The changing nature of work, driven by technological advancements and evolving work-life dynamics, indeed presents significant challenges and considerations for privacy and data protection laws in the employment and/or office context. Modern businesses indeed operate in a hybrid environment, combining both physical and digital operations. The COVID-19 pandemic accelerated the shift towards digital operations for …

THE ROLE OF TECHNOLOGY VIS A VIS DATA PROTECTION IN THE WORKPLACE Read More »

Climate Change

Prescribing Privacy: Navigating Health Sector Data Protection Introduction The healthcare industry is increasingly reliant on technology, leading to a growing need for data protection. The Data Protection Act, 2019 (DPA) and the forthcoming Digital Health Bill, 2023 bring significant compliance requirements for the health sector. This calls for strict adherence to data protection laws, making …

Prescribing Privacy: Navigating Health Sector Data Protection Read More »

OVERVIEW To Wind up a Company, to shut down or dissolve a limited Company is commonly referred to as voluntary Winding Up or De-registration of a Limited Liability Company. Liquidation is a collective insolvency process leading to the end of the company’s existence (dissolution). In the previous legislation, this process was known as winding-up. The …

Dissolution Of Companies: Striking Off Read More »

Every employer needs to adhere to each and every aspect of redundancy procedures, to avoid exposing themselves to any adverse claims. Further, being that redundancy is inevitable due to change in market and business needs, then a notices of the proposed redundancy and consultations stemming from the notice should prove that a redundancy is justified.

Introduction The Sexual Offences Act, No.3 of 2006 was enacted to remedy the shortcomings of the now repealed sections of the Penal Code and which were seen to be too lenient to sexual offenders upon sentencing. Additionally, the Act introduced mandatory minimum sentences for sexual offences in a bid to reduce the incidences of sexual …

Right to Equality and Dignity of offenders Vis-à-vis mandatory minimum sentences under the Sexual Offences Act; An Analysis of Justice G.V. Odunga’s decision inMaingi & 5 others v Director of Public Prosecutions & another [2022] KEHC 13118 (KLR) Read More »

The emergence of new regulations in the field of personal data protection laws and regulations such as the Data Protection Act, No. 24 of 2019 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, requires organizations, through their HR departments working together with the office of the Data Protection Officer (“DPO”) created under Section 24 of the DPA, to pay more attention to the way they process the data of candidates, employees and former employees.

…the liability of directors and/or shareholders of a limited liability company in the event of an insolvent winding up is significant. The Companies Act provides for the liabilities of directors, and the courts may lift the veil of incorporation to hold directors and/or shareholders liable for the debts of the company…

Introduction The principle of a bona fide Purchaser for value without notice has long been the preferred defense of a purchaser who finds him/herself in ownership wrangles where there are challenges to the Certificate of Title held by him or her. Courts have variously held innocent such a purchaser, where it is demonstrated that indeed …

A Bona fide Purchaser for Value Without Notice: The Demand for Extensive Due Diligence in Property Purchase Read More »

While access to justice is an essential pillar of the Constituion of Kenya, 2010 and statutorily set timelines for courts to make decisions are essential towards achieving this, it is essential for litigants and judicial officers to be weary and stick to the set timelines. It is also essential for an appellate court to consider the circumstances on a case-by-case basis when faced with the questions of whether decisions are null and lacking force of law for the sole reason of being delivered outside statutory set timelines.

Introduction Article 31 of the Constitution falls squarely within the ambit of the mandate of the Data Commissioner in as far as the protection of the right to privacy is concerned. The Application and/or enforcement of this Constitutional right will appear to fall squarely at the door of the Office of the Data Protection Commissioner. …

Can the Data Commissioner Interpret the Constitution in as far the Violation of the Right to Privacy is Concerned: An analysis of Mercy Mwikali Mwanzia v Rhodes Constitutional Petition No. E115[2023] KEHC 2688 (KLR) Read More »

The Liquidation Process The Insolvency Act, Companies Act and the Employment Act are the guiding statutes in the process of liquidation (“winding up”) a company in Kenya. The Insolvency Act sets out that a company may wind up its operations either voluntarily or by an order of the court. Members of a company or creditors …

Company Liquidation & The Ripple of Liabilities Read More »

The Constitution of Kenya states that all land belongs to the people of Kenya, however, the right to own land is not absolute as the state reserves the right to recall on such right subject to the provisions of the law. This right to use and own land has certain caveats and adverse possession is …

ACQUISITION OF LAND BY ADVERSE POSSESSION Read More »

How can lawyers ensure that their use of AI tools does not compromise the confidential and private information entrusted to them by their clients?

A lease is a document creating an interest in land for a fixed period.

Introduction Alternative Dispute Resolution (ADR) is the procedure voluntarily used by parties to resolve a dispute or address issues in controversy. Article 159 of the Constitution of Kenya, 2010, provides that alternative forms of dispute resolution include reconciliation, mediation, and arbitration. If further provides that traditional dispute resolution mechanisms shall as well be promoted if …

COURT ANNEXED MEDIATION Read More »

The Supreme Court of Kenya has addressed itself twice now on issues of the right to housing enshrined in Article 43 of the Constitution of Kenya 2010. In both instances, the court has given a decision relating to evictions and the progressive realization of socio-economic rights. On 11th January 2021, the Supreme Court of Kenya …

No Place to Call Home: Navigating the Legal Landscape of Evictions in Kenya Read More »

Constructive dismissal occurs when an employee resigns because their employer’s behavior has become so intolerable or made life so difficult that the employee has no choice but to resign.

Introduction A non-performing loan is a credit facility that is in default, which means that the borrower has failed to make payments according to the agreed terms. Section 44A (5) (c) of the Banking Act, provides that: “… a loan becomes non-performing in such manner as may, from time to time, be stipulated in guidelines …

Non-Performing Loans & Applications for Injunctive Reliefs Read More »

Introduction The overriding and undeniable position in law is that when it comes to children matters, the best interests of the child will always trump over all other rights that come into contact and or conflict with these interests. However, where a court of law is called upon to balance the best interest of the …

BALANCING THE BEST INTERESTS OF THE CHILD AND PARENTAL RIGHTS AND RESPONSIBILITIES; THE SUPREME COURT DECISION IN PETITION NO. 2 OF 2022 Read More »

Introduction & Background After the Court of Appeal in Civil Appeal No.656 of 2022 The National Social Security Fund Board of Trustees vs Kenya Tea Growers Association & 14 Others held that the National Social Security Fund Act, 2013 (the “Act”) is constitutional it is pertinent that both employers and employees get to understand what …

 A Preview of the National Social Security Fund Act, 2013 Read More »

Climate financing refers to the financial support that is aimed at mitigating and helping the adoption of actions that address climate change. The financing is drawn from public, private and alternative sources and can be from local, national or transnational institutions. Why Finance Mitigations Measures Aimed at the Effects of Climate Change? Human Activities such …

ENVIRONMENT, SOCIAL AND GOVERNANCE PRINCIPLES (ESG) IN CLIMATE FINANCING Read More »

Analysis of The Data Protection Act, 2019 Vis-à-Vis the Law Governing CCTV Surveillance System in Kenya INTRODUCTION The introduction of Kenya’s first Data Protection Act, 2019 (“the Act”), brought an end to the era of navigating the murky waters of the previous disjointed frameworks of data protection legislation. The Act is a comprehensive statute that …

Analysis of The Data Protection Act, 2019 Vis-à-Vis the Law Governing CCTV Surveillance Systems in Kenya Read More »

Authored by: T. Kehonji

Authored by: T. Kehonji and J. Nabi The Data Protection Act (DPA) provides for the carrying out of a Data Protection Impact Assessment (DPIA) as part of data protection procedures. The Office of the Data Protection Commissioner (ODPC) has issued a Guidance Note on Data Protection Impact Assessment to assist the data controllers/processors understand their …

DATA PROTECTION IMPACT ASSESSMENT; WHAT YOU NEED TO KNOW Read More »

A company requires directors to run the day-to-day business of the company. In Kenya, the Companies Act 2015 states that a private company must have at least one director, while a public company must have at least two directors. It also states that the company, in appointing directors, must ensure that at least one of …

APPOINTMENT AND REMOVAL OF DIRECTORS UNDER THE COMPANIES ACT 2015. Read More »

It is common knowledge that for you to legally conduct business in Kenya, you have to register either your business or company name. Another form of legal brand protection is by registration of a trademark at the Registrar of Trademarks. Before your trademark is registered, the Registrar conducts an official search to prove that the …

INFRINGEMENT OF A TRADEMARK: PRIORITY OF REGISTRATION OF A TRADEMARK VIS-À-VIS REGISTRATION OF A COMPANY OR BUSINESS NAME. Read More »

A Branch in Kenya is considered a foreign company as under Part XXXVII of the Companies Act, due to its corporate structure. It still uses the systems and resources of the Head Office and maintains the name, brand, and all other attributes of the main office. A subsidiary, on the other hand, is considered a …

REGISTERING A BRANCH OR A SUBSIDIARY ENTITY IN KENYA; WHAT ARE YOUR TAX IMPLICATIONS? Read More »

The Matrimonial Property Rules 2022 (hereinafter “The Rules”), which are made pursuant to section 18 of the Matrimonial Property Act of 2013 (hereinafter “The Act”), were gazetted on August, 2022. The rules were made for the sole purposes of facilitating, ensuring easier and better resolution of matrimonial property disputes under the Act. The salient features …

THE SALIENT FEATURES OF THE MATRIMONIAL PROPERTY RULES 2022 Read More »

Employers hire based on the representations of employees, and their curriculum vitae as well as during the interviews. A good hiring process follows through by requesting recommendations from the contacts provided by the Employee. In some instances, the feedback and/or recommendations will come before the hiring decision is made, but in most cases, the much-needed …

FOR FAKE QUALIFICATIONS AND CURRICULUM VITAE, WHAT IS AN EMPLOYER TO DO? Read More »

The Anti-Money Laundering Guidelines for the Provision of Mobile Payment Services [The Guidelines] were formulated by the Central Bank of Kenya by virtue of powers conferred by Section 3(1) of the National Payment System Act 2011. The guidelines provide guidance to mobile payment services providers on monitoring and reporting of suspected money laundering activities on …

THE NATIONAL PAYMENT SYSTEM (ANTI-MONEY LAUNDERING GUIDELINES FOR THE PROVISION OF MOBILE PAYMENT SERVICES; WHAT YOU NEED TO KNOW Read More »

A discharge agreement is an understanding between an employer and an employee, guaranteeing the employer immunity from any future claims from the employee upon payment of all terminal dues to the terminated employee- including salary, unutilized leave days, and all other payable benefits. These agreements, though not expressly provided for in law, have gained popularity …

DISCHARGE AGREEMENTS UPON TERMINATION OF EMPLOYMENT; VALID OR NOT? Read More »

We all know that a director is not regarded as an employee of a company UNLESS and UNTIL they sign a director’s service contract with the company (Click here to read our article on this decision by the Court of Appeal decision). A director’s service contract is basically an employment contract specifically meant for directors …

DIRECTOR’S SERVICE CONTRACT; WHY DO YOU NEED IT? Read More »

The High Court on 31st January 2022 in the case of Commissioner of Domestic Taxes (KRA) V W.E.C Lines Kenya [Case No. HCCOMMITA E084/2020] invalidated the VAT Regulations 2017 for reason that they were not tabled before the National Assembly. The Kenya Revenue Authority however filed a Notice of Appeal and an application for review …

VAT REGULATIONS 2017: VALID OR NOT? Read More »

Kenyan real estate segment has experienced exponential growth over the years, with several high-rise sky scrapers and expensive shopping malls being constructed. However, the high capital outlay required for real estate development is a major hindrance to real estate development in Kenya. This has led to an undersupply of housing especially in the low income …

REAL ESTATE INVESTMENT TRUSTS (REITs) IN KENYA Read More »

The Office of the Data Protection Commissioner has released a Guidance Note on the ongoing registration of Data Controllers and Data Processors in order to assist entities in ascertaining if they are Data Controllers or Data Processors, and appreciate their obligations with respect to mandatory registration. Here are the Highlights of the Guidance Note; What …

GUIDANCE NOTE ON REGISTRATION OF DATA CONTROLLERS AND DATA PROCESSORS Read More »

On 6th July, 2022, the Children’s Act, 2022 (hereinafter “The Act”) was assented into law. The Act will take effect on 26th July, 2022.  In a nutshell, the Act gives effect to the provisions of Article 53 of the Constitution of Kenya and advances the concept of the best interest of the child as the …

SALIENT FEATURES OF THE CHILDREN’S ACT, 2022 Read More »

The Public Procurement and Administrative Review Board is the first pot of call for all procurement challenges/disputes. Section 167 (1) of the Public Procurement and Asset Disposal Act requires an aggrieved candidate or a tenderer to seek administrative review at the Public Procurement Administrative Review Board within FOURTEEN (14) days of notification of the award …

CAN THE PUBLIC PROCUREMENT AND ADMINISTRATIVE REVIEW BOARD EXTEND THE TIME FOR FILING OF A REVIEW APPLICATION? Read More »

The Companies Act 2015 states that a company must prepare: An annual financial statement; Directors’ report; and An auditor’s report on the financial statement and directors’ report. A quoted company has to prepare more documents in relation to the above. They have to prepare: An annual financial statement; Directors’ remuneration report; Directors’ report; and An …

COMPLYING WITH THE COMPANIES ACT; WHAT ARE THE OBLIGATIONS OF A COMPANY? Read More »

Starting 14th July 2022, you will be required to register with the ODPC as required in the Data Protection Act and the regulations. Who should register?– Companies; public, private, NGOs, and even Churches-except entities with an annual turnover of less than 5 million and less than 10 employees.;– Individuals who handle personal data; and Entities …

Are you a data controller or a data processor? Read More »

Many are times the succession court in Kenya is tasked with determining the question on whether the assets of a company, in which a deceased person was a shareholder/director, form part of the deceased’s person’s estate and are available for distribution. The Court of Appeal in Malindi, in the case of PACIFIC FRONTIER SEAS LIMITED …

JURISDICTION OF THE SUCCESSION COURT: ARE ASSETS OF A COMPANY PART OF THE ESTATE OF A DECEASED PERSON? Read More »

The Constitution of Kenya 2010, under Article 162(2), gives Parliament the mandate to establish courts with the status of the High Court to hear and determine disputes relating to employment matters and land matters. In view of this provision, the Employment and Labour Relations Court [ELRC] was enacted by Parliament through the Employment and Labour …

Jurisdiction of the ELRC; Disputes relating to pension schemes Read More »

The President assented to the Law of Succession (Amendment) Act, 2021 which was subsequently passed into law on 17th November 2021. In essence the Act amends Section 3 of the Law of Succession Act [LSA] by: Introducing the definition of a ‘Spouse within the meaning of the Law of Succession Act to include The amendment …

The effects of the law of the succession (Amendment) Act, 2021 on succession in Kenya Read More »

The right to annual leave is provided for under section 28 of the Employment Act 2007. It stipulates that this right accrues in two ways;An employee shall be entitled: After every 12 months of service with his employer not less than 21 working days of leave with full pay; or Where employment is terminated after …

Performance-Based employees: Are they entitled to annual leave? Read More »

The Court of Appeal in Malindi on 10th June 2022 suspended the effect of the declaration of unconstitutionality of Section 66 of the Marriage Act for a period of three years from the date of judgment to enable parliament to make the necessary amendments to the Marriage Act. The Court of Appeal further held that …

The Court suspends the effects of the declaration of unconstitutionality of Section 66 of the Marriage ACT Read More »

The Court of Appeal in a judgment delivered on 10th June 2022 held that directorship does not confer employment status on a director unless he/she enters into an employment contract with the company. Directorship is governed only by the Companies Act, and the company’s Memorandum and Articles of Association, not the Employment Act.

Ardhisasa is an online platform that allows citizens, other stakeholders and interested parties to interact with land information and processes. It seeks to resolve the historical problems experienced by landowners and investors when undertaking paper transactions. HOW DOES ARDHISASA WORK? Registration For you to access the ardhisasa website, you first have to register on the …

How does Ardhisasa work? Read More »

With the Data Protection Rules coming into force and the registration date for data Protection officers taking effect from 14th July 2022, there is a need for all companies to comply with the Data Protection Act 2019 or risk getting penalized by the regulator. What do companies need to do? Conduct data protection training for …

Compliance with the Data Protection Act Read More »

The Employment Act 2007, has been amended to: Make provisions for the rights that follow adopting employees; and Alter the recruitment process used by employers. The Changes introduced include; 1. RIGHT TO PRE-ADOPTIVE LEAVE Section 29A (1) entitles an employee who adopts a child to one month’s pre-adoptive leave with full pay from the date …

Amendment of the Employment Act 2007 Read More »

WHO IS THE TARGET? The Regulations will affect all persons conducting digital credit business which is not regulated under any other written law.   The Regulations do not apply to lenders who are already regulated under any other written law including: Institutions licensed under the Banking Act; Institutions licensed under the Microfinance Act; Saccos under …

Operationalization of CBK Digital Credit Providers Regulations Read More »

Non-compete clauses are used by employers, in employment contacts, to limit their employees from seeking work or being employed by their competitors after termination of employment. The law on non-compete clauses. The Contracts in Restraint of Trade Act, Cap 24 provides for non-compete clauses in Kenya. The Act provides that non-compete clauses are not void …

Non Compete Clauses in Kenya Read More »