Publications

County government of Mombasa wins Sh2.5 billion case against LAPFUND

Through lawyers Fred Adhoch and Furaha Kenga, the county government said non-remittance emanates from budget restrictions, shortfalls from the national government and delayed disbursements.

Adhoch said the retirement savings for a percentage of its employees’ salaries, and statutory deductions are budgeted for and allocated separately in the county’s annual budget. Therefore, the payment of one is unaffected by the other and is only subject to budgetary allocations.

The Divorce Process in Kenya

Divorce is the dissolution of a marriage that has subsisted for three or more years. The common grounds for dissolution of all forms of marriage are cruelty, adultery, desertion, exceptional depravity and the irretrievable breakdown of the marriage, among others.

Reasons for Challenging a Will

When making a will, it is important to involve an attorney to guide you through the formalities. A will that does not conform to the law could be successfully challenged and revoked or have the invalid sections revoked.

Basic Tips on Handling Information Relating to Employees in Keeping with Data Protection Laws

Here are some basic tips on handling information relating to employees in keeping with data protection laws.

Employer’s Surveillance of an Employee’s Workplace Correspondence

Generally, employers have the right to monitor work emails sent or received by their employees. In exercising this right, they must bear in mind the need to respect the employees’ right of privacy at the workplace.

Public Procurement Administrative Review Board Proceedings: Limitation of Time

Section 167(1) of the Public Procurement and Asset Disposal Act, Act No. 33 of 2015 (the Act) as read together with Regulation 203(1)(c) of the Public Procurement and Asset Disposal Regulations, 2020, sets out a mandatory period within which an aggrieved party can file a request for review against a procuring entity for a breach of a duty imposed on the entity by the Act.

Basic Matters to Implement to Keep Your Organizational Operations Within Requirements of Data Protection Laws

In Kenya, the Data Protection Act defines the basis for the processing of personal data by an organization and sets out requirements that must be adhered to. Some basic matters that organizations need to implement not to fall foul of the laws on data protection include:

Measures That Organizations Processing Employees’ Personal Data Should Implement

Organizations that process personal data are required to comply with applicable laws on data protection regardless of where the processing takes place. Companies whose employees work from home and have access to personal data should consider the following:

Practical Completion in Construction Projects

Issues or difficulties arising from ascertaining if practical completion has been attained will from time to time arise for which it is imperative that both contractors and employers consider seeking expert legal advice to assist in navigating such issues.

Tips on Use of Dispute Resolution Panels to Overcome Construction Disputes

Parties to a construction contract should consider diverse modes of resolving disputes prior to opting for litigation. Use of dispute resolution panels can keep costs arising from construction disputes at a minimum.

Tips in Support of Writing a Will

When a person dies without leaving a valid will, their property is shared out according to intestacy rules. These rules mainly provide for the spouses and other close relatives of the deceased unlike a will which has several benefits.

Mediation of Employment Disputes

Organizations need to adopt an in-house conflict management structure that prioritizes mediation as an important dispute resolution process that can enhance effective performance within an organization.

Basic Tips to Avoid Costly Workplace Data Protection Breaches

An employer who obtains personal data or information relating to an employee in keeping with the employment contract has a moral and legal duty to ensure that such information is kept in adherence to the law.

Basic Tips Where an Employer is Constrained to Monitor Employees at Work

Monitoring employees consists of acts such as taking videos of your workers to detect crime, checking telephone logs to detect excessive private use or monitoring emails; or checking internet use. Data laws apply where you monitor your workers.

Employee Monitoring and Surveillance

Employers routinely engage in the monitoring of employees’ activities for various reasons. However, monitoring and surveillance as a management practice comes with legal obligations whose compliance is now mandatory.

Principles Governing Damages in Copyright Infringement Cases

Owners of intellectual property have exclusive rights to its use and distribution. Any unauthorized use of these rights is referred to as copyright infringement and will result in a court ordering a variety of remedies, including damages or an account of profits or an injunction.

5 Matters that Affect the Validity of a Construction Contract

A contract can be rendered invalid by several matters including errors in the contract. For a construction contract, these five matters, if proven, will render it invalid.

Tips by Which Contractors Can Legally Protect Themselves Against the Insolvency of a Developer

In the construction industry, contracts are structured so that there is a delay between work being performed and payment being received. Prudent contractors can adjust their operations in the following manner to protect themselves against cash flow challenges that may be caused by the insolvency of the developer.

Practical Tips for Dealing With Queries Made by the Tax Authority

Inquiries that are made by tax authorities may commence in the form of an informal query made with the tax payer or its agent arising from a tax return. In many cases the tone of the questions at an early stage may be casual. However, it is imperative to take the queries seriously adhering to these tips.

5 Tips for Successfully Preparing for Construction Disputes

For typical construction or engineering disputes the following are essential tips for consideration prior to commencing a claim or engaging in the defence of a claim in order to maximize prospects of success.

Records a business is legally required to keep on consent obtained from its customers to deal with their personal data

The law requires a business to obtain customer consent before using their personal data. This requires the business to keep evidence of customers’ consent by keeping the following records.

Tips When Looking to Take Action For Social Media Offences

False statements or claims published online are potentially more damaging than similar statements carried on traditional print media because they can readily to be shared and spread quickly amongst a diverse audience. When considering taking action against a social media publication, bear these matters in mind:

Tips to Help Manage Problems Associated With Practical Completion

Practical completion of a construction project occurs when an architect or other person given the contractual mandate certifies the works relating to a construction project as having been finished. The following practical tips will hep in managing some of the disputes relating to practical completion.

Tips on Design Liability Obligations in Construction Contracts

Sometimes determining responsibility for design deficiency can be difficult. Where the employer claims that the consultant or contractor has been negligent in producing its design, the test will be whether the consultant acted in accordance with the standards of reasonably competent members of its profession at that time.

Defects and General Rights Against a Construction Contractor Where They are Detected

Following the completion of a construction project many times defects will be detected in the building work for which most construction contracts will require the contractor to return to site in order to rectify the defects.

Key Construction Contract Documents for Parties to a Construction Project

A construction contract incorporates pertinent documents so as to properly define the nature of the works to be conducted together with the obligations
and liabilities of all persons involved in the construction works. Some of the documents are discussed here.

3 Matters From Which Disputes Commonly Arise in Construction Projects

The complexity of a construction project, the number of parties involved in the project and the scale of a project will normally give rise to disputes. Here are three matters that need careful attention in a construction project given that most disputes arise from them.

Importance of Maintaining a Distinction Between your Joint Venture and a Partnership Business

It is important to create a distinction between your joint venture and a partnership. The following matters should be taken into account in order to avoid the inference that the joint venture is a partnership.

5 Tips to Bear in Mind When Subcontracting

Subcontracting is the delegation by one party (the main contractor) of some or all of its obligations under a contract between it and a customer to a third party. As a main contractor it is imperative to adhere to these following tips when subcontracting.

Tips to Bear in Mind When Obtaining Customer Consent Before Using Their Personal Data

Sometimes businesses will find themselves requesting for diverse information from their customers to effectively provide them with goods and/or services. The Data Protection Act, No. 24 of 2019 sets out certain obligations that businesses taking possession of such personal data must undertake to fulfil.

Minority Party Protection in a Joint Venture to Transaction

A joint venture (JV) may be structured in many ways depending on the objectives of the parties to the JV. A commonly used structure being the incorporation of a limited liability company that the parties jointly own. The board of directors in a JV ideally owe a fiduciary duty to the JV.

How Contractors Can Protect Themselves Against Insolvency of Developers

Secure your construction business against the financial risks of developer insolvency with our expert legal strategies. Learn key safeguards, from credit checks to smart contract clauses, to ensure your payments and projects are protected. Read our essential guide now for peace of mind in your contracting ventures.

Tips for Managing Disputes in a Joint Venture Relationship

A joint venture is a business transaction entered into by two or more independent parties with a view to combining their resources to achieve a business objective. Disputes are, however, common in joint ventures. These tips are useful in mitigating the possibility of disputes in a joint venture relationship

Benefits of Using a Family Trust to Manage Your Assets

A family trust is a valuable and convenient tool for use in managing one’s assets while still alive. It is a non-trading legal entity that is registered for the purposes of planning and managing a person’s estate normally with the intention of preservation or creation of wealth for generations.

The Concept of Utility Models in Kenya

A utility model is a patent-like intellectual property right to protect inventions. Although a utility model is similar to a patent, it is generally cheaper to obtain and maintain, has a shorter term, shorter grant lag, and less stringent patentability requirements.

Disputing Erroneous Information Appearing on Your Credit Report at CRB

Given that a credit report affects many parts of one’s life, it is important to review the information carried on it regularly to ensure it is free from incorrect information including misspelling of one’s name. Inaccuracies to a credit report should be reported or disputed with the CRB immediately one notices them.

Important Considerations When Entering into a Joint Venture

A joint venture is a contractual business undertaking between two parties or more where the parties pool, exchange and/or integrate their resources with a view to realizing profit and mutual gain. These are the important factors to be considered before entering into a joint venture in order to minimize the risk of things going awry.

Common Uses and Financing of Companies Limited by Guarantee

A company limited by guarantee is a company that does not have a share capital. The liability of its members is limited by the company’s articles of association to the amount that the members undertake, by those articles, to contribute to the assets of the company in the event of liquidation of the Company.

Requirements for Registration of Trademarks in Kenya

A trademark is a type of intellectual property consisting of a sign, design or expression which identifies products or services of a particular source from those of others. Registering a trademark confers exclusive ownership and safeguards the owner from infringement. These are the requirements for registration of a trademark in Kenya.

Where Outbreak of COVID-19 frustrates the Performance of a Contract

A possible consequence of the outbreak of COVID-19 is that a party to a contract entered into prior to the outbreak may argue that the contract has been frustrated and that the party is discharged from further performance of obligations under the contract

Methods by Which Protection Can be Accorded to Minority Shareholders in a Company

Minority shareholding in a company may take a variety of forms. In order to safeguard the interests of minority shareholders certain provisions can be included in the Articles of Association of the Company or in a Shareholders’ agreements.

Rights of an Employee Where Employer Unilaterally Changes Contractual Terms of Employment

In as much as some employers may be genuinely unable to meet contractual obligations due to employees on account of the pandemic or other difficult circumstance, there is need to consult with employees and thereafter communicate with them in writing before effecting fundamental changes to their contractual terms of employment.

Managing the Adverse Effects of an Economic Downturn on Employee Remuneration

The economic downturn expected in the wake of the corona virus pandemic has forced businesses to employ a number of cost cutting measures in order to maintain operations. One of the measures that has been effected by many companies is reduction in employee remuneration.

Starting the Process of Administration of the Estate of a Deceased Person in Kenya

It is prudent to administer the Estate of a deceased person within a reasonable time to avoid disputes that invariably arise when the process is delayed. The process starts as follows:

Helpful Tips for Succession Planning

A good succession plan gives one a measure of control over matters of administration of his estate upon death. Without a proper succession plan in place, important decisions over ones estate are usually left up to a court determination with the attendant delays and costs.

Your Legal Rights When Facing Redundancy

Do you know your legal rights when facing redundancy? These are the legal rights of an employee whose employment is terminated on account of redundancy.

What Do I Do with a Company I Registered But No Longer Wish to Use?

If left unattended, statutory obligations relating to a company result in financial penalties to the directors of a dormant company which over time may rise to significant sums.

Preparing a Partnership Agreement; 5 Key Matters We Forget to Include

When preparing a partnership deed or partnership agreement certain pertinent matters tend to be forgotten yet they are important for the sustainable operation of a partnership. Five such matters are as follows.

What You are Entitled to After Employment Termination

Do you know what you are entitled to after employment termination? An employee whose employment has been terminated other than by summary dismissal is entitled to these rights and benefits.

Legal Position Where You are Made to Quit Employment Due to Intolerable Working Conditions

Are you considering quitting employment due to intolerable working conditions? This is the legal position on cessation of employment brought about by an employer making the employee’s working conditions so intolerable that the employee feels compelled to leave.

Impact of COVID-19; Handling of Events That are Beyond the Control of Parties to a Contract

Some contracts include a ‘force majeure clause’ which provides that on the happening of a specified event that is beyond the control of the parties’ to the contract, either of the said parties has recourse to do the following.

The Place of Discharge Vouchers in Termination

Discharge vouchers or settlement agreements are used by employers to ensure that employees relinquish any claims they may have against the employer. The courts have held that once an employee signs a discharge voucher then he cannot claim against the employer.

Legal Safeguards Availed to a Tax Payer Where KRA Oversteps its Powers in Demanding Disputed Taxes

A tax payer can obtain orders allowing it to continue with its business where KRA hinders such business by demanding payment of a disputed tax demand in spite of existence of tax refunds capable of off-setting the disputed tax.

Companies Limited by Guarantee

Are you engaged in a not for profit venture in Kenya and are uncertain over the type of entity to use? Why not register a company limited by guarantee which has the following features.

Tips for Effective Recovery of Business Debts

First, make follow-up on sums owed by written correspondence so as to have ready record trail minimizing phone-calls which may not provide an easy record trail.

5 Important Aspects of Due Diligence to Perform Before Buying Land

Conducting an official search before purchasing property only shows the current legal owner of the property and may not bring out other pertinent information about it. Here are other measures a buyer needs to take when doing their due diligence on a property.

Redundancy Procedure in Kenya

One of the statutory prerequisites for a redundancy procedure in Kenya is that the employer has to give written notification to the targeted employees at least one month before the commencement of the intended redundancy. There are other prerequisites for this process.

Hidden Charges in Land Transactions

Often, parties to a land transaction focus on the purchase price and forget about other additional charges that may arise in the course of the transaction. These charges may seem negligible, but could sum up to a substantial amount.

Legal Aspects to Consider when Starting a Business

When starting a business, it is important to consider the legal aspects. This not only ensures that your business is legally compliant but also limits interruptions due to non-compliance. You may involve a lawyer who will advise you on the following aspects.

Basic Rights of an Employee that is Summoned to a Disciplinary Hearing

An employee that is not accorded his basic rights may succeed in legal action against an employer who proceeds to terminate his employment following a disciplinary hearing process.

Principles of a Reinstatement Order

A reinstatement order ensures that the employee is restored to the same position he held, or a substantially similar position, prior to termination of employment with full pay and other benefits. These are the principles applicable to a reinstatement order.

5 Factors to Consider before Suing for Breach of Contract

Instituting a civil suit as a result of breach of contract could seem like the best option when the party in breach of the contract is not willing to rectify the breach or perform their part of the contract. However, there are factors you need to consider before filing the suit.