Tag: lawyers in Kenya

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A NEW DAWN FOR PUBLIC BENEFIT ORGANIZATIONS (PBOs) IN KENYA

A New Dawn for Public Benefit Organizations (PBOs) in Kenya

The Public Benefit Organizations Act, 2013 (PBO Act) has officially replaced the Non-Governmental Organizations Coordination Act, CAP 134 (NGO Act). This change, as outlined in the Kenya Gazette Supplement No. 100, under Legal Notice No. 78, was enacted by the Cabinet Secretary for Interior and National Administration, Hon. Kithure Kindiki. The PBO Act comes into effect today, May 14, 2024.

Public Benefit Organizations Act, 2013: From Inception to Implementation in 2024

The Public Benefit Organizations Act, 2013 was passed by Parliament in December 2012 and received approval from former President Mwai Kibaki in January 2013. Despite its passage, the Act remained inactive until May 9, 2024. On this date, the Cabinet Secretary for Interior and National Administration exercised the powers granted by Section 1 of the PBO Act, designating May 14, 2024, as the date for its implementation.

 

Public Benefit Organizations Act, 2013: A Detailed Overview and Analysis

The Public Benefit Organizations Act, 2013 (PBO Act) defines a “public benefit organization” (PBO) as a voluntary grouping of individuals or organizations, which can be membership-based or non-membership-based, and is characterized by being autonomous, non-partisan, and non-profit. According to the PBO Act, a PBO must:

  1. Be organized and operate locally, nationally, or internationally.
  2. Engage in public benefit activities in any of the areas outlined in the Sixth Schedule.
  3. Be registered as such by the Authority.

Key Enhancements Under the PBO Act:

  1. Introduction of the Public Benefit Organizations Regulatory Authority:
    • The Authority, under Section 34, is responsible for registering and de-registering PBOs, advising the government on their activities, maintaining the register, reviewing annual reports, ensuring compliance, and providing advice and training.
  2. Clear Guidelines for Registration:
    • Section 8 specifies requirements for registration, including necessary documentation for applications, registration criteria for international NGOs as PBOs, and constitutional information for PBOs.
  3. Defined Timelines for Registration Processing:
    • Section 9 mandates the issuance of certificates within 60 days of application receipt, providing more clarity than the NGO Act.
  4. Reduced Administrative Discretion in Registration:
    • The Act requires the Authority to notify applicants in writing if their application is unsatisfactory, detailing reasons and providing up to 30 days to comply, promoting transparency compared to the NGO Act.
  5. Establishment of the Public Benefit Organization Disputes Tribunal:
    • Section 50 creates the Tribunal to handle complaints and appeals related to the Act, offering a non-judicial resolution mechanism.
  6. Formation of Self-Regulation Forums:
    • Section 20 allows organizations to form forums for self-regulation, tasked with developing and enforcing conduct standards.
  7. Creation of the National Federation of Public Benefit Organizations:
    • This Federation serves as an umbrella entity for registered PBOs and self-regulation forums, monitoring performance and advising the Authority.
  8. Provision of Government Support:
    • The Second Schedule outlines government support including tax exemptions, incentives for donations, direct financing, preferential public procurement treatment, and access to training.

Potential Challenges Under the PBO Act:

  1. Complex Registration Process:
    • The detailed requirements in Section 8 may result in a lengthy and complex registration process.
  2. Uncertain Registration Costs:
    • The registration fee is yet to be prescribed, adding uncertainty to the registration costs.
  3. Tedious Financial Reporting Requirements:
    • Section 30’s requirement for maintaining proper books and preparing annual statements with independent auditor opinions could be burdensome.
  4. Notification of Organizational Changes:
    • Section 8(8) requires notification to the Authority within 60 days of changes in membership, governing body, or constitution, which may be tedious for organizations.

We hope this overview clarifies the implications of the Public Benefit Organizations Act, 2013. For specific legal advice or further information on compliance, please contact us at info@wka.co.ke or visit our website wakilihub.co.ke/. You can also reach us at +254 798 03 580 or visit our Nairobi Hub at Parklands, Valley View Business Park, 6th Floor, City Park Drive, Off Limuru Road.

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Property Fiasco of 100 Investors Losing Their Investments in Greatwall Apartments, Athi River, Kenya

Behind the Headlines: The Encumbered Property Fiasco at Greatwall Apartments, Athi River, Kenya

Purchasers of 100 units at Greatwall Apartments in Athi River, Kenya, have lost their investments due to buying encumbered units. Erdemann Properties Limited sought a temporary injunction in the High Court and the Court of Appeal to prevent KCB Bank from selling the charged apartments at a public auction to recover the debt owed to it. However, both courts denied the request and refused to classify the third-party buyers as “innocent purchasers for value.” Consequently, KCB is authorized to exercise its statutory power of sale.

The Erdemann case parallels the landmark cases of Torino Enterprises Ltd vs. Attorney General (SC Petition No.5 (E0060) of 2022) and Dina Management Limited vs. The County Government of Mombasa & 5 Others (Petition 8 (E010) of 2021). These cases established that purchasers must conduct thorough due diligence (#BuyerBeAware) to identify all encumbrances on the title and ensure they obtain a valid property title. With many Kenyans viewing engaging qualified advocates as an unnecessary expense, such unfortunate situations are likely to increase.

Trial Court: In Brief

Application for a Temporary Injunction in Civil Suit E209 of 2022 Between Erdemann Properties Limited v. KCB Bank Limited

On June 6, 2022, Erdemann Properties Limited filed a Notice of Motion in the High Court of Kenya seeking a temporary injunction to prevent KCB Bank Limited from selling 100 apartment units at a public auction pending the hearing and determination of the suit.

Erdemann, a real estate developer, had obtained loans totaling Kshs. 1.84 billion from KCB to finance the construction of 2,190 apartment units on land registered as LR No 27317/2. The security for these loans included a legal charge over properties Title No. IR 202852 LR 209/22016 and a deed of assignment of project receivables.

Erdemann met its loan repayment obligations until March 12, 2020, when its operations were affected by the COVID-19 pandemic. The loans were restructured, with further securities including a legal charge of Ksh. 425,750,000 on 100 unsold units on LR No 27317/2. Despite this, Erdemann sold the charged units to unsuspecting purchasers, contrary to the terms of the charge, which required all proceeds from sales to be deposited into a designated escrow account.

In its Notice of Motion, Erdemann argued that KCB’s statutory notices to sell the 100 units, despite their sale to innocent purchasers, would defeat the purchasers’ rights. Erdemann offered alternative security to KCB, asserting it was fair to nullify the charge on the 100 units for the benefit of the innocent purchasers.

KCB contended that Erdemann breached the charge terms by selling the 100 units without consent and failing to deposit proceeds into the escrow account. Thus, the sale was unlawful, and the purchasers did not qualify as innocent purchasers for value. KCB argued it had the right to exercise the power of sale due to Erdemann’s loan default, amounting to Kshs. 2 billion.

The Court’s Determination

The Court’s primary consideration was whether Erdemann had established a case for a temporary injunction, guided by the principles in Giella v. Cassman Brown & Co Ltd [1973] EA 358:

  1. The applicant must show a prima facie case with a probability of success.
  2. An interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable harm not adequately compensated by damages.
  3. If in doubt, the court will decide on the balance of convenience.

The Court found Erdemann failed to remit sales proceeds to KCB or the escrow account. It ruled Erdemann had not shown a prima facie case with a probability of success and that any harm could be compensated by damages. The application for a temporary injunction was dismissed with costs to KCB. Erdemann appealed the decision.

Civil Application No. E042 of 2024 Between Erdemann Properties Limited v. KCB Bank Limited at the Court of Appeal

Erdemann’s appeal centered on the argument that purchasers of the 100 units and 281 off-plan units were innocent purchasers for value, and KCB’s intended sale was illegal. The Court of Appeal determined whether a temporary injunction should be issued pending the appeal.

The Court stated that for a temporary injunction to succeed, the appeal must be arguable and not frivolous, and the injunction must prevent the appeal from being rendered nugatory. The Court found the appeal arguable but not likely to be rendered nugatory, as the respondent could compensate the applicant. Therefore, the application was dismissed with costs to KCB.

Conclusion

Both superior courts did not declare the purchasers of the encumbered units as innocent purchasers for value. Therefore, KCB Bank is free to exercise its statutory power of sale to recover Erdemann Properties Limited’s debt. These purchasers may either vacate the apartments or repurchase them from KCB Bank, resulting in a significant loss.

All purchasers in real estate transactions should conduct thorough due diligence through their advocates to ensure the property is free from encumbrances. Precedents set by the Torino case and the Dina Management case place the burden of proving the legality and validity of the title on the purchasers (#BuyerBeAware). Engaging experts such as advocates can prevent losing investments to fraudsters and creditors.

At WKA Advocates, our dedicated Real Estate, Conveyancing, and Construction Law department is here to assist with due diligence and legal support. For any property-related interests, contact us for thorough assistance.

For further information or legal assistance, 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
  • Erick Karangatha, Candidate Attorney
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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
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Kenya Cabinet Approves Splitting of NHIF (National Health Insurance Fund)

Kenya Cabinet Approves Splitting of NHIF (National Health Insurance Fund)

In honor of the President’s pledge to accelerate Kenya’s attainment of Universal Health Coverage (UHC), the Cabinet has considered and approved four crucial bills that promote healthcare, to be transmitted to Parliament. 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

These four bills usher in a new paradigm in the legal and institutional framework for healthcare in Kenya by repealing the current NHIF and establishing the following three funds in its place:

  • Primary Healthcare Fund
  • Social Health Insurance Fund
  • Emergency, Chronic, and Critical Illness Fund

The NHIF has experienced a steady decline in fulfilling its mandate in recent years. The Kenya Association of Private Hospitals (KAPH) had even banned the use of the NHIF card due to nonpayment by the insurer. This situation left many Kenyans in distress because the NHIF is the most popular health insurance in the country and is relied upon by the majority. Patients have had to pay in cash or go untreated. While public hospitals still accept the NHIF card as a mode of payment, the insurer only covers limited services, prompting patients to seek assistance from private hospitals. The Cabinet’s decision to repeal the current NHIF is a significant relief for Kenyans.

We will be updating the public on the provisions of these bills as they are published. We hope this information helps 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 the contents of this newsletter are intended to provide a general guide to the subject matter. It should not be relied upon without legal advice on its contents.

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

Authors:

  • Founding Partner: William Karoki
  • Lawyer: Florence Mwende
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A NEW DAWN FOR FOREIGN INVESTORS IN THE ICT SECTOR IN KENYA

A NEW DAWN FOR FOREIGN INVESTORS IN THE ICT SECTOR IN KENYA

The Information and Communications Technology (ICT) Sector Policy Guidelines 2020 in Kenya introduced a requirement for foreign firms licensed to provide telecommunications services to have at least 30% of their shares held by locals within a three-year grace period.

The rationale behind the 30% local shareholding requirement was to ensure national security, attract foreign investment, and create employment for Kenyans. The policy aimed to equip Kenyans with sufficient knowledge to help local ICT firms flourish. However, it did not achieve its mandate as the number of foreign investors in the ICT sector declined significantly. Foreign companies found the policy prohibitive and were reluctant to find local partners, making it harder for existing startups to increase their stake beyond the 30% equity threshold.

Consequently, President William Ruto proposed the removal of the mandatory local shareholding requirement as part of the fiscal policy changes expected in the Finance Bill 2023 and the Budget Policy Statement. This proposal was made during the American Chamber of Commerce (AmCHAM) Summit held on March 29th and 30th, 2023, in Nairobi. In a Cabinet dispatch dated July 18th, 2023, the Kenyan Cabinet approved the President’s proposal. The dispatch stated that the rationale for scrapping the 30% requirement is “part of the reforms to enhance Kenya’s overall ease of doing business index while also fortifying legislative consistency in the governance framework for foreign investments. The policy shift is geared towards facilitating technology and knowledge transfer as well as aiding the expansion of the digital economy by positioning the country for increased foreign investments in technology as envisioned in the Administration’s Bottom-Up Economic Transformation Agenda (BETA).”

Following Kenya’s Cabinet approval of abolishing the mandatory local shareholding requirement in the ICT sector, Elon Musk launched his satellite Internet firm, Starlink, in Kenya on July 19th, 2023. Starlink partnered with a local internet company, Karibu Connect, as its first authorized distributor in Kenya. The launch made Kenya the sixth African country to be explored for business by Starlink after Nigeria, Mozambique, Mauritius, Rwanda, and Comoros. Shortly after the launch of Starlink, United States (US) Ambassador Meg Whitman attended the 8th Devolution Conference in Eldoret. In her address, she strongly pitched Kenya as Africa’s best investment destination for the international community. The envoy did not hide her enthusiasm about Kenya’s investment prospects and climate, describing the country as the region’s ICT Hub and gateway to East Africa.

Local Shareholding Requirements in Other Sectors:

  • Engineering: The Engineering Technology Act No. 23 of 2016 requires a foreign firm to be incorporated in Kenya and have a minimum local shareholding of 51% to be registered as an engineering consulting firm.
  • Aviation: Regulations 5 and 12 of the Civil Aviation (Licensing) require a prospective licensee to be a Kenyan citizen or, if a body corporate or a partnership, to have at least 51% of its voting rights held by the Kenyan government, a Kenyan citizen, or both.
  • Private Security: The Private Security Regulation Act, 2016 mandates a prospective license holder to have a minimum of 25% local shareholding.
  • Pension Funds/Schemes: The Retirement Benefits Act, 1997 requires at least 60% of the paid-up share capital of a scheme administrator to be held by Kenyan citizens unless the administrator is a bank or an insurance company.
  • Shipping: The Merchant Shipping (Maritime Service Providers) Regulations, 2011 require an applicant for a license to be a Kenyan citizen or, if a body corporate, to have at least 51% of its share capital held by Kenyan citizens.
  • Insurance: The Insurance Act (CAP 487) stipulates that not less than one-third of the paid-up share capital of an insurance company must be owned by citizens of the states forming the East African Community or wholly owned by the Kenyan government.
  • Mining: Under the previous Mining Act, a mining license applicant needed 35% local shareholding for a mineral right. The 2016 Mining Act allows the Cabinet Secretary to set capital expenditure limits. If a licensee’s planned spending surpasses this limit, they must list 20% of equity on a local stock exchange within three years of production start. Small-scale operations tied to mineral rights are limited to Kenyan citizens or bodies corporate with 60% local shareholding.
  • Capital Markets: The Capital Markets (Foreign Investors) Regulations require every legal entity that offers securities to the public or a listed company to reserve at least 25% of its ordinary shares for investment by Kenyan citizens.
  • Financial Institutions: The Banking Act (CAP 488) also imposes specific local shareholding requirements.

We hope this information is helpful in understanding the 30% local shareholding requirement in the ICT sector and the effects of its abolishment in Kenya. 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 on its contents.

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

Authors:

  • Founding Partner: William Karoki
  • Lawyer: Florence Mwende
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President Uhuru Kenyatta Signs the Military Veterans Bill into Law

President Uhuru Kenyatta Signs the Military Veterans Bill into Law

On June 15, 2022, President Uhuru Kenyatta signed into law the Military Veterans Bill, 2022 (Military Veterans Act, 2022). This legislation comes at a critical time when the world is grappling with a global mental health crisis. Many retired servicemen have reported suffering from physical and mental trauma, including post-traumatic stress disorder (PTSD), due to the challenging conditions faced during their service. Concerns have been raised over the lack of a comprehensive legal framework to address the special needs of these veterans after retirement. The most publicized mental health challenges facing veteran service members are PTSD and depression. Research suggests that approximately 14% to 16% of U.S. service members deployed to Afghanistan and Iraq have PTSD or depression, and the situation is similar in Kenya.

Key Features of the Military Veterans Act, 2022

Comprehensive Support for Veterans

Proposed by the Leader of the Majority, Hon. Amos Kimunya, this newly signed law aims to improve the quality of life for military veterans (vets) and their dependents. The law covers all those who retired after serving in the Kenya Defence Forces (KDF) and its precursor, the pre-colonial unit named Kenya African Rifles. It applies to those who receive a military pension and were not dishonorably discharged from military service. Veterans discharged on medical grounds will also receive benefits under the Act.

Regulatory and Institutional Framework

The Act establishes a regulatory and institutional framework for managing military veterans’ affairs, including the creation of the Dependants’ Education Fund (DEF) by the Defence Council. The Defence Council, chaired by the Defence Cabinet Secretary, includes the Chief of the Kenya Defence Forces, the commanders of the Air Force, Navy, and Army, and the Defence Principal Secretary. This council is the primary decision-making body for veterans’ affairs.

Defence Forces Retirement Home

The Act also establishes the Defence Forces Retirement Home (the Home), where the Defence Council will determine eligibility for accommodation, services provided, and required contributions. Serving members will contribute to the establishment and maintenance of the Home.

Director of Military Veterans

A Director of Military Veterans, appointed by the Defence Council, will oversee the administrative duties of the DEF and the Home, operating under the Chief of Defence Forces.

Advisory Committee on Military Veterans

An Advisory Committee on Military Veterans will be established to advise and make recommendations to the Defence Council, Cabinet Secretary, or Director of Military Veterans on matters related to veterans and their dependents.

Policy Development and Implementation

The Defence Council is empowered to develop policies on military veterans and consider proposals from the Cabinet Secretary, Chief of Defence Forces, or Director of Military Veterans regarding funding and budgeting for veterans’ affairs. Clause 23 of the Act grants the Cabinet Secretary the authority to make regulations for the enactment and implementation of the Act’s provisions.

Conclusion

The Military Veterans Act, 2022, is a significant step toward recognizing and addressing the needs of Kenya’s retired servicemen and their families. Viva to our soldiers and decorated veterans! The rewards of patriotism are within reach.

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

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.

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Costly Mistakes to Avoid When Purchasing Property in Kenya

Costly Mistakes to Avoid When Purchasing Property in Kenya

  1. Money Matters
    • Don’t send money directly to the seller or their advocate unless advised by your qualified advocate.
    • Don’t pay the whole amount at once. Deposits should be at least 10%.
    • Don’t pay in hard cash! Always ensure there’s a money trail.
  2. Not Having Your Own Lawyer
    • Don’t engage in any property transaction without appointing your own qualified advocate.
    • Your advocate will advise you on the necessary documents and other important experts such as surveyors and valuers.
  3. Relying on Influencers
    • Don’t make a decision to buy land based solely on journalists, social media influencers, pastors, friends, or TV adverts.
    • Influencers cannot perform due diligence on your behalf.
  4. Buying in Secrecy
    • Don’t buy property without informing your family, close friends, confidants, or spouse.
    • They may provide valuable alternative opinions or warn you of potential risks.
  5. Not Doing a Site Visit
    • Don’t buy property without a physical site visit or through your power of attorney or qualified advocate to ensure the land is vacant.
    • Upon your advocate’s advice, engage a qualified surveyor to map out the beacons on a second site visit.

By avoiding these common pitfalls, you can make a more informed and secure property purchase in Kenya. Always seek professional advice and ensure thorough due diligence to safeguard your investment.

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Fees, Costs, and Taxes Payable When Buying Land or Houses in Kenya (Conveyancing)

Fees, Costs, and Taxes Payable When Buying Land or Houses in Kenya (Conveyancing)

Buyer’s (Purchaser) Costs

  1. Purchase Price
    • Unless advised otherwise by your qualified advocate, let a qualified advocate hold all funds as a stakeholder, not an agent, or jointly by both parties, or by a third party in an escrow account. The purchase price is ideally paid as follows:
      • Deposit: 10% (or higher) of the purchase price on or before execution of the sale/lease agreement.
      • Balance: Remaining purchase price on completion (exchange of documents, transfer of original title, etc.).
      • If it is a gift, state clearly that it is a gift. Never pay in hard cash! Check our Vol 2, 2023.
  2. Professional Fees
    • Qualified Advocate: Minimum legal fees are regulated by the Advocates Remuneration Order (ARO) and based on the value of the subject matter. Avoid agreements for KES 2,000.
    • Qualified Valuer: To value the property.
    • Qualified Surveyor: To obtain maps/mutation at the Ministry (Maps cost about USD 4/KES 400) and resurvey the property.
  3. Nominal Duty to Stamp Agreement
    • The sale/lease agreement must be stamped to be used in a court of law in case of fraud.
    • Cost: Usually USD 20-50/KES 200-500 (expressed in denominations of KES 20, referred to as pounds).
    • The agreement will be stamped with a red dye stamp (in Kenyan pounds).
    • Must be stamped within 30 days, or penalties will accrue.
  4. Stamp Duty
    • 4% for properties within cities and municipalities.
    • 2% of the value for properties outside municipalities/cities.
    • Your advocate will advise on properties exempt from stamp duty.
  5. Bank Fees & Miscellaneous Costs
    • If taking a loan, the bank will charge the property. Charges/mortgages attract 0.1% of the amount secured.
    • Bank miscellaneous costs (RTGS/excise tax).

Seller’s (Vendor) Costs

  1. Land Rent
    • Payable to the government (if leasehold).
  2. Land Rates
    • Payable to the county government.
    • Includes all penalties for late payments.
    • Seller to provide buyer with all clearance certificates and accompanying receipts/bank cheques.
  3. Utility Bills
    • All pending water and electricity bills.
    • All the above costs will be apportioned between buyer and seller. Your advocate will advise on this.
  4. Commission
    • Payable to duly licensed estate agents/brokers.
  5. Partitioning or Subdivision of Land/Building Plans
    • Costs of engaging a surveyor, physical planner, qualified engineer/architect/quantity surveyor.
  6. Consents/Approvals
    • All costs necessary for obtaining consents referred to in our Vol 2 (Commissioner of Lands, Land Control Board, Change of User, County Council Building Permits, etc.).
  7. Probate/Succession Costs
    • In case of succession matters, all probate fees to obtain proper title.
  8. Capital Gains Tax (CGT)
    • Check our Vol 1, 2023.
    • The rate of tax is 15% of the net gain.
    • Your advocate will advise on how to calculate tax and properties exempt.
  9. Bank Loan Discharge Fees
    • If the owner had taken a loan against the property, it must be discharged with consent by the bank. Discharges/reconveyances cost 0.05% of the amount secured.
    • Bank miscellaneous costs/excise tax.
  10. VAT (16%) on Sale of Commercial Buildings
    • On January 17, 2019, KRA was granted a stay of execution on the High Court judgment (civil suit 541 of 2015) until the presumed appeal is heard. For now, VAT on the sale of commercial buildings remains payable.

Buying a House/Apartment + Costs

  • Note that for houses and apartments, the first agreement is called an offer letter, and the sale agreement is known as an agreement of lease. The purchase price is referred to as lease premium.
  • After the passage of the Sectional Properties Act No. 21 of 2020, buyers/owners of apartments will receive a title deed rather than a certificate of lease. Buyers/owners will also have one share in a corporation to manage the common areas.

Seller’s Lawyer Legal Fees

  • 1% of the purchase price.
  • Can be renegotiated by your qualified advocate.

Other Costs

  • Disbursement for Water Infrastructure Costs
  • Electricity Infrastructure Costs: Normally referred to as electricity/power meter & deposit & connection charges.
  • Provisional Service Charge and/or Service Charge: For the first 3 to 5 months, expressed as a percentage of the lease premium.
  • Initial Provisional Infrastructure Levy Deposit: May not be charged.
  • Cost of Transfer of Allotment and Setting Up of Management Corporation
  • VAT on Fees and Disbursements: VAT is payable on legal fees and disbursements at a rate of 16%.
  • Registration of Documents and Pre/Post Search Costs: Green card search and normal search before and after obtaining title, and registration of transfer documents to obtain new title/sectional title.

For more details, visit WKA Advocates.

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WKA Advocates’ Guide to Avoiding Pitfalls When Buying Land or a House in Kenya

WKA Advocates’ Guide to Avoiding Pitfalls When Buying Land or a House in Kenya

Don’ts

  1. Don’t send money directly to the seller (vendor) or their agent unless advised by your advocate. Avoid paying in hard cash to ensure there is a money trail.
  2. Don’t buy or sell/lease land or apartments without involving a qualified advocate. Your advocate will guide you and recommend other essential experts like qualified surveyors and valuers.
  3. Don’t make a decision to buy land based solely on radio and TV adverts or media influencers. Conduct a simple Google search for any cases or complaints against the sellers.
  4. Don’t ignore this advice, or it may end in premium tears.

Who Sells Land/Houses in Kenya?

  • Reputable real estate firms (Ensure they are licensed and check for any court cases against them)
  • Saccos, churches, chamas, cooperatives, financial trusts, companies, individuals, and communities
  • Private developers and licensed estate agents/brokers on behalf of owners for a commission

Do’s

  1. Do a first site visit physically or through your power of attorney to ensure the land is vacant.
  2. Upon your advocate’s advice, engage a qualified surveyor to map out the beacons on a second site visit.
  3. Inform your confidants/family/spouse of your intentions to buy/sell land or an apartment. They may provide valuable opinions or better options.
  4. After a phone call or oral chat, always write an email/WhatsApp/text message to confirm what was discussed. Ensure you have written evidence or minutes of the meeting.

What Are the Types of Land Classification?

  • Private, Public, or Community Land: Refer to the NDUNG’U LAND REPORT to ensure the land was not acquired illegally.
  • Freehold or Leasehold: Freehold indicates absolute proprietorship/ownership, often for agricultural land. Leasehold is for a term like 99 years.
  • Apartments/Townhouses: Classified as sectional properties.

Important Notes

  • A certificate of allotment/share certificate is not a title deed. Do not be deceived.
  • There is no such thing as a “ready title” or “clean title”. The title must be legally transferred to you.
  • Hiring a qualified advocate is not expensive. Advocate fees are guided by the Advocates’ Remuneration Order. Better safe than sorry! Avoid any agreements claiming to cost USD 30/KES 3,000.
  • All agreements involving land/houses must be in writing, signed, and properly witnessed.

Which Consents Do You Need?

  • Land Control Board Consent: The board consists of assistant county commissioners and village elders. A controlled transaction is declared void if this consent is not obtained within six months. Cost: USD 10/KES 1,000 or special sitting USD 50/KES 5,000.
  • County Land Management Board Consent
  • Spousal Consent: As they have matrimonial property rights.
  • Financial Institutions (Banks): If the property was charged (used to secure a loan).
  • Other Authorities: Kenya Airports Authority (KAA), Kenya Railways, Kenya Civil Aviation Authority (KCAA), Kenya Ports Authority (if land is adjacent), and trustees of national parks.

For further information or legal assistance, 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:

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

President Kenyatta Announces 12% Minimum Wage Increase for Kenyan Workers

President Kenyatta Announces 12% Minimum Wage Increase for Kenyan Workers

The Employment (Amendment) Act 2022 was signed into law on April 4, 2022, by His Excellency the President of Kenya. The following changes took effect on April 22, 2022.

Key Changes:

  1. Streamlined Job Application Process:
    • Employers will no longer require job applicants to produce clearance and compliance certificates, such as certificates of good conduct, EACC clearance, and HELB clearance, at the initial point of a job application.
    • This amendment aims to ease the financial burden on job applicants, especially young, underprivileged individuals, who previously had to spend around KES 6,000 to acquire these certificates.
  2. Elimination of Application Fees:
    • The fees for applying for clearance and compliance certificates have been scrapped. It is now free to apply for these certificates from relevant institutions like HELB.
  3. Public Service Applicants:
    • Job applicants for public service positions will still be required to submit clearance and compliance certificates.
  4. Post-Offer Requirements:
    • Successful job applicants who receive a letter of offer will still need to submit the required clearance and compliance certificates.
    • Employers have the right to withdraw letters of offer if the prospective employees do not submit the requested certificates.

Recommendations for Employers:

  • Employers should review and update their Human Procedures and Policies Manual and Employment Contracts to align with these changes and ensure compliance with the law.

Please note that the contents of this newsletter are intended to provide a general guide to the subject matter. It should not be relied upon without legal advice. For further information or assistance on compliance or any other legal issues, please contact us at info@wka.co.ke.

Visit us at:
WKA Kenya
Nairobi Hub: Parklands, Valley View Business Park, 6th Floor, City Park Drive, Off Limuru Road
Website: wakilihub.co.ke/