[1952] EACA 270

# ORIGINAL CIVIL

## Before CONNELL. J.

#### EAST AFRICAN ELECTRIC CO. LTD., Plaintiffs

$\cdot$ $\mathbf{v}$ . $\ldots\, .$

### THE REGISTRAR OF COMPANIES FOR THE COLONY AND PROTECTORATE OF KENYA. Defendant

### Misc Civil Case No. 39 of 1951

Company's change of name—Incorporated outside but registered in Kenya— Application of s. 18 and 20 Companies Ordinance.

The General Electric Company, incorporated in the United Kingdom registered. the required particulars with the Registrar of Companies in Kenya under section 327 Companies Ordinance. The applicants were registered as East African Electric Co. Ltd., and applied under Companies Ordinance section 20 (1) to change their name to East African General Electric Company Limited. The Registrar refused his approval of the change of name on the ground that the proposed change might lead to confusion in the mind of the public between the presence of the two companies.

The unsuccessful applicant moved the Court for a rule absolute by way of mandamus directing the Registrar to approve the change of name.

Held (21-1-52).—The provisions regarding change of name apply to companies incorporated outside but carrying on business in Kenya as well as to companies incorporated in Kenya. Rule nisi discharged.

Harrison for plaintiffs.

Pearson, Crown Counsel, for Registrar of Companies.

RULING.—This application is of general interest and moves the Court to make absolute a rule nisi by way of prerogative writ of mandamus, directing the Registrar of Joint Stock Companies to approve a change of name of a company from the East African Electric Co. Ltd., to East African General Electric Co. Ltd.

The facts are that the General Electric Co. (incorporated in the United Kingdom) registered with the Registrar the particulars relating to the memorandum and articles of association under section 327 of the Companies Ordinance on 20th December, 1950; they were required to do this as they have a place of business in Kenya.

On 4th May, 1951, the applicant company, the majority of whose shares are beneficially held by the South African General Electric Co. Ltd., became registered with the Registrar as East African Electric Co. Ltd. On 3rd July, 1951 they applied under section 20 (1) of the Companies Ordinance to change their name to East African General Electric Co. Ltd. The Registrar refused his approval of the change of name on the ground that the proposed change might lead to confusion in the mind of the public between the names of the two companies mentioned.

Mr. Harrison's main argument in support of the present application is that the Registrar has no power to refuse the change of name requested as sections 18 and 20 of the Companies Ordinance do not apply to the case of a company which is a foreign company which has merely registered particulars in Kenya for such a company is not a company "formed and registered under the Ordinance" as defined by section 2.

The argument is ingenious but from a common sense point of view I find the argument difficult to follow. The heading of Part 13 Companies Ordinance is "Companies incorporated outside the Colony carrying on business within the Colony." Section 326 states that Part 13 applies to "Companies incorporated outside the Colony which have before the commencement of this Ordinance established a place of business within the Colony at the commencement of this Ordinance". Section 327 requires such companies to "deliver to the Registrar for registration" certain documents and other particulars. Section 328 enables such company to hold lands in the Colony as if it were a Company incorporated under the Ordinance. There is a proviso that no such company has power to acquire land in the highlands unless such company is registered in accordance with the provisions of the Ordinance. Section 333 imposes penalties if such a company fails to comply with the provisions of Part 13. Part 4 deals with the registration of changes and section 90 states that the provisions apply to a company (whether a company within the meaning of the Ordinance or not) incorporated outside the Colony which has an established place of business in the Colony. Mr. Harrison would have it that a similar proviso should have been inserted in the case of sections 18 and 20. I should add also that Mr. Harrison also argued that if the Registrar refused to register a name in the case of companies incorporated outside Kenya he would in fact be doing an act preventing a foreign company from carrying on business in Kenya and that such a refusal would be an obvious excess of jurisdiction.

To my mind to say that the provisions regarding change of name apply only to companies incorporated in Kenya and not to those incorporated outside Kenya but carrying on business in Kenya would be a wrong construction of the plain meaning of ordinary words used in sections 18 and 20: the very definitive section commences "unless the context otherwise requires". The context in my view does otherwise require, the material words of sections 18 $(1)$ and $(a)$ being "no company shall be registered by a name which ... is identical with that by which a company in existence is already registered, or so nearly resembles that name as to be calculated to deceive"; and section 20 says "A company may... with the approval of the Registrar ... change its name". These sections in my view can only refer to the cases of any company whether registered in Kenya or any foreign company which has registered the required particulars. To hold otherwise would lead to the absurdity that a foreign-company could insist on copying the exact name of an already registered company and the Registrar would be compelled to register in that name.

I do not propose to deal at length with other arguments raised. Mr. Pearson for the Attorney General in his able argument submitted that "if a power or discretion only, as distinct from a duty, exists, then the prerogative writ of mandamus will not be issued by the Court".

In my view, under the sections quoted the Registrar clearly had a discretion whether to signify his approval to a change of name or not, and this discretion to my mind he exercised judicially.

The rule nisi will be discharged.