Restoration Of A Deregistered Company To The Register Of Companies

Restoration of a company is bringing back a deregistered/struck off company to the register of companies. It involves a legal process and must comply with the Companies Act and the regulations set by the Registrar of Companies.   

When a company has been struck off, it may be possible to make an application to the court to bring back that company to the register of companies by court order, pursuant to the provisions of Section 917 of the Companies Act 2015.  

Under the Companies Act for any restoration to be successful, six years must not have lapsed after the date of deregistration of the company.  

However, lapse of time limit doesn’t apply in case of the following grounds: - 

• If an application to the Registrar was made under section 912 before the deadline for making such an application.  
• The Registrar refused the application, an application to the Court under this section may be made within twenty-eight days after notice of the Registrar's decision is issued.  
• The purpose of the application is to enable a person bring proceedings against the company for damages for personal injury. 
• Applications for restoration where the dissolution was done under section 894 and section 895.  

Types of restoration of a company. 

1. Court order restoration  
2. Administrative restoration  

Court order restoration  

The application is made at the High court of Kenya. 

When the Court makes an order for restoration, the applicant must deliver a copy of the Court Order to the Registrar to restore the company.  The company is then restored thereafter.  

Grounds for restoration of a company under court order restoration: - 

• A proof that a company that has been struck off the Register under section 894 or 895 of the companies Act (states that the company was carrying on business or in operation at the time of its striking off).  
• six years have not lapsed from the date on which the company was dissolved.  

Administrative restoration  

The claim made on behalf of the company by its former directors or by a majority of them (and any supporting evidence) is made to the registrar of companies and the Attorney General. 

Grounds for administrative restoration are as below: - 

• If the company was struck off the Register under section 894 or 897 of the Companies Act 2015.  
• If the property previously vested in or held on trust for the company has vested in the State under section 905, the Attorney General has signified to the Registrar in writing consent to the company's restoration to the Register. 

Who can apply for the reinstatement of a company to the register? 

Any of the following may make an application for restoration under Section 916(2) 

1. The Attorney General 
2. Former director, member, creditor, manager, trustee, administrator or liquidator of the company at the time of it being struck off the Register or dissolved. 
3. Any person who had a contractual relationship with the company or who had a potential legal claim against the company 
4. Any person who had an interest in land or property in which the company also had an interest, right or obligation 
5. A person with a potential legal claim against the company.   

Once the copy of the Court order, is received by the Registrar on the restoration of the company to the Register it is published in the Kenya Gazette.   

Under Section 919, the effect of an order by the Court for the restoration of the company to the Register is that the company is deemed to have continued in existence as if it had not been dissolved or struck off the Register.  

Restoration of a company with a different name 

The registrar will normally reinstate back a company with the name it had before it was struck off and dissolved.  However, Section 920 of the Companies Act 2015, states that if at the date of restoration, the company’s former name is likely to give the impression that the company is linked with a state organ, county government or any prescribed public authority, the Registrar cannot restore the company with its former name as dictated in Chapter 4 (7) of the Companies Act.  

If the name is no longer available, the court order may state another name by which the company is to be restored. On restoration, a certificate of name change will be issued as if the company had changed its name. 

Alternatively, the company may be restored to the register as if its registered company number is also its name. The company will have 14 days from the date of restoration to pass a resolution to change the name of the company and file Notice of Change of Name (Form CR 15) and Form CR19 on the e-citizen portal. A certificate of change of name will then be issued.  

Failure to change the company name within 14 days of being restored with the number as its name is an offence. The company name change takes effect once the Name change certificate is issued. 

There are costs and penalties involved in restoration of a company especially where the property of the company has vested in the state, the court may direct claimant to meet the costs of the Registrar in connection with the proceedings and Attorney General dealing with the property during dissolution period.