Legal

 Assessing progress: A Look at Kenya’s National Monitoring and Evaluation Policy

Monitoring and Evaluation (M&E) is critical for the achievement of the country’s development goals. It provides information on implementation progress of a programme/project and the extent to which an intervention is realising its intended results. M&E thus provides important information in a continuous learning process

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Tax abandonment review through a breakdown of London Distillers’ case

A Treasury directive that would have required London Distillers (K) Limited (LDK) to only pay Ksh. 80 million of a Ksh. 517 million tax claim has been overturned by the High Court. This is because a Kenya Revenue Authority commissioner is the only one who

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Karua mulls over petitioning Supreme Court decision at the East African Court of Justice

The Supreme Court of Kenya on Monday, September 5, 2022, upheld the election of Dr William Ruto as president, dismissing Azimio la Umoja’s petition, after finding no discrepancies in the vote tallies with no credible evidence that the IEBC computer systems and transmission network had

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At a glance – Issues before the Supreme Court for determination

Outcome 1 – Presidential election upheld If the Supreme Court issues a ruling that declares the presidential election as valid, the President-elect will be sworn in on the first Tuesday, 7 days from when the court issues its ruling –  September 13, 2022. Outcome 2

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It’s time to think of amending the law on presidential petition timelines

The Supreme Court has the original jurisdiction to hear and determine any petition challenging the election of a president.  Article 140 of the Constitution of Kenya provides that any person may file a petition with the Supreme Court within seven days following the declaration of

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Legal insights after the resurfacing of Maina Kiai’s precedent case following presidential results announcement

The famous Independent Electoral & Boundaries Commission v Maina Kiai & 5 Others [2017] eKLR, ‘Maina Kiai case’ revolutionised the electoral process. The case upheld that the results declared at the polling station are not provisional, but final and therefore cannot be altered by the

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Supreme Court’s Ruling on Sonko breathes new life to Chapter Six of the Constitution

The Supreme Court dealt a final blow to Mike Sonko’s stab at the Mombasa gubernatorial race when it dismissed his appeal concerning his impeachment from the office of the Governor of Nairobi City County. In the shortened version of its decision, the Supreme Court noted

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Insurance Regulatory Authority to step in for claims compensation

This week, Justice George Odunga, sitting at the High Court in Machakos, gave a landmark ruling in a case that involved Invesco Assurance “Invesco”, the Insurance Regulatory Authority and the Attorney General. The petitioners and insured parties, sued the insurance regulator and the Attorney General

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Kenyans shoulder a heavy burden in the largest Public-Private Partnership project

The Public Investments Committee of the National Assembly has called upon the Ethics and Anti-Corruption Commission (EACC) to investigate the Kenya Electricity Transmission Company Limited (KETRACO) management over delays in the construction of a transmission line to connect the Lake Turkana Wind Power plant to

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Enhancing telecommunication interoperability in Kenya: A Peek at Draft Interconnection Regulations, 2022

The draft  Kenya Information and Communications Act (Interconnection) Regulations form part of a series of features highlighting the salient details of the four draft regulations published by the Ministry of ICT.  Why is it important At its core, the draft Interconnection Regulations have been developed

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Proposed Regulations on Share Buybacks under the draft Capital Markets (Securities)(Public Offers Listings and Disclosure) Regulations, 2022

The Capital Markets Authority (CMA) has published draft rules that will, among other things, provide for share buybacks by listed companies in Kenya. Despite the Companies Act, 2015, introducing the concept of share buyback in the country, the CMA expressed concerns that the move could

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Recognising the youth during World Intellectual Property Day and what recordation entails for importers

The World Intellectual Property Day is observed annually on April 26. Since the year 2000, the day is celebrated to raise awareness of the impact patents, copyright, trademarks and design have on our daily life. Intellectual Property (IP) rights are used to encourage innovation and

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Data Commissioner calls for public comments on draft Alternative Dispute Resolution framework

The Office of the Data Protection Commissioner (ODPC) has called for comments from the public on its first draft Alternative Dispute Resolution (ADR) framework for data protection disputes.  The ADR, in the context of the framework, is a voluntary process of settling data protection disputes

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Proposed EU Data Act and possible impact of the rules

On February 23, the European Commission proposed new rules on who can use and access data generated in the EU across all economic sectors. These rules would be contained in the proposed Data Act. According to the press release, the proposal for the Data Act

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Kenyan Parliament is mulling over proposed law changes seeking to reduce protection of forests

The Kenyan Parliament is currently reviewing an amendment proposal to the Forest Conservation and Management Act which gives the Kenya Forestry Services (KFS)  authority over boundaries and excisions in state forests. The Forest Conservation and Management Amendment Bill 2021 seeks to repeal Section 34 of

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Highlights of the Political Parties (Amendment) Bill, 2021

On Thursday, President Uhuru Kenyatta signed into law the Political Parties (Amendment) Bill, 2021 (“Amendment Act”). Following an acrimonious debate in the National Assembly, the Senate on Wednesday, January 26,  passed the Political Parties (Amendment) Bill, 2021, without any amendments. The new law now sets

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Key tax changes to look out for in 2022

On January 1, 2022, several key tax amendments contained in the Finance Act, 2021 (the Act) took effect. We take a look at these changes and the likely impact on taxpayers. Requirement for multinational enterprises to file returns on activities in other jurisdictions An ultimate

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The year in review: Highlights on key legislative interventions that impacted the private sector

Several legislative interventions that have affected the private sector came into force in 2021. As the year draws to a close, we look back at some of these interventions and their resultant impact. The Finance Act, 2021 (the Finance Act) exempted resident persons from Digital

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Another contest on the way in new anti-money laundering Bill

The balance between the protection of the right to privacy and enforcing anti-money laundering laws will once again come to the fore as Parliament works to seal loopholes in the current legal framework.  Kenya is considered one of the major money laundering jurisdictions in the

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The Huduma Bill 2020; Impacts on Private Sector Enterprises

Businesses and the Government will have a symbiotic relationship in the use of citizens’ data under changes to the law proposed in the Huduma Bill, 2020.  The Bill is among those President Uhuru Kenyatta asked Parliament to expedite and conclude in his State of the

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Data Protection Act turns two years but more needs to be done to assure Kenyans

The Data Protection Act, 2019, (the DPA) was assented to by President Uhuru Kenyatta on November 8, 2019, and came into effect on November 25, 2019. This month marks the 2nd year anniversary since the DPA came into force. As Kenyans become savvier about their

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A sneak peek at China’s Personal Information Protection Law (PIPL)

On Monday, November 1, 2021, China’s Personal Information Protection Law (PIPL) took effect, months after it was promulgated by the Standing Committee of China’s National People’s Congress. This is China’s first comprehensive law in the personal information protection area and it is based on the

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Hope for Improved ICT Infrastructure after High Court Orders Implementation of Initiatives to Aid Access to Justice

Information, Communication and Technology (ICT) has for years now been an enabler of Kenya’s economy and development. When the coronavirus pandemic hit in 2020, the government looked at ICT to provide various solutions given that the Ministry of Health had laid out various measures including

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What next for Huduma Cards after court calls for data protection impact assessment

Data security came to play at the High Court in Nairobi on Thursday, October 14, 2021, after Justice Jairus Ngaah declared that the government’s decision of November 18, 2020, to roll out Huduma Cards was illegal. The judge said the government had not adhered to

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Meetings in the Metaverse? The Endless Possibilities in the Companies (Amendment) Act, 2020

The term Metaverse is used to describe a virtual space within digital environments such as online games, social media, and virtual reality. It is a network of always-on virtual environments in which people can interact with one another and digital objects while operating virtual representations

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Mergers & Acquisitions: Lessons to Learn From Rubis And Gulf Energy Dispute

Gulf Energy and Rubis Energy are battling in court over privacy and security issues that arose after an acquisition. Rubis Energy acquired KenolKobil in 2019, a transaction that enabled it to acquire Gulf Energy. In the transaction, Gulf Energy transferred all its ICT assets including

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Report on the ICT Practitioners’ Bill, 2020

The Information Communication Technology Practitioners Bill (National Assembly Bill No. 38 of 2020) seeks to establish a legal framework for the training, registration, licensing, practice and standards of Information, Communication Technology (ICT) professionals in Kenya. The Bill sponsored by the Hon. Godfrey Osotsi, M. P,

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Post BREXIT Data Partnerships: Kenya’s First ‘Adequacy Partnership/ Decision’?

The United Kingdom on Thursday announced their Post-Brexit approach to international data transfers which includes future partnerships with Kenya. India, Brazil and Indonesia are also in this priority list. The first territories which it will prioritise striking ‘data adequacy’ partnerships will be the United States,

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Court of Appeal stops Reggae

Today a seven-member Court of Appeal bench dismissed the BBI appeal. The seven judges are Daniel Musinga, Fatuma Sichale, Gatembu Kairu, Hannah Okwengu, Roselyn Nambuye, Patrick Kiage and Francis Tuiyott. The judges took turns to read their judgments which were upholding the High Court’s decision.

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The draft Capital Markets (Investment Based Crowdfunding) Regulations, 2021.

The Cabinet Secretary to the National Treasury and Planning is proposing to make the Capital Markets (Investment Based Crowdfunding) Regulations, 2021. The Regulations will apply to investment-based crowdfunding platforms in Kenya. They will also apply to persons who are operating investment-based crowdfunding platforms in Kenya. 

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Highlights of Kenya’s proposed National Addressing Law and Policy

The National Communications Secretariat is currently collecting views on the draft National Addressing Policy and the draft National Addressing Bill, 2021. These two instruments will enable the creation of a National Addressing Framework. This is a framework that will provide for the naming, numbering and

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Highlights of the Business Registration Services Draft Bill

The Business Registration Services has published several business laws amendments bills. They hope the amendments will address the necessary gaps and achieve a coherent legislative framework for these laws. The amendments bills are: The Registration of Business Names (Amendment) Bill,2021. The Insolvency (Amendment) Bill, 2020

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Highlights of the Access to Information Regulations, 2021

Before the promulgation of the Constitution of Kenya 2010, the phrase “Serikali ni siri kali” (Government is a big secret) commonly described the futility encountered in attempts to receive information from public institutions.  Article 35 of the Constitution tore that veil of secrecy as it

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State of the GDPR at 3 and its global effect

As of Tuesday 25 May, it was 5 years of General Data Protection Regulations (GDPR). 3 years since its enforcement and its impact on the world can be felt. The Regulations have elevated the awareness of privacy and data protection from boardrooms to living rooms

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Regulatory Impact Assessment on the Data Protection Regulations

The Office of the Data Protection Commissioner (ODPC) vide a Gazette Notice No. 4697 informed the public that a Regulatory Impact Assessment (RIA) on the proposed Data Protection (Registration of Data Controllers and Data Processors) Regulations, 2021 had been prepared. The aim of the RIA

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Finance Bill, 2021

TAX AMENDMENTS HIGHLIGHTS Introduction: The Finance Bill, 2021 was published on 05th May 2021. The reason for publishing the Bill early, as was the case in 2020, was to comply with the ruling by Justice Winfrida Okwany referencing Petition Number 253 of 2018 where the

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A ruling against Minimum taxes

Earlier this week, the High Court of Kenya vide a ruling in the Constitutional Petition No. E005 of 2021, a case of Stanley Waweru & 3 others (the Petitioners) V National Assembly, the Commissioner General, Kenya Revenue Authority and the Attorney General (the Respondents), paused

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New era – New taxes

The online mode of doing business has brought with it taxation challenges. Kenya along with the rest of the world is moving away from the traditional brick and mortar concept of doing business. Digital technology has enabled businesses to carry on with their trade online.

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New rules for Data Protection

The Officer of the Data Protection Commissioner released Draft Data Protection Regulations earlier this week for public participation. The Regulations comprises: The Data Protection (Compliance and Enforcement) Regulations – The Regulations outline the compliance and enforcement provisions for Data Commissioner, Data Controllers and Data Processors.

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Increasing ease of doing business in Kenya

The Business Laws (Amendment) (No. 2) Act, 2021 (“New Act”) was signed into law on 30th March 2021, thereby coming into effect straightaway. The new Act amends various laws and  is part of the reforms that are aimed at facilitating ease of doing business in

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A win for children and families in Kenya

The Employment (Amendment) Bill, 2019 was signed into law on 30th March 2021. The new Act – Employment (Amendment) Act, 2021 came into force on 15th April 2021. The Act goes a long way in supporting the adoption of children in Kenya. The Act amends

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Business Laws(Amendment) (No. 2), Bill, 2020

The Business Laws (Amendment) Bill (No.2), 2020 seeks to make various amendments to various statutes highlighted as follows:  Clause 2 of the Bill seeks to amend the Law of Contract Act, Cap 23 to eliminate the requirement of a company seal in execution of documents

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What is in the latest BBI Bill?

On the 25th of November, 2020, a newer version of the Constitution of Kenya (Amendment) Bill, 2020 was published by the Government Printers.  The object of this Bill according to its promoters, is to amend the Constitution of Kenya 2010 to address issues arising from

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ICT Practitioner’s Bill: The “Birth of a Profession?”

Hon. Godfrey Otsotsi is back with the Information Communication Technology Practitioners Bill 2020 which has triggered murmurs across Kenya’s technology community. The bill seeks to establish a legal framework for the training, registration, licensing, practice and standards of Information Communication Technology (ICT) professionals in Kenya.

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BBI at a glance: Uniting Kenya through legal and policy reforms

The Steering Committee on the implementation of the Building Bridges Initiative made recommendations on the implementation of the Report, which are structured in the following thematic areas: Constitutional; Legislative; Policy; and Administrative. Proposed Constitutional Reforms Chapter Two on formative aspects of the Republic. This chapter

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Highlights of policy reforms proposed in the BBI report

The Steering Committee made Policy Reforms proposals to effectively implement the recommendations in the BBI report. The Committee was not able to develop the multiple policies, so they developed a set of doctrines as well as policy intervention guides for each identified priority policy area.

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A LOOK AT THE PROPOSED BBI LEGISLATIVE REFORMS

The Building Bridges Steering Committee made recommendations on the implementation of the Report and they drafted several amendment bills. Herein below we provide a brief summary of the laws proposed for amendments and analysis of the same:  1.The Public Finance Laws (Amendment) Bill, 2020 The Public Finance Laws (Amendment) Bill, 2020

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What next for the Building Bridges Initiative? The road to a referendum.

In our estimation, the soonest the BBI Bill will be back to Parliament is June 2021. With General Elections scheduled for 2022, elected leaders will already be in campaign mode and BBI is likely to be second priority for those whose priority will be to be re-elected.

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A look into the Data Commissioner’s in tray

With the government having announced plans to proceed with the Huduma Number project, the Data Commissioner’s role will be to ensure that the process is in compliance with the data protection Act while building public confidence in the whole system.

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Kiggundu v Diamond Trust bank (U) Limited & Another (Misc App No. 654 of 2020) [2020] UGCOMMC 32

The head of the Commercial Court Justice Henry Peter Adonyo on Wednesday, 7thOctober 2020 ruled that the credit facilities DTB-Kenya offered to Kiggundu are illegal since it is not licenced by Bank of Uganda “The act of DTB-Kenya in conducting financial business is licenced in Kenya and it therefore illegally offered the facilities in Uganda. Consequently, this application is allowed with costs,” Adonyo ruled

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Lyft nicotine pouches declared illegal in Kenya

The Pharmacy and Poisons Act (the “Poisons Act”) which provides a legal framework for the control of the profession of pharmacy and the trade in drugs and poisons lists nicotine and its salts, as a poison under Part I of the Poisons List which is reserved for sale by or under the supervision of pharmacists only.

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Highlights of the Start Up Bill, 2020 in the Senate

IT WILL PROVIDE A FRAMEWORK TO ENCOURAGE GROWTH,
SUSTAINABLE TECHNOLOGICAL DEVELOPMENT AND NEW
ENTREPRENEURSHIP EMPLOYMENT.

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Highlights: Draft Consumer Protection Guidelines

Communications Authority of Kenya (CA) has released draft consumer protection guidelines for public review and comment. The guidelines are to protect the users and consumers of communications services with regard to the prices, the quality and variety of services.

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The Companies (Amendment) Bill, 2020

Introduction With the COVID-19 pandemic here to stay, corporations are now forced to operate digitally. Early in the year the Capital Markets Authority released a note stating that publicly listed companies are allowed to hold virtual meetings since they cannot host their statutory meetings in

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KRA Finance Act 2020 Stakeholder Awareness

The Kenya Revenue Authority held a Stakeholder Engagement on Thursday, August 13, 2020 to create awareness of the provisions of the Finance Act 2020.

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A walk through if the Income Tax (Digital Services Tax) Draft Regulations, 2020.

A digital marketplace was defined in the Finance Act of 2019 as a platform that enables the direct interaction between buyers and sellers of goods and services through electronic means. This definition covers all types of marketplaces however the challenge is that in some instances despite buyers and sellers meeting through a particular platform no value is transferred for goods and services through the platform an example here is a Facebook page or group where buyers and sellers meet but payments are made through private arrangements. However, Facebook would be liable to pay digital services tax for advertising revenue it generates or if payments for goods and services were made within the platform.

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Proposed Contract Law reforms

After decades of using the English law of contract, Kenya is at the verge of having its own elaborate Law of Contract Act. The existing Act is arguably the shortest Act with 4 sections. Previous attempts to amend it have not been so successful, most notably the recent proposed amendment in the Law of Contract (Amendment) Bill, 2019 sponsored by Hon. Waititu Francis Munyua. The Bill seeks to amend the Act so that in case of a default by the principal borrower, the creditor would first realise the assets of the principal borrower before proceeding to realise the assets of the guarantor. President Uhuru Kenyatta however, sent back the proposed amendment to Parliament with his reservations and the Bill collapsed.

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