The Business Registration Service Act (2015) “the BRS Act” Was Signed Into Law By The President On 11th September 2015 And Became Operational On 6th November 2015. The Main Purpose Of The BRS Act Is To Create The Corporation That Would Be Responsible For The Implementation And Observation Of the Laws Concerned With The Formation And Registration Of Companies (Incorporation) And The Registration Of Partnerships And Sole Proprietor Businesses (Business Names). This Corporation Is Known As The Business Registration Service. The Mandate Of The Service Is To Ensure Effective Administration Of The Laws Relating To The Incorporation, Registration, Operation And Management Of Companies, Partnerships And Firms.
Section 3 of the BRS Act creates the Business Registration Service (“ the Service”) , as a State Corporation that shall continue to exist from the date of its formation irrespective of the changes in the office holders. It has the right/power to own or sell its property, borrow money among other actions that will be necessary for the performance of its duties. Where one is aggrieved by any of the Business Registration Service, they can bring an action against them (sue).
The Functions of the Service
Section 4 of the BRS Act states the main function of the Service as Implementation of laws, regulations and policies concerning the registration of companies, partnerships, business names, societies, hire purchase businesses, trade unions, books and newspapers among others. This shall be carried out under the general supervision of the Attorney General. Other duties include:
The following are the bodies through which the service shall carry out its functions:
The Chair person and the 4 members appointed by the AG shall hold office for a term of 3 years and may be re-appointed for a further term of 3 years only. The terms and conditions of their holding office are determined by the AG while their salaries are determined by the AG in consultation with the Salaries and Remuneration Commission.
These appointees may also cease seize being members of the Board on occurrence of either death, absence from 3 consecutive meetings of the Board without acceptable reasons for non - attendance, resignation in writing addressed to the AG, Physical or mental incapacitation leading to inability to carry out their duties, negligence or incompetence in performance of their duties, being declared bankrupt, violation of Chapter Six of the Constitution of Kenya (2010) on the Leadership and Integrity or conviction for a criminal offence and sentenced to a term of 6 or more months.
Functions of the Board of Directors
Conduct of Board meetings ( Provisions under the Schedule to the Act)
Liability of the Board (Section 16)
B. The Registrar-General (Sections 17- 21)
Removal from office (Section 19)
The R.G. may be removed from office before the lapse of the stipulated term of 4 years if a written notice of the reasons for his/her removal is given by the Board and the R.G. is given an opportunity to be heard in accordance to the Constitution Article 47. The reasons for issue of such a notice may include; violation of the constitution, being incompetent and/ or negligent in carrying out his duties, being mentally or physical incapacitated resulting to his inability to perform his duties orbehaving so badly in ways that are contrary to the terms and conditions of employment suchthat the employer- employee relationship is destroyed (gross misconduct).
The R.G shall hold office for a term of 4 years and may be reappointed for a further 4 years only.
Duties of the R.G.
The other duties of the R.G. will be determined by the Board.
C. Members of Staff (Section 20)
Members of staff shall be appointed by the Service on such terms and conditions as determined by the Board.
Members of staff may also be seconded by the Public Service Commission from other departments of the public service and such seconded members shall when seconded fall under the control and direction of the Board.
Government employees who were under the Department of the Registrar-General (State Law Office) before the commencement of this Act became the staff of the service (Section 31).
The finances of the Service shall come from money allocated by Parliament, grants and donations made to the Board and fees charged for services offered.The Board shall be required to provide an estimate of expected expenditure for the financial year at least 3 months before the financial year begins ( 3 months before 1st July each year). These estimates shall be expected to include the remuneration to members and staff of the Service, costs of pension, gratuities and other charges, maintenance costs on buildings, grounds, equipment, training, research, development, insurance, expected future liabilities among other necessary expenditure.
These estimates shall be approved by the Board and presented to the Attorney General for approval. All expenditure within the financial year shall be done in accordance to the estimates.
The Board is expected to ensure that proper accounting records are maintained clearly showing the income, expenditure, assets and liabilities of the Service. Annual audit shall also be carried out and a report made in accordance to the provisions of Public Audit Act.
As per section 28, the Board shall be required to prepare an annual report each financial year which shall be given by the Attorney General to parliament 3 months after the lapse of the financial year (after 30th June). This report shall contain financial statements of the Service, an outline of the activities carried out by the Service, a report on the impact of the functions of the Service, a report on the welfare of the members of the service in matters such as insurance, housing, safety equipment and their working conditions,a report on the gender and regional balance of members of the Service and any other information that may be required.
As provided by section 29 of the BRS Act, one commits an offence which if found guilty can be fined up to Kenya Shillings Five Hundred Thousand or can be sentenced to imprisonmentfor a term of up to 3 years or both the fine and imprisonment ifthe persondoes any of the following acts:
One can comfortably say that several improvements have been seen in the registration ofCompanies and businesses names following the coming into effect of the BRS Act. These include:
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