Hi folks,
Mr Ali, an advocate at Mohammed & Lethome Advocates, took the time to respond to the legal questions that you had. However, he tried to send the email directly to wikimediaKE@lists.wikimedia.org but he told me that His Yahoo account did not recognise it as a valid email address. He therefore sent me the email below to me privately so that I could forward it to the mailing list. I really don't know how we could sort this out, because it is really important that he gets direct contact with the Wikimedia Kenya members. He is, however, subscribed to the mailing list, and therefore gets updates of what we are discussing.
Date: Thu, 28 Oct 2010 12:50:18 -0700 From: aliyyi2002@yahoo.com Subject: Opinion To: aliyyi2002@yahoo.com; abbasjnr@hotmail.com
Dear all,
I regret my inordinate delay in responding to Mr. Abass' request but wish to highlight the following.
In considering the legal structure suitable to register the Wikimedia Kenya Chapter, several factors have to be put inconsiderations but mainly dependent on the structure that is to be adopted between the office bearers and general members. I will try to analyse briefly the modes that can be used and their suitablity in the circumstances.
From the outset, I need to be corrected - I am made to understand that there will be office bearers and membership to the chapter shall be open to the general public.
(a) Registarion under the Companies Act (Cap 486 Laws of Kenya)
Besides a private company and a public company company which requirements may be in the public domain, Section 10 of the Companies Act provides for registration of unlimited Companies (not having any liability on its member) or limited by guarantee (liability of its members limited by the memorandum to such amount as the members may respectively thereby undertake to contribute to the assets of the company in the event of its being wound up). There are limitaions as to private limited companies as transfer of shares is restricted and is only lited not to more than 50 persons. With public companies there are stringent rules in terms of floatation of shares and there can be no regulation of who can be a member or not as shares are floated in the open market.
From the aforegoing, this mode is unsuitable to register the chapter.
(b) Non-Govenmental Organizaion
NGO'S in Kenya are registered under the Non-Govenmental Organizations Co-ordination Act - Act No. 19 of 1990 and defines the same to mean a private voluntary grouping of individuals or associations, not operated for profit or for other commercial purposes but which have organized themselves nationally or internationally for the benefit of the public at large and for the promotion of social welfare, development charity or research in the areas inclusive of, but not restricted to, health, relief, agriculture, education, industry and the supply of amenities and services.
It is possible to register the Chapter under this Act however the process is cumbersome due to stringent rules on vetting of officials. My only concern is on admission of new members and their role/ say in decison making making which has to be clearly spelt out in the constitution of the organization. My concern is informed on the general knowledge that most NGO's have limitaion on membership which may not be the case in our current scenario Kindly let me have your reactions on the same.
(c) Society
The ideal registration regime should be under the Societies Act (Chapter 108 Laws of Kenya). A society under the Act is defined to includes any club, company, partnership or other association of ten or more persons, whatever its nature or object, established in Kenya or having its headquarters or chief place of business in Kenya, and any branch of a society. The process of registarion is also very slow due to vetting procedure. However I opine that with intervention and/or request by the Wikimedia Foundation to the government the process can be accelerated.
However, it is imperative to note that a society under the law is an amorphous organization and ownership of its immovable properties has to be vested under its trustees.
(d) Trust The trustees incorporation is done under two phases. At first, a Trust Deed has to be registered under the registration of Documents Act after which they are incorporated under the Trustees(Perpetual Succession) Act ending with issuance of certificate of registration by the Minister for Lands.
Regards Ali M. Mohamed
-------------------------------------- Feel free to contact me: Abbas Mahmood Tel: +254722215101 Facebook: abbasjnr@hotmail.com Skype: Abbasjnr Wikimedia Kenya Member
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