Special Resolution (Kenya)

A Special Resolution in Kenya records the decisions taken by a company's directors or members and authorises the resulting actions.

Special resolutions are reserved for fundamental corporate decisions that affect the constitutional framework of the company or its members' rights — decisions of such significance that the legislature has determined they should require a supermajority rather than a bare majority. The categories of company action requiring a special resolution under the Companies Act No. 17 of 2015 include: amending the company's articles of association (Section 36); changing the company name (Section 51); re-registering a private company as a public company or vice versa (Sections 94 and 97); reducing the company's share capital (Section 407); authorising the purchase by the company of its own shares (Section 426); approving a scheme of arrangement or reconstruction under Section 723; commencing members' voluntary winding up under Section 810; and disapplying statutory pre-emption rights on the issue of equity securities.

Section 117 of the Companies Act No. 17 of 2015 prescribes the notice requirements for a meeting at which a special resolution is to be proposed. At least 21 days' written notice must be given to all members entitled to attend and vote, and the notice must specify the intention to propose the resolution as a special resolution. If a shorter notice period is accepted by 95% in nominal value of members entitled to vote, the shorter notice is valid under Section 283(6) of the Act. A special resolution proposed and passed without proper notice is void and unenforceable, and may be challenged before the High Court of Kenya by any aggrieved member.

Once passed, a special resolution must be filed with the Business Registration Service (BRS) within 14 days of the date it is passed, accompanied by the prescribed BRS filing fee. Section 120 of the Companies Act No. 17 of 2015 requires the company to lodge a copy of every special resolution with the Registrar of Companies. Failure to file within the prescribed period renders the company and its officers liable to a default fine under the Act. The BRS maintains the public register of companies and resolutions on eCitizen, Kenya's integrated government services platform.

For listed companies, special resolutions must also comply with the Capital Markets Act Cap. 485A, the Nairobi Securities Exchange (NSE) Listing Rules, and the Capital Markets Authority (CMA) Regulations. The CMA may require specific disclosures, shareholder approvals, or regulatory consent for special resolutions that affect listed company capital structures, related-party transactions, or corporate actions. The Capital Markets (Conduct of Business) (Market Intermediaries) Regulations 2011 and the CMA Corporate Governance Guidelines also impose additional requirements on the conduct of general meetings of listed companies.

A special resolution must be distinguished from an ordinary resolution (simple majority under Section 115 of the Companies Act), a written resolution (passed by the required majority in writing without a meeting under Section 288), and a board resolution (passed by the directors). The legal effect of each type of resolution differs significantly, and using the wrong type of resolution for a corporate action can render the action void under Kenyan company law.

A Special Resolution in Kenya is required whenever the Companies Act No. 17 of 2015 or the company's articles of association mandates a 75% supermajority decision of shareholders, and several circumstances trigger this requirement routinely.

A Special Resolution is required to amend the company's articles of association under Section 36 of the Companies Act No. 17 of 2015. Any change to the constitutional document of the company — including changes to share classes, dividend rights, voting rights, transfer restrictions, quorum requirements, or director appointment powers — must be authorised by special resolution.

A Special Resolution is required to change the company's registered name under Section 51 of the Companies Act. The BRS will not update the company's registered name without a certified copy of the special resolution approving the change. The resolution must be filed with the BRS within 14 days and the amended certificate of incorporation will reflect the new name.

A Special Resolution is required to commence a members' voluntary winding up of the company under Section 810 of the Companies Act No. 17 of 2015. The winding up declaration confirms that the company is solvent and can pay all its debts within 12 months. The Insolvency Act No. 18 of 2015 works in conjunction with the Companies Act for winding up procedures.

A Special Resolution is required to reduce the company's share capital under Section 407 of the Companies Act, subject to court confirmation by the High Court of Kenya under Section 411. A capital reduction may be used to cancel paid-up capital that is lost or unrepresented by available assets, or to return surplus capital to shareholders.

A Special Resolution is required to re-register a private company as a public company (Section 94) or to convert a public company back to a private company (Section 97) under the Companies Act No. 17 of 2015.

A Special Resolution is needed to disapply the statutory pre-emption rights of existing shareholders under Section 390 of the Companies Act when the company proposes to issue new shares for cash to persons other than existing shareholders.

A Special Resolution is required when a listed company on the Nairobi Securities Exchange (NSE) proposes a major corporate transaction — such as a scheme of arrangement, merger, or acquisition requiring CMA approval — where the Capital Markets Authority regulations mandate shareholder approval by special resolution.

A valid and legally effective Special Resolution of a company in Kenya under the Companies Act No. 17 of 2015 must include the following essential elements.

Company Identification: The full registered name of the company exactly as it appears on the BRS certificate of incorporation; the company's Business Registration Service (BRS) company number (PIN/registration number); the company type (private limited, public limited, or other); and the registered address of the company.

General Meeting Details: The type of general meeting at which the resolution was passed — Annual General Meeting (AGM) or Extraordinary General Meeting (EGM) — and the date, time, and place of the meeting. The notice period of at least 21 days required by Section 117 of the Companies Act No. 17 of 2015 (or confirmation of 95% short notice consent under Section 283(6)) should be confirmed. Where the resolution is passed as a written resolution without a meeting, Section 288 of the Act applies and the document should reflect this.

Quorum Confirmation: Confirmation that a quorum was present at the meeting as required by the company's articles of association. Under Table A of the Companies Act No. 17 of 2015, the default quorum for a general meeting is two members present in person or by proxy (or one member for a single-member company).

Resolution Text: The exact wording of the resolution, clearly introduced as a Special Resolution and stating the specific corporate action authorised. The resolution text must be precise and unambiguous — for example, a resolution to amend the articles must either set out the amended text or clearly identify the specific articles being added, deleted, or substituted.

Voting Outcome: Confirmation that the resolution was passed by not less than 75% of the votes cast by members entitled to vote under Section 116 of the Companies Act No. 17 of 2015, including: the number of votes cast in favour; the number of votes cast against; the number of abstentions; and the percentage in favour. For a show of hands vote or a poll vote, the method of voting should be recorded.

Members Present and Votes: A list or summary of members present in person and by proxy, the number of shares held by each, and the total voting rights exercised. The register of members maintained under Section 93 of the Companies Act No. 17 of 2015 should be consistent with the voting record.

Chairperson's Signature and Declaration: The signature of the chairperson of the meeting (or the person designated by the articles to chair general meetings) and a declaration that the resolution was duly passed as a special resolution. The chairperson's declaration under Section 116(5) of the Act that a resolution is a special resolution is conclusive evidence unless a poll is demanded.

BRS Filing Obligation: A note confirming the obligation to file a certified copy of the special resolution with the Business Registration Service (BRS) within 14 days of the date passed, as required by Section 120 of the Companies Act No. 17 of 2015, together with the prescribed BRS filing fee payable on eCitizen.

Attachments: Where the special resolution amends the articles, a copy of the amended articles (or the relevant extracts) should be annexed to the resolution for filing with the BRS. For a capital reduction special resolution, the solvency declaration and the application to the High Court of Kenya for confirmation are required annexures.

Forms-legal.com provides this Kenya Special Resolution template for companies navigating standard BRS filing requirements. Complex special resolutions involving capital reductions, listed company corporate actions, or schemes of arrangement under the Companies Act No. 17 of 2015 should be prepared with the assistance of an advocate admitted to the Roll of Advocates of the Law Society of Kenya (LSK) with corporate law expertise.