ADVOKS GLOBAL · KENYA
Banking Act
9. Amalgamations and transfers of assets and liabilities
Edition: 2024-12-27 · In force
9. Amalgamations and transfers of assets and liabilities
(1)No amalgamation or arrangement which involves an institution as one of the principal parties to the relevant transaction, and no arrangement for the transfer of all or any part of the assets and liabilities of an institution to another person, shall have legal force except with the prior written approval of the Cabinet Secretary.(2)The Cabinet Secretary may grant his approval under subsection (1) if—(a)he is satisfied that the transaction in question will not be detrimental to the public interest;(b)in the case of an amalgamation, the amalgamation is of institutions only; or(c)in the case of a transfer of assets and liabilities which entails the transfer by the transferor institution of the whole or any part of its business as an institution, such transfer is effected to another institution approved by the Cabinet Secretary for the purpose of the said transfer.(3)Upon the coming into effect of a transaction effecting the amalgamation or acquisition of one institution by another institution, or effecting the transfer of all or part of the assets and liabilities of one financial institution to another institution pursuant to this section—(a)all the assets and liabilities of the amalgamating institutions or, in the case of a transfer of assets and liabilities, those assets and liabilities of the transferor institution that are transferred in terms of the transaction shall vest in and become binding upon the amalgamated institution or, as the case may be, the receiving institution;(b)the amalgamated institutions or, in the case of the transfer of assets and liabilities, the receiving institution shall have the same rights and be subject to the same obligations as those which the amalgamating institution or, as the case may be, the transferor institution may have had or to which they or it may have been subject immediately before the amalgamation or transfer;(c)all agreements, appointments, transactions and documents entered into, made, drawn up or executed with, by or in favour of any of the amalgamating institutions or, as the case may be, the transferor institution and in force immediately prior to the amalgamation or transfer, but excluding such agreements, appointments, transactions and documents that, by virtue of the terms and conditions of the amalgamation or transfer, are not to be retained in force, shall remain in full force and effect and shall be construed for all purposes as if they had been entered into, made, drawn up or executed with, by or in favour of the amalgamated institution or, as the case may be, the receiving institution or person to whom the assets and liabilities in question are transferred; and(d)any bond, pledge, guarantee or instrument to secure future advances, facilities or services by any of the amalgamating institutions or, as the case may be, by the transferor institution, which was in force immediately prior to the amalgamation or transfer, shall remain of full force and effect and shall be construed as a bond, pledge, guarantee or instrument given to or in favour of the amalgamated institution or, as the case may be, the receiving institution or person to whom such assets and liabilities are transferred, as security for future advances, facilities or services by that financial institution or person except where, in the case of such transfer, any obligation to provide such advances, facilities or services is not included in the transfer.(4)Any amalgamation or arrangement or any arrangement for the transfer of assets and liabilities, shall be subject to—(a)confirmation at a general meeting of shareholders of each of the institutions concerned; or(b)in the case of a transaction effecting the transfer of assets and liabilities of one institution to another institution, to confirmation at a general meeting of shareholders of the transferor institution and the receiving institution and the notice convening such a meeting shall contain or have attached to it the terms and conditions or the relevant agreement or arrangement.(5)Notice of the passing of the resolution confirming any amalgamation or arrangement, or any arrangement for the transfer of assets and liabilities, together with a copy of such resolution and the terms and conditions of the relevant agreement or arrangement, duly certified by the chairperson of the meeting at which such resolution was passed and by the secretary of the institution concerned shall be sent to the Central Bank by each of the institutions involved and after receipt of such notices from all the parties to the relevant agreement or arrangement, the Central Bank shall publish those notices.(6)Upon the publication by the Central Bank of the notices referred to in subsection (5)—(a)of any amalgamation of two or more institutions, the licences of each of the amalgamating institutions shall be deemed to be cancelled and shall be withdrawn by the Central Bank, and on payment by the resulting institution of the prescribed licence fee, the Central Bank shall register such institution subject mutatis mutandis to the provisions of section 5 as an institution; or(b)of any arrangement for the transfer of all the assets and liabilities of an institution, the licence of such institution shall be deemed to be cancelled and shall be withdrawn by the Central Bank.(7)Upon the licensing of an institution pursuant to subsection (6), the Central Bank shall issue a licence to the institution.(8)The Registrar of Companies and the Registrar of Titles, and every officer or person in charge of a deed registry or any other relevant office shall, if in his office or in any register under his control—(a)there is registered any title to property belonging to, or any bond or other right in favour of, or any appointment of or by; or(b)there is registered any share, stock, debenture or other marketable security in favour of; or(c)there has been issued any licence to or in favour of, any amalgamating or transferor institution, and if satisfied—(i)that the Cabinet Secretary has approved the amalgamation or transfer pursuant to subsection (1); and(ii)that such amalgamation or transfer has been duly effected,and upon production to him of any relevant deed, bond, share, stock, debenture, certificate, letter of appointment, licence or other document, make such endorsements thereon and effect such alterations in his registers as may be necessary to record the transfer of the relevant property, bond or other right, share, stock, debenture, marketable security, letter of appointment or licence and of any rights thereunder to the resulting institution or, as the case may be, to the receiving institution.(9)No transfer fees, stamp duty, registration fees, licence duty or other charges shall be payable in respect of—(a)a transfer of assets and liabilities under subsection (3); or(b)any endorsement or alteration made to record such transfer, upon submission to the Registrar of Companies, Registrar of Titles or any other person referred to in subsection (8).(10)The provisions of this section shall not affect the rights of any creditor or any institution which has amalgamated with or transferred all its assets and liabilities to any other institution or taken over all the assets and liabilities of any other institution, except to the extent provided in this section.(11)In this section—"amalgamation institutions" means the institutions contemplating effecting an amalgamation;"receiving institution" means the institution to which assets and liabilities are transferred through a transaction effected under this section;"resulting institution" means the institution resulting from an amalgamation effected under this section;"transferor institution" means the institution which transfers its assets and liabilities to a receiving institution.