director;

1. The Company has to be linked online on Ecitizen.go.ke
2. The company must have updated the Beneficial Ownership information with the Registrar of Companies.
3. The Company’s Annual Returns must be up to date
4. All the requirements for removal or resignation of a director must be complied with.

How long does that process take?

This process could take between 90 and 120 days for approval by the Registrar of Companies.