ADVOKS GLOBAL · KENYA
The Capital Markets (Collective Investment Schemes) Regulations
100. When a collective investment may be wound up
Edition: 2022-12-31 · In force
100. When a collective investment may be wound up
(1)A collective investment scheme shall not be wound up otherwise than by a court order except under the provisions of these Regulations—(a)unless and until effect may be given in accordance with the provisions relating to winding up given in the Companies Act, to a proposal to wind up the affairs of a company otherwise than by the court, and provided that the Authority shall have first exercised its powers to intervene in the management of the collective investment scheme before an application is made to court for winding up of the collective investment scheme;(b)unless a statement has been prepared and sent or delivered to the Authority in accordance with paragraphs 3(a), 4 and 5 and received by the Authority prior to satisfaction of the condition in paragraph 1 (a).(2)Subject to subregulation (1) and the subsequent provisions of this Regulation, a collective investment scheme shall be wound up under these Regulations if an extraordinary resolution to that effect has been passed; or when the period (if any) fixed for duration of the collective investment scheme by its incorporation documents, expires or the event occurs, on the occurrence of which its instrument of incorporation provides that the collective investment scheme is to be wound up.(3)On or before a notice is given to the Authority in the event of a proposal to wind up the affairs of the collective investment scheme otherwise than by the court, the trustee or board of directors shall commence to make a full enquiry into the collective investment scheme's affairs so as to ascertain whether the scheme will be able to meet all its liabilities (which include contingent and prospective liabilities) and the fund manager shall prepare a statement, which shall reflect the results of such enquiry, and either—(a)confirm that the collective investment scheme will be able to meet all its liabilities within twelve months of the date of the statement; or(b)state that such confirmation cannot be given.(4)The statement referred to in subregulation (3) shall—(a)relate to the collective investment scheme's affairs at the date which must not be more than twenty-one days prior to the date on which notice is given to the Authority; and(b)be approved by the trustee or board of directors and be signed on their behalf by the fund manager, and if it is given under paragraph (a) of subregulation (3) of this Regulation by at least one other director or alternatively be signed by the fund manager and contain a statement signed by the auditor to the effect that in his opinion the enquiry required by subregulation (3) has been properly made and is fairly reflected by the confirmation.(5)Following compliance with subregulation (4), the statement referred to in subregulation (3) must be sent or delivered to the Authority and a copy sent to the custodian.