Author: William Karoki

Categories
immigration

DUAL CITIZENSHIP IN KENYA

Kenya: Dual Citizenship

Happy New Year to our esteemed readers! Welcome to our first newsletter of 2024. We hope your holidays were filled with joy, relaxation, and meaningful moments with loved ones. As we resume our regular programming, we are committed to delivering engaging and informative content that aligns with your interests and needs. Thank you for being a valued part of our community. Your continued support and readership inspire us to strive for excellence in every piece we present. In case you missed our newsletters for 2023, you can find them here.

Can Persons Who Lost Their Citizenship Due to Acquiring Another Citizenship Under the Repealed Constitution Regain It Under the 2010 Constitution?

YES. Section 8(1) of the Kenya Citizenship and Immigration Act, No. 12 of 2011 (the “Immigration Act”) provides that a citizen of Kenya by birth who acquires the citizenship of another country shall be entitled to retain Kenyan citizenship, subject to the provisions of the Immigration Act and the limitations relating to dual citizenship prescribed in the Constitution of Kenya, 2010.

In 1998, Kenya embarked on a constitutional review process, completed in 2010 through a referendum where 68.55% of voters supported adopting the new draft. The constitutional provisions on citizenship were operationalized by the Kenya Citizenship and Immigration Act, 2011, and its subsidiary regulations, thus repealing the Kenya Citizenship Act and the Kenya Immigration Act, among others.

Therefore, the Constitution of Kenya introduced a new citizenship regime. Persons who had lost their citizenship due to acquiring another country’s citizenship under the repealed constitution can now regain their citizenship by registering for dual citizenship.

Legal Precedents

In Miguna Miguna v Fred Okengo Matiang’i Cabinet Secretary, Ministry of Interior and Coordination of National Government & 6 others; Kenya National Commission on Human Rights (Interested Party) [2018] eKLR, the High Court held that:

“Miguna Miguna was born a citizen of Kenya in Nyando, along the shores of Lake Victoria in what is now called Kisumu County. His parents were also citizens of Kenya by birth. The Petitioner grew up as a citizen and attended local schools. After his High School education, he joined the University of Nairobi but at some point, he had a brush with the then government of President Moi and fled the country, ending up exiled in Canada, where he eventually acquired a Canadian passport. This was after his efforts to obtain a Kenyan passport failed. He later returned to Kenya, renewed his Kenyan Identity Card, and acquired a Kenyan Passport, showing he was born a citizen of Kenya. He even served as a senior adviser in the Prime Minister’s office and ran for elective posts in Kenya.”

The court concluded that the Petitioner did not lose his Kenyan citizenship by acquiring a Canadian passport. Article 14(5) provides that a citizen by birth who had lost citizenship by acquiring another country’s citizenship is entitled, upon application, to regain the lost citizenship.

Regaining Citizenship

The High Court of Kenya clarified that regaining citizenship under the new constitution is not automatic but a legal process. Applicants must follow the prescribed procedure to be issued citizenship documents such as a passport or ID. If there is undue delay in issuing the certificate of regaining citizenship, the court can mandate the issuance of the certificate and identification documents, interpreting the delay as an infringement of one’s rights as a citizen.

To Register for Dual Citizenship, the Applicant Should:

  1. Submit an application to the Cabinet Secretary in the prescribed manner (Duly completed application Form 1).
  2. Provide proof of previous Kenyan citizenship (Certificate of birth) and proof of citizenship of the other country.
  3. Submit 2 passport photos.
  4. Pay the prescribed fee.

Upon verifying the documents, the Cabinet Secretary issues a certificate of regaining Kenyan citizenship. Dual citizenship is permitted under the Constitution of Kenya, allowing the applicant to maintain the second country’s citizenship.

Disclosure Requirements

Section 8(3) of the Immigration Act requires every dual citizen to disclose their other citizenship within 3 months of becoming a dual citizen. Failure to disclose dual citizenship in the prescribed manner is an offense, punishable by a fine not exceeding five million shillings or imprisonment for up to three years or both.

Dual citizens are entitled to a passport and other travel documents and enjoy the rights of citizens, but must not use dual citizenship to gain unfair advantage or commit a crime. They owe allegiance to and must abide by the laws of Kenya.

We hope this information helps you understand Kenya’s citizenship and immigration laws. Please note that this newsletter provides a general guide and should not be relied upon without legal advice.

For further information or legal assistance, please contact us:

  • Email: info@wka.co.ke
  • Website: wakilihub.co.ke/
  • Phone: +254 798 03 580
  • Address: Nairobi Hub, Parklands, Valley View Business Park, 6th Floor, City Park Drive, Off Limuru Road

Authors:

  • William Karoki, Founding Partner
  • Florence Mwende, Associate
Categories
real estate

WHAT IS THE LAWFUL PROCEDURE FOR A LENDER TO SELL YOUR PROPERTY IN CASE YOU DEFAULT IN LOAN PAYMENTS?

The Legal Procedure for Lenders to Sell Property in Case of Loan Default in Kenya

In Kenya, many borrowers secure loans from banks and financial institutions by offering their property, particularly land, as collateral. This collateral is legally known as a “charge” on the property. Unfortunately, borrowers often default on loan repayments, leading to the sale of their properties through public auctions. A critical question arises: Do lenders follow the lawful procedure in exercising their statutory power of sale when a borrower defaults?

A key case that provides insight into this issue is Basil Criticos v. National Bank of Kenya Limited (Civil Appeal No. 80 of 2017). On April 28, 2022, the Court of Appeal ruled in favor of Basil Criticos, awarding him Kshs. 2,284,101,000 (KES 2.2 billion) for the improper sale of his property, LR No. 5865/2. The court found that the sale was unauthorized, improper, and irregular, violating the legal procedure under the Land Act, 2012.

The Law Governing Statutory Power of Sale in Kenya

The statutory power of sale is governed by the Land Act, No. 6 of 2012, which sets out clear steps a lender must follow before selling a charged property. If these steps are not followed, the sale may be deemed improper, as seen in the Criticos case. Below are the key legal requirements lenders must adhere to:

  1. Issuing Statutory Notices: The lender must issue a statutory notice to the borrower within one month of the default, as per Section 90 of the Land Act. This notice provides the borrower with an opportunity to rectify the default.
  2. Notice of Sale: Under Section 96, the lender must serve a notice of sale and wait for a period of at least 40 days before proceeding with the sale.
  3. Valuation of the Property: The law mandates that a certified land valuer must assess the property to ensure it is sold for no less than 75% of its market value, as stipulated in Section 97.
  4. Good Faith and Duty of Care: The lender must sell the property in good faith and with due diligence to avoid any exploitation of the borrower. Any surplus proceeds from the sale must be remitted to the borrower.

The Case of Basil Criticos: Lessons on Improper Property Sale

The landmark Basil Criticos case sheds light on how banks may act inappropriately when exercising their statutory power of sale. In High Court Case HCCC 132 of 2009, the National Bank of Kenya sold LR No. 5865/2 for Kshs. 55 million following a default on a Kshs. 20 million loan. However, Criticos argued that his liability as a guarantor should have been limited to the initial loan amount. He also claimed that the property, co-owned with Mama Ngina Kenyatta, was sold for much less than its market value of over Kshs. 3 billion.

While the High Court ruled in favor of the bank, dismissing Criticos’ counterclaim, the Court of Appeal later overturned this decision. The appellate judges found that the property had indeed been sold below its market value and that Criticos’ liability as a guarantor was limited. They awarded him Kshs. 2.2 billion in damages.

The Supreme Court Decision

National Bank of Kenya sought to challenge the Court of Appeal’s decision in the Supreme Court. However, the Supreme Court dismissed the application, affirming the appellate ruling that Criticos was entitled to damages for the unauthorized sale of his property.

Proper Exercise of Statutory Power of Sale

The Criticos case serves as a warning to both lenders and borrowers. Banks and other financial institutions must ensure they adhere strictly to the legal procedure before exercising the statutory power of sale. Key compliance measures include:

  • Issuing the correct statutory notices within the specified timelines.
  • Ensuring the property is accurately valued and sold at a fair price.
  • Conducting the sale transparently and in accordance with the law.

Borrowers, on the other hand, should be vigilant and ensure they understand their rights, especially when their property is at risk of being sold.

For legal guidance on the statutory power of sale or other property-related matters, contact WKA Advocates at info@wka.co.ke or visit wakilihub.co.ke/. Our office is located at Valley View Business Park, Parklands, Nairobi.

Authors: William Karoki – Partner
Florence Mwende – Associate

Categories
Uncategorized

THE MBWA KALI (FEROCIOUS DOGS) DECLARATIONS BY LOUNGES, BARS & RESTAURANTS-IMAGE RIGHTS IN KENYA

The “Mbwa Kali” Declarations by Nairobi Lounges, Bars, & Restaurants: Understanding Image Rights in Kenya

In our recent WKA Advocates newsletter, we discussed the uninformed notices issued by some entertainment venues and restaurants in Nairobi, such as #TheLoftLounge and #TheQuiverLounge. These establishments have informed their patrons about the presence of photographers, implying that customers consent to the use of their image rights by simply entering the venue. This raises a crucial question: who invited these photographers, and do patrons fully understand their privacy rights?

The increasing panic among Nairobi business owners reveals widespread ignorance about Kenya’s Data Protection Laws. Fortunately, the Office of the Data Protection Commissioner (ODPC) is taking decisive action to end this era of ignorance. With the growing collection, storage, and use of personal data by third parties, it’s critical for both businesses and individuals to familiarize themselves with the Data Protection Act, 2019 (DPA, 2019). Do data subjects in Kenya know their rights? Are data controllers aware of their legal obligations under the DPA, 2019?

Data Protection Laws in Kenya: A Growing Concern for Lounges and Restaurants

Ignorance of the law is no defense. This has been demonstrated by the recent penalties issued by the ODPC. On 26th September 2023, the ODPC imposed penalties on three Data Controllers for violating Kenya’s Data Privacy Rights and failing to comply with the Data Protection Act.

Key ODPC Penalties:

  • Mulla Pride Ltd, a digital credit provider running the KeCredit and Falcrash mobile lending apps, was fined Ksh. 2,975,000 for misusing complainants’ names and contacts for harassing messages.
  • CasaVera Lounge, a restaurant on Ngong Road, Nairobi, was fined Ksh. 1,850,000 for posting a patron’s image on social media without their consent.
  • Roma School in Uthiru was fined Ksh. 4,550,000 for sharing minors’ photos online without parental consent.

Nairobi Venues React with Misleading Notices

In response to these penalties, many Nairobi bars and restaurants, such as Evo Lounge, The Loft, Texas Barbeque, Platinum 7D, and Quiver Lounge Kilimani, have issued warning notices implying that entry to their premises constitutes consent to be photographed or recorded. Here’s an excerpt from Evo Lounge’s notice:

“Your entry and presence on the premises constitute your consent to be photographed, filmed, and/or recorded… By entering, you waive and release any claims related to the use of recorded media of you… including invasion of privacy.”

These notices are what we call Mbwa Kali Declarations. Unfortunately, many business establishments have misunderstood the penalties issued by the ODPC. Rather than respecting Kenya’s Data Privacy Laws, they resort to invalid and aggressive warnings of “implied consent.” This is not how the law works.

Data Protection Obligations for Nairobi Businesses Under the DPA, 2019

Bars, restaurants, and other establishments in Kenya must comply with the Data Protection Act, 2019, especially if they hire photographers to capture images (which constitute personal data) of their patrons for marketing purposes.

Obligations Include:

  1. Registration: All Data Controllers and Data Processors must register with the ODPC before collecting any personal data. The ODPC maintains a register of certified entities.
  2. Consent: Businesses must obtain free, informed, and express consent from patrons before collecting and using their personal data. Consent cannot be implied.
  3. Compliance: All personal data must be processed lawfully and fairly, respecting the rights of the data subjects.

The 8 Key Data Protection Principles in Kenya

Kenya’s Data Protection Act emphasizes the following principles:

  • Right to Privacy: Data must be processed with respect for privacy.
  • Lawfulness, Fairness, and Transparency: Processing must be lawful and transparent, with clear communication to data subjects.
  • Purpose Limitation: Data collection must be for specific, legitimate purposes.
  • Data Minimization: Only relevant data should be collected.
  • Accuracy: Data must be accurate and regularly updated.
  • Storage Limitation: Personal data should be stored only for as

long as necessary for its intended purpose.

  • Integrity and Confidentiality: Data must be processed securely and confidentially.
  • Accountability: Data Controllers must demonstrate compliance with the Data Protection Act, 2019.

Commercial Use of Personal Data in Nairobi

Section 37(1) of the DPA, 2019, strictly prohibits the commercial use of personal data without explicit consent or legal authorization. Any personal data collected must be anonymized to prevent identification of the individual.

Data Subject Rights in Kenya

Under Section 26 of the DPA, 2019, data subjects in Kenya have the right to:

  • Be informed about the usage of their data.
  • Access their personal data.
  • Object to the processing of their data.
  • Correct inaccurate or misleading data.
  • Have their data deleted if it’s inaccurate or unlawfully processed.

Data subjects can file complaints with the ODPC for any violations of their data rights. The ODPC has the authority to investigate and impose penalties or enforcement notices.

Nairobi Businesses Must Take These Obligations Seriously

Restaurants, bars, hair salons, gyms, and other establishments in Kenya cannot:

  • Collect personal data without registration.
  • Assume consent through “implied” warnings.
  • Use personal data indefinitely for any purpose.
  • Deny data subjects access to inspect their personal data.

Conclusion: The Misuse of “Implied Consent” by Nairobi Bars and Restaurants

Warning notices of “implied consent” issued by businesses such as #EvoLounge, #QuiverLounge, and #Platinum7D are illegal and invalid. Business owners must understand that Data Protection Officers (DPOs) are essential in ensuring compliance with data privacy laws in Kenya to avoid hefty penalties.

At WKA Advocates, we offer specialized Data Protection Officer (DPO) services to ensure businesses comply with Kenya’s Data Protection Laws.

We hope this article helps clarify the key provisions of the Data Protection Act, 2019. For further legal assistance or compliance advice, contact us at:

Email: info@wka.co.ke
Website: wakilihub.co.ke/
Phone: +254 798 03 580
Location: Nairobi Hub, Parklands, Valley View Business Park, 6th Floor, City Park Drive, Off Limuru Road.

Categories
Uncategorized

HOW TO AVOID PROBATE-WKA ADVOCATES

How to Avoid Probate in Kenya

One common question was, ‘Can I avoid drawing a will and still maintain control over my estate upon my demise?’ We found it important to address this pertinent issue.

Death is inevitable, and it is essential to plan for the future, particularly regarding your property (estate). It is imprudent to live without making arrangements for how your property will devolve upon death. Such plans ensure that dependents and next of kin are well provided for, and the wishes of the deceased are respected.

The Law of Succession Act provides rules for writing a valid and enforceable will, as well as the rules for the succession of an intestate’s estate. However, Kenyan courts have often declared wills invalid or revoked them, rendering the deceased person intestate. The main disadvantage of dying intestate is the loss of control over property upon death, exposing next of kin to the arbitrary rules of intestacy and potential disputes among family members.

Fortunately, the law provides other means to maintain control over estates upon death without writing a will or dying intestate. These include survivorship, nomination, family trusts, and donatio mortis causa (gifts in contemplation of death).

1. Survivorship

In re Estate of Johnson Njogu Gichohi (Deceased) [2018] EKLR, the court stated that property can pass upon death other than by will through survivorship, particularly in cases of joint tenancies. Section 91(4) of the Land Registration Act, CAP 300 states that in joint tenancies, a co-owner’s interest automatically passes to the surviving tenant upon death by virtue of the principle of survivorship. Section 43 of the Law of Succession Act adds that in the event of simultaneous deaths, it is presumed that the younger person survives the older person, and for spouses, it is presumed they died simultaneously.

2. Nomination

A nomination is a direction by a nominator to a trustee holding an investment to pay the funds to a nominee upon the nominator’s death. In Kenya, nominations are common for savings and investments in cooperative societies and provident pension schemes. Nominations take effect upon death and are not subject to the law of succession. They can be revoked by a later nomination, subsequent marriage of the nominator, or the death of the nominee before the nominator. However, a nomination cannot be revoked by a subsequent will or codicil.

3. Family Trusts

A Family Trust is created by a Settlor through a Trust Deed, instructing a Trustee to manage assets for the benefit of the Beneficiary. Section 3D of the Trustees (Perpetual Succession) Act, 2021 Cap 164 defines a family trust, which can be living (inter vivos) or testamentary. The advantages of family trusts include avoiding probate, benefiting unrelated persons, protecting assets from creditors, benefiting multiple generations, and imposing restrictions on beneficiaries. Trusts are also valuable for estate and tax planning.

4. Donatio Mortis Causa (Gifts in Contemplation of Death)

For a gift in contemplation of death to be valid, as outlined in Cain v Moon {1896} 2 QB 283 and Section 31 of the Law of Succession Act, it must be given because of a present illness or imminent danger, be conditional upon the donor’s death, be delivered to the donee, be capable of making the subject matter of donation mortis causa, and the donee must survive the donor.

Contact Us

We at WKA Advocates have a dedicated Real Estate and Succession Planning department. If you have any questions or require assistance in avoiding probate, drawing up your family trust, or will, kindly feel free to contact us by email at info@wka.co.ke.

We hope this information helps you understand the ways to avoid probate in Kenya and maintain control over your estate upon death. Please note that this newsletter provides a general guide to the subject matter and should not be relied upon without legal advice.

For further information or legal assistance, contact us at info@wka.co.ke, visit wakilihub.co.ke/, or call +254 798 03 580. Our office is located at Nairobi Hub: Parklands, Valley View Business Park, 6th Floor, City Park Drive, Off Limuru Road.

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Uncategorized

President Assents to 4 Universal Health Coverage Bills, Restructuring NHIF kenya

President Assents to 4 Universal Health Coverage Bills, Restructuring NHIF

In honor of the pledge to accelerate Kenya’s attainment of Universal Health Coverage (#UniversalHealthCoverage), President William Samoei Ruto signed four crucial bills promoting healthcare on October 19, 2023. These are:

  1. The Primary HealthCare Bill, 2023
  2. The Digital Health Bill, 2023
  3. The Facility Improvement Financing Bill, 2023
  4. The Social Health Insurance Bill, 2023

Transformative Changes

These four bills usher in a paradigm shift in Kenya’s healthcare legal and institutional framework by repealing the current NHIF and establishing three new funds:

  • Primary Healthcare Fund (PHF)
  • Social Health Insurance Fund (SHIF)
  • Emergency, Chronic, and Critical Illness Fund (ECCIF)

The NHIF has recorded a steady decline in fulfilling its mandate recently. The Kenya Association of Private Hospitals (KAPH) had even banned the use of the NHIF card due to non-payment by the insurer. This situation has caused anguish for many Kenyans, as NHIF is the most popular health insurance in the country and is heavily relied upon. Patients have had to pay in cash or remain untreated. Public hospitals still accept the NHIF card for payment, but the insurer covers only limited services, prompting patients to seek assistance from private hospitals.

The President’s move to assent to the four Universal Health Coverage Bills, which repeal the current NHIF, has elicited mixed reactions as discussed in our newsletter.

Important Highlights

Section 26 of the Social Health Insurance Act, 2023 makes it mandatory for every Kenyan citizen to register as a member of the Social Health Insurance Fund. The Emergency, Chronic, and Critical Illness Fund will cover emergency and chronic illness costs once the Social Health Insurance Fund is depleted.

The Primary Healthcare Act, 2023

Section 2 of the Primary Healthcare Act defines Universal Health Coverage as ensuring “all individuals and communities receive the health services they need, including the full spectrum of essential, quality health services from health promotion to prevention, treatment, rehabilitation, and palliative care without suffering financial hardship.”

The Act further defines Primary HealthCare as “essential health care based on practical, scientifically sound, and socially acceptable methods and technology, made universally accessible to individuals and families in the community at every stage of their development, through their full participation and at an affordable cost to the community and country, in the spirit of self-reliance and self-determination.”

Its main objective is to promote and fulfill Article 43(1) of the Constitution of Kenya, 2010, which provides for every person’s right to the highest attainable standards of health care. Other objectives under Section 3 include:

  • Implementing primary health care through a systemic approach and clear delineation of roles of all stakeholders towards the realization of universal health coverage
  • Establishing Primary Health Care Networks, Community Health Units, and other stakeholder-centered engagement forums for sustainable primary healthcare services
  • Providing for the role of the multidisciplinary team in the provision of primary health care services
  • Providing for the role of community health officers, community health assistants, and community health promoters in providing community-based primary health care services

Digital Health Act, 2023

The Digital Health Act streamlines the adoption of technology to facilitate data sharing and resource utilization.

Section 3 outlines its objectives to ensure and promote Universal Health Coverage, including:

  • Establishing the Digital Health Agency
  • Maintaining a comprehensive integrated health information system
  • Promoting innovation and the safe, efficient, and effective use of technology for healthcare, including continuity of care, emergency and disaster preparedness, and disease surveillance
  • Establishing a regulatory framework for the e-Health ecosystem data life cycle
  • Ensuring privacy, confidentiality, and security of health data
  • Developing standards for the provision of m-Health, telemedicine, and e-learning
  • Establishing a regulatory framework for e-Waste Management
  • Ensuring the safe and secure transfer of personal, identifiable health data and client medical records to and from health facilities outside Kenya

Social Health Insurance Act, 2023

The Social Health Act does away with the NHIF by introducing three new funds: Primary Healthcare Fund, Social Health Insurance Fund, and Emergency, Chronic, and Critical Illness Fund.

Section 26 makes it mandatory for every Kenyan citizen to register as a member of the Social Health Insurance Fund. The Primary Healthcare Fund will enable Kenyans to purchase health services from level one to three hospitals, while the Social Health Insurance Fund will cover services from level four to six hospitals. The Emergency, Chronic, and Critical Illness Fund will cover emergency and chronic illness costs once the Social Health Insurance Fund is depleted.

The main objective, as outlined under Section 3, is to establish a framework for improved health outcomes and financial protection in accordance with the right to the highest standards of healthcare and Universal Health Coverage.

Facilities Improvement Financing Act, 2023

Section 4 provides that the Act applies to level one to level five public health facilities.

Objectives under Section 3 include:

  • Enabling the collection, retention, and management of revenue derived from health services offered at public health facilities in Kenya
  • Establishing a governance framework for effective planning, coordination, mobilization, and access to public facilities’ improvement financing
  • Appropriating, managing, and using budgeted health services revenue to supplement operations and facilitate quality service delivery in public health facilities
  • Promoting equitable public health facilities improvement financing, including benefit sharing
  • Providing a unified system for financial management in public health facilities, improving efficiency and effectiveness, and promoting quality health service delivery

Response and Reactions from Kenyans

The President’s assent to the new legislation has not been well received by some Kenyans, primarily due to concerns about the high cost to salaried workers. The Standard newspaper highlighted this concern on October 23, 2023. However, Health Cabinet Secretary Susan Nakhumicha assured citizens on October 25, 2023, that a regulatory body will determine the premiums and oversee the implementation of the Universal Health Coverage Act. The transition from NHIF to the Social Health Authority will take 12 months.

Conclusion

We hope this information is helpful in understanding the current developments regarding the repeal of the National Health Insurance Fund and the establishment of the Primary Healthcare Fund, Social Health Insurance Fund, and Emergency, Chronic, and Critical Illness Fund. Please note that this newsletter provides a general guide and should not be relied upon without legal advice.

For further information or legal assistance, contact us at info@wka.co.ke, visit wakilihub.co.ke/, or call +254 798 03 580. Our Nairobi Hub is located at Parklands, Valley View Business Park, 6th Floor, City Park Drive, Off Limuru Road.

Authors:

  • William Karoki, Founding Partner
  • Florence Mwende, Lawyer
Categories
Uncategorized

The Supreme Court Rules That an Allotment Letter is Not a Title Deed and Cannot Be Transferred

The Supreme Court Rules That an Allotment Letter is Not a Title Deed and Cannot Be Transferred

On 22nd September 2023, the Supreme Court delivered a verdict in SC Petition No.5 (E006) of 2022, known as the “Torino case.” The Court ruled that an Allotment Letter is not a title deed and cannot confer any interest in land. It is merely an offer awaiting the fulfilment of specified conditions, including the payment of a Stand Premium and Ground Rent within prescribed timelines. Even after these conditions are met, an allottee cannot pass valid title to a third party until they acquire title through proper registration under applicable laws.

This ruling underscores that an Allotment Letter is not a title deed and cannot be transferred from one person to another. Property buyers must conduct thorough due diligence (#BuyerBeAware) to ensure they obtain a valid title deed. The principle of indefeasibility of title does not apply if the initial land allocation was illegal or procedurally flawed.

The judgment has significant implications, particularly for many Kenyans in the Coastal region, Kajiado, Juja, Nairobi (Embakasi and Starehe), and other areas, who hold #AllotmentLetters and attempt to transfer them as #TitleDeeds. Many buyers end up in court upon realizing their title deeds are invalid. Conducting thorough #DueDiligence is crucial to avoid land fraud. Allotment Letter holders can transfer land through registration via the Ardhisasa platform under the #NationalLandCommissionServices to obtain valid title deeds.

The Torino Case: From Trial Court to Supreme Court

Trial Court: Constitutional Petition No. 38 of 2011
Torino Enterprises Limited vs. The Honourable Attorney General

Timeline of Allocation
On 21st February 1964, a freehold title known as Embakasi L.R No. 11344 (Original No. 41/3), measuring 5639 acres, was granted to Kayole Estates Limited. This parcel was transferred to the Nairobi City Council (NCC) on 22nd November 1971. In 1973, it was subdivided into 8 parcels, including LR No. 22524 (83.910 Hectares), which was transferred to Renton Company Limited in 1999 via an Allotment Letter. Renton then transferred it to Torino Enterprises Limited in 2000 for Kshs.12,000,000. Torino claimed it received a title deed under the Registration of Titles Act on 26th April 2001.

In 2005, Torino argued that the Department of Defence (DoD) unlawfully fenced off 90 acres of its property. Torino contended that DoD’s actions were illegal, infringing on its constitutional property rights under Article 40 of the Constitution, and that DoD failed to comply with #CompulsoryAcquisitionProcedures.

Court Rulings
On 4th July 2011, the trial court ruled in favor of Torino, declaring the suit property a freehold private property and not public land. The court ordered the Respondent to restore possession to Torino or pay Kshs.1,530,000,000, the market value of the land. The Attorney General appealed this decision.

Civil Appeal No.84 of 2012
Attorney General vs. Torino Enterprises Limited (2019)

On 4th February 2022, the Court of Appeal overturned the High Court’s judgment, stating that the suit property was private land and not unalienated government land before NCC’s purchase in 1971. It held that the #CommissionerOfLands lacked authority to allocate it. The court found Torino was not an innocent purchaser, as it should have been aware of DoD’s occupation. Consequently, the #CertificateOfTitle issued to Torino was deemed illegal.

Supreme Court: Petition No. 5 (E006) of 2022
Torino Enterprises Ltd vs. The Attorney General

The Supreme Court concluded that an Allotment Letter cannot confer land interest and cannot be transferred until proper registration is completed. It determined that Torino was not an innocent purchaser and dismissed the appeal.

Similar Verdict in Dina Management Limited Case

In Dina Management Limited vs. The County Government of Mombasa & 5 Others (Petition 8 (E010) of 2021), the Supreme Court revoked a title deed due to non-compliance with legal procedures, emphasizing the #BurdenOfProving the #Legality and #Validity of a title rests with the buyer.

Conclusion

These precedents highlight the necessity for buyers to conduct thorough due diligence before purchasing property. WKA Advocates’ Real Estate, Conveyancing, and Construction Law department can assist with this process, ensuring compliance and reducing the risk of land fraud.

For further legal assistance or more information, contact us at info@wka.co.ke, visit wakilihub.co.ke/, or call +254 798 035 580. Our Nairobi Hub is located at Parklands, Valley View Business Park, 6th Floor, City Park Drive, Off Limuru Road.

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Uncategorized

Can Widows Inherit from Their Parents-In-Law? in kenya

Can Widows Inherit from Their Parents-In-Law? in kenya

Following our recent publication, WKA Newsletter Edition #10 ‘Divorce by Mutual Consent in Kenya – Marriage (Amendment) Bill, 2023,’ we received a flurry of questions from you, our esteemed readers. One of the most common questions was, ‘Can a widow inherit from her parents-in-law?’ We found it important to address this pertinent issue.

In Kenya, there are two forms of succession: testate and intestate succession.

Testate Succession

Testate succession occurs when a person makes arrangements to ensure that upon death, their property passes to the person of their choice. These arrangements are made through a valid and enforceable will.

Intestate Succession

Intestate succession occurs under the following situations as provided under Section 34 of the Law of Succession Act:

  1. A person dies without making a will.
  2. Upon their death, the person’s will is invalidated or revoked.
  3. The person fails to revive their earlier revoked will or make another will.

In most instances, a majority of Kenyans are not keen to write their wills, and hence they die intestate. This is evidenced by the large number of succession cases in courts where family members fight over inheritance. These cases drag on for years before the deceased person’s property is finally allocated to their rightful dependents.

Unfortunately, the most affected dependents are widows (mothers) who have to cater for their children’s needs while battling their in-laws in court to get a share of their spouse’s estate.

Recent Court Ruling

Recently, Justice William Musyoka tackled this issue in the case of Re Estate of Francis Andachila Luta (Deceased) (Succession Cause 875 of 2012) [2022], where the High Court declared that daughters-in-law are not entitled to a portion of their deceased parents-in-law’s estate in cases of intestacy, whether under the Law of Succession Act or customary law. The Honorable Justice stated:

“The protestor is not a child of the deceased. She is, therefore, not entitled to anything out of the estate of the deceased herein. She is a daughter-in-law of the deceased, as she was married to his late son, Henry Lisansa. She has not come out clearly to say who she represents in these proceedings, whether it is her children, the grandchildren of the deceased, or whether she represents the estate of her late husband, Henry Lisansa. She cannot speak for their children, because the said children are entitled to direct access to the estate, vide section 41 of the Law of Succession Act. If she purports to be pursuing the interest due to her late husband, then she will require to take out letters of administration in the estate of her late husband, in order to have authority to claim his stake in the estate…”

This means that if you are a married woman and your husband passes on, you cannot inherit from your parents-in-law if they die intestate. As a daughter-in-law, you will not be considered a dependent within the meaning of Section 29 of the Law of Succession Act. Note that these provisions also apply to widowers.

Rights of a Surviving Spouse in Intestacy

A surviving spouse is entitled to:

  1. A life interest on the whole of the residue of the net estate. The ultimate destination of this property is to the deceased’s children.
  2. The life interest of the surviving widow terminates upon her remarriage.

However, the case of Ripples International v Attorney General & another; FIDA (Interested Party) (Constitutional Petition E017 of 2021) [2022] introduced new developments in the interpretation of Sections 35, 36, and 39 of the Law of Succession Act. The Court declared Sections 35(1)(b), 36(1)(b), and 39(1)(a)(b) unconstitutional on grounds of gender inequality and must be interpreted in a manner that gives effect to the equality of women and men. This means that if a widower remarries, his life interest will also terminate just like that of a widow who remarries.

We hope this information helps answer your questions and understand the interesting developments in the Law of Succession Act, Cap 160. Please note that the contents of this newsletter are intended to provide a general guide to the subject matter and should not be relied upon without legal advice.

For further information or legal assistance on compliance or any other legal issue, kindly contact us at info@wka.co.ke, visit wakilihub.co.ke/, or call +254 798 03 580. Our Nairobi Hub is located at Parklands, Valley View Business Park, 6th Floor, City Park Drive, Off Limuru Road.

Categories
Uncategorized

Divorce by Mutual Consent in Kenya

Divorce by Mutual Consent in Kenya – Marriage (Amendment) Bill, 2023

The National Assembly of Kenya introduced the Marriage (Amendment) Bill on June 27, 2023, aiming to amend the Marriage Act of 2014 (Marriage Act, 2014) to facilitate divorce by mutual consent and related purposes.

The current Marriage Act, 2014 lacks a legal framework for couples to voluntarily dissolve their marriage without resorting to court orders initiated by one party. Section 66 of the Marriage Act, 2014 outlines the separation process, which often leads to conflicts and hostile interactions between spouses.

The Amendment Bill addresses this issue by allowing spouses to mutually agree to divorce, promoting an amicable, straightforward, and cost-effective process.

Key Amendments Proposed:

  1. Reduction of Waiting Period: The proposed amendment reduces the waiting period for divorce under Section 66(1) from 3 years to a minimum of 1 year after the marriage celebration.
  2. Introduction of Section 75A: A new section, 75A, is introduced, enabling parties to jointly petition the court for divorce by mutual consent, provided certain conditions are met. These include mutual separation for at least one year, agreement to dissolve the marriage, and presentation of the petition after at least one year of marriage celebration.

Legal Background:

The constitutionality of Section 66(1) of the Marriage Act was challenged in the case of Tukero Ole Kina v Attorney General & Another (2019), where the court declared it unconstitutional due to its disproportionate effect. This decision was upheld by the Court of Appeal in National Assembly of Kenya v Kina & another (2022), suspending its effect for 3 years to allow necessary parliamentary amendments.

Current Status:

As of the date of our WKA Advocates Newsletter, Section 66(1) of the Marriage Act, 2014 remains in force pending parliamentary amendments. The Marriage (Amendment) Bill represents a positive step towards implementing the court’s decision.

Conclusion:

The proposed amendments aim to simplify and expedite the divorce process for mutually consenting couples, aligning Kenyan law with evolving societal needs and expectations.

We trust this information provides clarity on the key provisions of the Marriage (Amendment) Bill 2023. Please note that this newsletter serves as a general guide and should not be relied upon without legal advice.

For further information or legal assistance on any legal issue, please contact us at info@wka.co.ke, visit wakilihub.co.ke/, or call +254 798 03 580. Our Nairobi Hub is located at Parklands, Valley View Business Park, 6th Floor, City Park Drive, Off Limuru Road.

Authors:

  • William Karoki, Founding Partner
  • Florence Mwende, Associate
Categories
Uncategorized

Kenya: President Signs the Climate Change (Amendment) Bill 2023 Ahead of International Climate Summit

Kenya: President Signs the Climate Change (Amendment) Bill 2023 Ahead of International Climate Summit

The President of Kenya has signed the Climate Change (Amendment) Bill 2023 following its approval by the Senate. This Bill aims to amend the Climate Change Act of 2016 to regulate carbon markets, an area not addressed in the current Act.

The Bill aligns with the Paris Agreement, which Kenya ratified and became a party to on December 28, 2016. The Paris Agreement encourages parties to raise their mitigation ambition through carbon markets and non-market approaches.

Key Aspects of the Carbon Market Regulation

  • Carbon Market Mechanism: The carbon market enables public and private entities to transfer and transact emission reduction units, mitigation outcomes, or offsets generated through carbon initiatives, programs, and projects. This is subject to compliance with national and international laws.
  • Usage of Carbon Credits: Companies or individuals can use carbon markets to compensate for their greenhouse gas emissions by purchasing carbon credits from entities that remove or reduce greenhouse gas emissions.

The Presidential assent to the Bill comes days ahead of the African Climate Change Summit (ACS) 2023 and Africa Climate Week, scheduled from September 4 to 8, 2023, in Nairobi. This international event has garnered significant attention as climate change is a pressing global challenge.

We will attend the African Climate Change Summit (ACS) 2023 and keep you updated on the developments.

Conclusion

We hope this information helps in understanding the main objective of the Climate Change (Amendment) Bill 2023. Please note that the contents of this newsletter are intended to provide a general guide to the subject matter and should not be relied upon without legal advice.

For further information or legal assistance on compliance or any other legal issue, contact us at info@wka.co.ke, visit wakilihub.co.ke/, or call +254 798 03 580. Our Nairobi Hub is located at Parklands, Valley View Business Park, 6th Floor, City Park Drive, Off Limuru Road.

Authors:

  • William Karoki, Founding Partner
  • Florence Mwende, Lawyer
Categories
immigration

Immigration Law Firm in Kenya

Immigration Law Firm in Kenya

Navigating the complex landscape of immigration law can be challenging, but WKA Advocates is here to simplify the process. As a leading business and immigration law firm in Kenya, we specialize in providing comprehensive and expert advice across all aspects of immigration law. Whether you are seeking visas, temporary residence, work permits, or guidance on citizenship status, our experienced team has the knowledge and resources to assist you.

Our Comprehensive Immigration Services

We offer a full suite of immigration services tailored to meet the diverse needs of individuals, families, and corporations, including:

  1. Visa Applications: Assistance with various visa types, including tourist, student, work, and business visas.
  2. Temporary Residence Permits: Support for obtaining permits for study, work, or business purposes.
  3. Residence Permits: Guidance on securing long-term residence in Kenya.
  4. Citizenship Status Determination: Expert assistance in determining citizenship status and navigating the application process.
  5. Criminal Offences Representation: Legal representation for clients facing criminal charges related to Kenyan immigration laws.
Key Legal Services in Immigration Law

At WKA Advocates, we offer specialized services to address the full spectrum of immigration needs:

  • Advisory on Immigration Legislation: Comprehensive advice on Kenya’s Citizenship and Immigration Act of 2011, the Refugees Act of 2006, and other relevant laws, regulations, policies, and case law.
  • Formulation of Immigration Strategies: Tailored strategies for individuals and corporations to achieve their immigration goals.
  • Visa Application Preparation and Filing: Expert guidance in preparing and filing all types of visa applications.
  • Administrative Reviews and Appeals: Representation in administrative reviews and appeals at all levels.
  • Ministerial Waivers and Exemptions: Assistance with applications for regulatory waivers and exemptions.
  • Permanent Residence Applications: Guidance and support in proving permanent residence.
  • Deportation and Legal Representation: Expert legal representation in cases involving deportation, investigations, and arrests.

Why Choose WKA Advocates?

Our clients often share a common concern regarding the immigration status of their employees, experts, and their families. With over 15 years of experience, WKA Advocates is committed to providing personalized and effective solutions to meet your immigration needs. We are dedicated to ensuring our clients receive the best possible outcome, backed by our extensive legal expertise and commitment to excellence.

Contact Us

Are you migrating to Kenya for work, business, education, or relocation? Let WKA Advocates guide you through the immigration process with ease. Contact us today to discuss your legal needs and how we can assist you in successfully navigating the complexities of immigration law in Kenya.