Review of the Companies (Beneficial Ownership Information) (Amendment) Regulations, 2023

On 19th October 2023, the Attorney General via Kenya Gazette supplement number 198 and Legal Notice no. 162, gazetted the Companies (Beneficial Ownership Information) (Amendment) Regulations, 2023 which introduces a beneficial owner’s search fee of Ksh. 600 for all private companies registered in Kenya. The 2023 amendment regulations provide for the following key amendments:

  1. Disclosure of Beneficial Owners by the Company

A company shall not use or disclose any information about its beneficial owners except:

  1. For communicating with the beneficial owner concerned;
  2. In order to comply with any requirement of the Regulations;
  3. In order to comply with the Proceeds of Crime and Anti-Money Laundering Act, 2009 and its Regulations;
  4. In order to comply with the Prevention of Terrorism Act, 2012 and its Regulations; or
  5. In order to comply with a court order.

Notwithstanding provisions a-e above, information relating to a beneficial owner may be disclosed by a company:

  1. With written consent of the beneficial owner;
  2. To the procuring entity, where the company participates in public procurement and assets disposal under the Public Procurement and Asset Disposal Act, 2015;
  3. To the contracting authority, where the company participates in a public private partnership arrangement under the Public Private Partnership Act, 2013; or
  4. To financial institutions for the purposes of entering into a relationship with the institution.

B. Disclosure of Beneficial Owners by the Registrar

The regulation provides that the Registrar may:

  1. Use information relating to a beneficial owner for the purpose of communicating with the beneficial owner;
  2. Upon a WRITTEN REQUEST or any other means the Registrar may specify, make available the beneficial ownership information of a company, to:
    • a competent authority;
    • The Public Procurement Regulatory Authority;
    • The Public Private Partnerships Committee;
    • Supervisors or regulators of financial institutions and designated non-financial businesses and professionals; or
    • Any government agency in charge of implementing anti money laundering and countering financing of terrorism measures.
  3. Upon receipt of a Beneficial Ownership Search Request Form (BOF6) or as the Registrar may specify and on payment of the Ksh. 600 fees stipulated in the Second Schedule of the regulations, disclose beneficial ownership information of a company, in Beneficial Ownership Official Search Report (Form BOF7), other than protected personal identifiable information, to:
    • Financial institutions;
    • Designated non-financial businesses or professionals; or
  4. Disclose beneficial ownership information of a company pursuant to a court order.

It is worth noting that by the term designated non-financial businesses or professionals, the regulation means:

casinos (including internet casinos), real estate agencies, entities dealing in precious metals, entities dealing in precious stones, accountants who are sole practitioners, partners or employees within professional firms, non-governmental organizations, trust and company service providers, advocates, notaries and other independent legal professionals who are sole practitioners, partners or employees within professional firms and such other business or profession in which the risk of money laundering, financing of terrorism and proliferation financing exists as the Cabinet Secretary may, on the advice of the Financial Reporting Centre, declare.

It is now left to see how the Business Registration Service (BRS) will implement these new regulations even after publishing a Guide on Disclosure of Beneficial Ownership Information.

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