17 March 2014

Kenya: Registrar Risks Sanction Over China Rail Company

MPs have threatened to take action against the Registrar of Companies Bernice Gachegu for delaying to deregister a Kenyan company that bears name to a Chinese firm.

The China Roads and Bridges Corporation Kenya Ltd is not the China Roads and Bridges Corporation that was awarded the Sh447 billion tender to construct the standard gauge railway.

The members of the National Assembly Committee on Public Investments said they will be forced to introduce charges of abuse of office and incompetence against the registrar.

They said she assured the MPs she would delist the company when she appeared before the committee in February. The MPs said Gachegu is "playing tricks" three months after the existence of CRBC-Kenya was brought to light.

The committee chaired by Eldas MP Adan Keynan is probing the rail project's procurement process and economic viability.

CRBC-Kenya is owned by two Kenyans Peter Maingi Gatere and Leonard Mwangi Ndungu with an office in Westlands. The memorandum and articles of association are missing from the Kenyan firm's registration documents at the registrar's office. With the missing documents, it will be difficult to know the nature of work and undertaking done by the Kenyan firm.

Committee vice chairman Kimani Ichung'wah, the Kikuyu MP, told the registrar to take personal responsibility for the confusion.

"There must have been deliberate efforts by someone in your office to hide the file after the company's existence was detected. Who is covering it up? The buck stops at your office," he said.

Kiminini MP Chris Wamalwa said the "double registration" is suspect and raises uncertainty over which company won the tender.

"The registrar should tell Kenyans what she knows about the shady company. She has developed cold feet in striking off this firm from the list of registered companies, raising speculation that it could be the one that was awarded the tender through the back door," he said.

Mandera North MP Mohamed Noor said Gachegu is exhibiting incompetence in her management of the office even after the 2009 automation of information.

A computer search quickly scans prospective company owners and prevents the registration of companies with similar names.

"There is something wrong with your office. How did a company that has no memorandum and articles of association get registered under your watch?" It is not possible under the law regulating companies," said Noor.

Last week, the committee members were taken aback at revelations from the registrar that the Chinese firm that won the award has been on a loss-making streak for the last 25 years, according to its audited accounts for the years 1987 to 2012. This revelation dents the firm's credibility and ability to complete the project.

The registrar told the committee that the company recently paid a penalty of Sh61,700 for the period it had defaulted in filing its audited accounts.

Wamalwa said the registrar failed to act without delay even after being prompted by the committee in February. "Gachegu has not exhibited the required commitment in dealing with the matter," said Wamalwa.

The Companies' Act proscribes registration of entities bearing similar names but the Kenyan firm was registered in 2008, 24 years after the registration of the Chinese company.

Gachegu said that the double registration was inadvertent but admitted it could have been an inside job to hide the identity of the CRBC-Kenya by removing the documents. She said that she has written to the CID to launch investigations into the disappearance. She said her request was handled promptly with CID officer John Kuria assigned the case.

The registrar told the committee that her office wrote to the company in January this year requiring it to provide a copy of the document but had not responded.

This prompted another letter to Gakiri Moraa and Company advocates, the lawyers who incorporated the company and the company secretary to establish the identity of their clients and supply copies of memorandum and articles of association and any other relevant document.

The committee is also expected to write to the Kenya Bankers Association and Credit Reference Bureau to determine what CRBC- Kenya limited is engaged in before retreating to wrote the report.

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