memorandum on proposed legislative amendments to ...€¦ · covid-19 legislative review laws of...

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MEMORANDUM ON

PROPOSED LEGISLATIVE AMENDMENTS

TO AMELIORATE IMPACT OF

COVID-19 IN KENYA

12TH APRIL, 2020

COVID-19 LEGISLATIVE REVIEW LAWS OF KENYA

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Table of Contents

1 INTRODUCTION .............................................................................................................................. 5

DEFINITIONS: .................................................................................................................................. 8

2 EXECUTIVE SUMMARY OF KEY ISSUES AND RECOMMENDATIONS MADE IN MEMORANDUM . 9

3 COMPANY LAWS AND CAPITAL MARKETS LAWS (LISTED AND UNLISTED COMPANIES (PRIVATE

AND PUBLIC)) ........................................................................................................................................ 23

3.1 Companies Act, No. 17 of 2015 – Provisions Relating to All Companies ............................ 23

3.2 CAPITAL MARKETS/LISTED COMPANIES .............................................................................. 31

3.2.1 Companies Act, No. 17 of 2015 (provisions relating to listed companies) ................. 31

3.3 Capital Markets Act No. 17 of 1989 ..................................................................................... 35

3.4 The Capital Markets (Securities) (Public Offers, Listing and Disclosures) Regulations, 2002

and Circular No. 1 of 2017 Issued by the Capital Markets Authority ............................................. 37

3.5 The Capital Markets (Foreign Investors) Regulations, 2002 ............................................... 43

4 COMMERCIAL AND OTHER BUSINESS LAWS ............................................................................... 44

4.1 Data Protection Act, 2019 .................................................................................................... 44

4.2 Partnership Act No. 16 of 2012 ............................................................................................ 47

4.3 Limited Liability Partnership Act No. 42 of 2011 ................................................................. 47

4.4 Competition Act, 2010 (the Competition Act) and the Competition Tribunal Rules, 201749

4.5 Kenya Information and Communications Act, No. 2 of 1998 ............................................. 58

4.6 Kenya Communications (Appeals) Rules, 1999 ................................................................... 61

4.7 Hire Purchase Act (Chapter 507, Laws of Kenya) ................................................................ 62

4.8 Oaths and Statutory Declaration Act, Chapter 15, Laws of Kenya ..................................... 63

4.9 Computer Misuse and Cybercrimes Act No. of 2018 .......................................................... 65

4.10 Copyright Act, No. 12 of 2001 .............................................................................................. 66

4.11 Trade Marks Act, Chapter 506, Laws of Kenya .................................................................... 69

4.12 The Industrial Property Act, 2001 and the Industrial Property Tribunal Rules, 2002 ........ 82

5 HEALTHCARE LAWS, PUBLIC ORDER AND PUBLIC FINANCE MANAGEMENT LAWS .................. 84

5.1 The Public Finance Management (Covid-19 Emergency Response Fund) Regulations, 2020

…………………………………………………………………………………. ……………………….…………………………84

5.2 Public Health (Prevention, Control and Suppression of Covid-19) Regulations, 2020 ...... 88

5.3 Medical Practitioners and Dentists Act ............................................................................... 91

5.4 Medical Practitioners and Dentists (Training Assessment and Registration Rules), 2014 92

5.5 The Public Health Officers (Training, Registration and Licensing) Act, 2013 ..................... 93


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5.6 Clinical Officers (Training, Registration and Licensing) (Act No. 20 of 2017, Laws of Kenya)

…………………………………………………………………………………. ……………………….………………………..95

5.7 Health Records and Information Managers Act (Act No. 15 of 2016, Laws of Kenya) ...... 96

5.8 Occupational Safety and Health Act (Act No. 15 of 2007, Laws of Kenya) ......................... 96

5.9 Physiotherapists Act No. 20 of 2014, Laws of Kenya .......................................................... 98

5.10 Nurses Act, Cap 257 Laws of Kenya ..................................................................................... 99

5.11 Human Tissues Act Chapter 252, Laws of Kenya ............................................................... 100

5.12 Medical Laboratory Technicians And Technologists Act No. 10 of 1999, Laws of Kenya 101

5.13 Medical Laboratory Technicians and Technologists (Election) Regulations, 2015 .......... 102

5.14 Mental Health Act, Cap 248, Laws of Kenya ...................................................................... 102

5.15 Mental Health Act (Board Meetings) Regulations, 2000 .................................................. 103

5.16 Public Order Act Cap 56 Laws of Kenya ............................................................................. 103

6 INSURANCE LAWS ...................................................................................................................... 105

6.1 Insurance Act, Cap 487, Laws of Kenya ............................................................................. 105

6.2 Insurance Regulations, 1986 .............................................................................................. 107

6.3 Insurance (Motor Vehicles Third Party Risks) Act Chapter 405 ........................................ 108

7 EMPLOYMENT AND IMMIGRATION .......................................................................................... 109

7.1 Employment Act, 2007 ....................................................................................................... 109

7.2 The National Hospital Insurance Fund Act, 1998 (NHIF Act) ............................................ 113

7.3 The National Social Security Fund Act, 2013 (NSSF Act) ................................................... 114

7.4 Industrial Training Act, Chapter 237 Laws of Kenya ......................................................... 114

7.5 Industrial Training (Training Levy) Order, 2007 ................................................................ 115

7.6 Kenya Citizenship and Immigration Act, 2011 .................................................................. 116

7.7 Employment Act Chapter 226 of 2017 & Employment and Labour Relations Court

(Procedure) Rules, 2016 ................................................................................................................. 121

8 INSOLVENCY ............................................................................................................................... 125

8.1 The Insolvency Act 2015 and the Insolvency Regulations 2016 ....................................... 125

9 REAL ESTATE ............................................................................................................................... 135

9.1 Land Act, No. 6 of 2012 ...................................................................................................... 135

9.2 The Rating Act (Chapter 267, Laws of Kenya) ................................................................... 139

9.3 The Land Registration Act, No. 3 of 2012 .......................................................................... 140

9.4 The Land Control Act (Chapter 302) .................................................................................. 142

10 CONSTRUCTION (INCLUDING REAL ESTATE CONSTRUCTION) .............................................. 144

11 PROJECTS & INFRASTRUCTURE .............................................................................................. 145


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11.1 Public Procurement and Asset Disposal Act, 2015 (PPADA) ............................................. 145

11.2 Energy Laws ........................................................................................................................ 153

11.3 Construction and development laws ................................................................................. 155

12 FINANCE .................................................................................................................................. 163

12.1 Companies Act, No. 17 of 2015. ......................................................................................... 163

12.2 Land Registration Act, No. 3 of 2012. ................................................................................ 165

12.3 Stamp Duty Act, Chapter 480. ............................................................................................ 165

12.4 Land Control Act, Chapter 302 ........................................................................................... 167

13 WILLS AND SUCCESSION ........................................................................................................ 168

13.1 Law of Succession Act, Cap 160 ......................................................................................... 168

14 LITIGATION ............................................................................................................................. 170

14.1 Arbitration Act No 4 of 1995 .............................................................................................. 170

14.2 Public Authorities Limitation Act Chapter 39, Laws of Kenya .......................................... 170

14.3 The Environmental Management and Co-Ordination Act, 2003 and The National

Environmental Tribunal Procedure Rules, 2003 ............................................................................ 171

14.4 Energy Act (the Energy and Petroleum Tribunal) .............................................................. 172

14.5 Environment and Land Court, 2011 ................................................................................... 173

14.6 Limitation of Actions Act, Cap. 22, Laws of Kenya ............................................................ 173

14.7 Supreme Court Rules, 2012 ................................................................................................ 177

14.8 Civil Procedure Act and Civil Procedure Rules .................................................................. 183

14.9 Appellate Jurisdiction Act and Court Of Appeal Rules ...................................................... 183

14.10 Tax Appeals Tribunal Act, 2013 .......................................................................................... 185

15 TAX .......................................................................................................................................... 186


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1 INTRODUCTION

1.1 Background

The COVID-19 pandemic has resulted in widespread economic shocks across the world that have necessitated a significant shift not only in our day to

day lives but in how businesses are operating and how businesses will continue to operate during the subsistence of the pandemic and in the aftermath.

In view of the various constraints relating to the pandemic, businesses are concerned that their ability to comply in a timely manner with various

statutory obligations may be impaired during this period.

To this end, our firm, working in consultation with a number of clients operating businesses in various sectors of the Kenyan economy, as well as

relevant industry associations, has reviewed a broad cross-section of the laws relating to different types of business entities (such as companies and

limited liability partnerships and listed entities) in the context of commercial transactions, healthcare, insurance, employment, insolvency, banking and

finance, real estate, construction, projects and infrastructure and energy laws, amongst others. We have also reviewed the relevant rules of civil

procedure and procedural rules of courts and tribunals in relation to dispute settlements in Kenya.

In conducting this exercise we have taken cognisance of the regulatory and legislative responses to the pandemic in other markets who have a little

earlier than us been exposed to the effects of COVID-19.

In conducting our review, we have focused on those legislative provisions the amendment of which would have broad impact and benefits for

businesses in Kenya as a whole. We have therefore not sought to review in depth the laws relevant to each industry or business sector, but to focus on

laws with a broader impact across all sectors. In this memorandum we have also not addressed legislative proposals relating to taxation. As you may

be aware our firm actively engaged in liaison with the National Treasury and the business community in respect of the recently proposed tax measures

in response to the COVID-19 pandemic.

We have had more than 30 lawyers from our firm working on this initiative and have also had the kind support of Slaughter & May, LLP, London who

have conducted a similar exercise in the United Kingdom. We have also had the support of the Commonwealth Secretariat who are deeply engaged

with trying to help nations in the Commonwealth cope with COVID-19 and its aftermath.


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1.2 Contents of the Memorandum

Based on our review of the laws relating to the abovementioned sectors, we have prepared the enclosed memorandum which sets out the following:

a) the statutory provisions that in our view should be urgently considered and amended in order to ameliorate the impact of COVID 19 on the

compliance obligations of businesses operating in Kenya;

b) the rationale for the proposed amendments; and

c) the proposed recommended amendments or remedial measures that should be adopted in this regard.

1.3 Parts of the Memorandum

The memorandum is in two parts as follows:

a) An Executive Summary highlighting some of the key issues identified and recommendations made (a copy of which is annexed to this letter); and

b) The Detailed Memorandum containing our analysis of the specific issues identified and recommendations made in more detail.

1.4 Proposed manner of implementing the proposed amendments: COVID 19 Miscellaneous Amendments Act

We propose that one omnibus Bill (herein referred to as the COVID 19 Miscellaneous Amendments Bill is drafted and tabled in Parliament and Senate

for debate and approval. The Bill would address all the proposed amendments relating to the multiple statutes and laws that would require amendment.

1.5 Conclusion

We respectfully urge the Attorney General’s Office, Parliament and Senate to consider the recommendations contained in this report and to consider

drafting and enacting the enabling legislation (that is the proposed COVID 19 Miscellaneous Amendments Act) required to give the recommendations

the force of law.

Considering the urgency of the current situation and the number of different regulators and interested parties, we have also shared the memorandum

with them, in the hope that this may also assist in facilitating a quicker consideration and broader public participation of the issues.


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It is clear that significant effort will be needed in order to implement the proposed amendments in a timely fashion and we would be available to assist

your office with the drafting of the proposed legislative amendments to the extent required. We would be happy to provide any further information

or clarifications if necessary and we remain at your service in this regard. In addition, we would be available to provide any further technical support

that may be required in connection with the drafting of the enabling legislation.

Needless to say, time is of the essence.


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DEFINITIONS:

GoK End of COVID Gazette Notice – a legal notice issued by the Government of Kenya and published in the Kenya Gazette confirming that the COVID-19

pandemic in Kenya has fully or materially come to an end and requiring other Governmental Offices and Registries (including without limitation, the

Companies Registry, the Lands Registry, the Courts and Tribunals amongst others) to fully re-open and resume normal conduct of day to day business as

existed prior to COVID-19. In various cases we believe that it would be appropriate for certain timelines to commence not immediately from the date of the

Notice but a certain number of days after, in order to allow for back-log issues and for sufficient numbers of people to return to work. It is unlikely that people

will all return at the same time, whether in the private sector or in the Government sector.


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2 EXECUTIVE SUMMARY OF KEY ISSUES AND RECOMMENDATIONS MADE IN MEMORANDUM

We have set out below a summary highlighting some of the key issues identified and recommendations made in the memorandum. This is a non-exhaustive

summary and we recommend that the same is read together with the detailed memorandum.

2.1 Uncertainty on when COVID-19 Containment Measures End and Resumption of Normal Functions

Issue

We note that since the first positive case of COVID-19 was announced in Kenya on 12th March 2020, there have been various directives and restrictions

issued and various actions taken by the President of Kenya, the Government of Kenya and various Governmental bodies and agencies. For instance a

directive was issued by the Capital Markets Authority (CMA) requiring public firms to defer any annual general meetings (AGMs) scheduled before May

2020 to a later date. On 1 April, 2020 the Chief Justice issued directions suspending all court proceedings apart from urgent and essential matters.

Similarly, the Lands Registries, Companies Registry and Business Registration Services unit under the AGs office issued various notices announcing

closures and/or suspension of various service. It is uncertain when these offices will resume normal office functions.

Our recommendation

a) We recommend that once the COVID-19 pandemic in Kenya has fully or materially come to an end in Kenya, a legal notice herein referred

to as the GoK End of COVID Gazette Notice, is issued by the Government of Kenya and published in the Kenya Gazette confirming that

the COVID-19 pandemic in Kenya has fully or materially come to an end and requiring other Governmental Offices and Registries

(including, without limitation, the Companies Registry, the Lands Registry, the Courts and Tribunals amongst others) to fully re-open and

resume normal conduct of day to day business as existed prior to COVID-19.

b) This will create certainty in the country and mark an end not only to the containment measures put in place to control the spread of

COVID-19 but also mark an end to the closure or suspension of various services and the resumption of normal services.

c) The proposals contained in our memorandum below are primarily intended to operate as interim measures and many of these would

come to end upon the publication of the GoK End of COVID Gazette Notice and in some cases for a limited and ascertainable period

thereafter.


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d) In various cases however, we believe that it would be appropriate for certain timelines to commence not immediately from the date of

the Notice but a certain number of days after, in order to allow for back-log issues and for sufficient numbers of people to return to work.

It is unlikely that people will all return at the same time, whether in the private sector or in the Government sector.

2.2 Extension or suspension of timelines

Issue

Under many statutes, there are various strict timelines that are required to be adhered to for making various filings, taking various actions or for exercising

certain rights under law, failing which either penalties ensue for non-compliance or vested rights are lost or other adverse consequences might ensue.

For instance, under the Companies Act, a company is required to lodge with the Registrar copies of certain prescribed resolutions, documents and

agreements within 14 days of the resolution or agreement being passed or made, failing which penalties accrue. Similarly, a company that fails to register

a charge at the Companies Registry within the statutory timeline of 30 days of the date of the charge, is required to seek an order from the High Court in

order to extend the deadline for registration.

However, there has been restricted access to registries (or the registries have been largely closed and are not open for normal business) since the start

of the COVID-19 pandemic which has made it difficult or practically impossible for companies to comply with their statutory obligation to file

resolutions/documents/agreements, Financial Statements and Reports and other documents within the prescribed timelines either through a manual

process or (where the systems permit an electronic filing) electronically.

In addition, even where documents can be filed electronically, if they are required to be stamped with stamp duty prior to filing, companies are unable

to procure stamping of such documents as the Collector of Stamp Duties office has been closed and companies are therefore unable to comply with the

filing obligations electronically until stamping is completed.

Furthermore, due to the containment measures directed by the Government in order to deal with COVID-19, many companies are not able to convene

their Annual General Meetings (AGMs) at which the Financial Statements and other reports and documents can be tabled.


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Our recommendations

We therefore recommend that:

a) the requirement to file hard copies of the documents should be suspended for the duration of COVID-19 and for a limited and ascertainable

period after the GOK End of COVID Gazette Notice is published. During this period, companies should be allowed to file electronic copies, where

electronic filing is possible, and to defer filings where only physical filings are possible;

b) the timelines for taking the various actions or complying with the various statutory obligations be extended until the GOK End of COVID

Gazette Notice is published and for a limited and ascertainable period after the GOK End of COVID Gazette Notice is published. Further, we

anticipate that there will be backlogs once the registries and other offices resume normal operations and in order to cater for such backlogs,

we recommend that for a limited period of time following the end of COVID-19, the applicable timelines be extended as appropriate to cater

for such backlogs. The pre-existing timelines would continue to apply thereafter; and

c) in relation to registration of securities, the requirement to seek a court order to extend the deadline for registration of securities is waived

until after the GOK End of COVID Gazette Notice is published and for a limited and ascertainable period after the GOK End of COVID Gazette

Notice is published. Alternatively, the power can be given to accessible officials (e.g. registrars at the Companies Registry who should be

designated to render such services).

2.3 Waiver of penalties under statutes and other obligations

Issue

As mentioned above, there are various penalties that accrue for failure to undertake various actions or file certain documents within the prescribed

timelines.

Our recommendation

We recommend that all the penalties and other liabilities for non-compliance relating to matters where delay or non-compliance is as a result of COVID-

19 are waived for the duration of the COVID-19 pandemic until after the GOK End of COVID Gazette Notice is published and for a limited and ascertainable

period after the GOK End of COVID Gazette Notice is published.


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2.4 Stamp Duty Penalties

Issue

Under the Stamp Duty Act, registrable instruments must be lodged for stamping within a period of 30 days from the date of execution or in the case of a

foreign document, from the date the document is brought into Kenya. The failure to stamp a document can result in the document being declared

inadmissible as evidence in any court proceedings, the inability to register the document and there are significant penalties payable for late payment of

stamp duty (penalties can be up to 100% of the initial amount of stamp duty).

However, due to the containment measures directed by the Government in order to deal with COVID-19, the Office of the Collector of Stamp Duties has

been largely closed during this period and hence parties are unable to procure stamping of documents. In addition, in relation to real estate documents,

before stamping can be undertaken, the Collector of Stamp Duties is required to refer a Government appointed valuer to undertake valuation of the

property – this has not been possible due to the containment measures directed by the Government.

Our recommendations

We recommend that:

a) the requirement to stamp documents within 30 days be suspended for the duration of the COVID-19 pandemic in Kenya until the date the GOK

End of COVID Gazette Notice is published and for a limited and ascertainable period after the GOK End of COVID Gazette Notice is published;

b) the period between the closure of the Lands Registry and Collector of Stamp Duties Office (17 March 2020) until the date the GOK End of COVID

Gazette Notice is published should not be factored when computing the time prescribed under the Stamp Duty Act. Furthermore, in order to

deal with the backlogs that will ensue once normal office operations have resumed after the end of COVID-19, the timelines for stamping

documents should be extended to 60 days for a limited period of time. The pre-existing timeline of 30 days would continue to apply thereafter;

and

c) all the penalties and other liabilities for non-compliance are waived for the duration of the COVID-19 pandemic until the GOK End of COVID

Gazette Notice is published.


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2.5 Granting of interim powers in certain circumstances

Issue

There are a number of matters in relation to which certain actions cannot be undertaken during this period by the persons on whom the requisite powers

are vested. In order to avert a crisis or adverse consequences ensuing, there is need to vest interim powers on alternative persons until the end of COVID-

19. For instance, a public company is required to appoint its auditor by ordinary resolution in a general meeting at which the company's annual financial

statement for the previous financial year is presented.

However, the Capital Markets Authority (CMA) issued a directive requiring public firms to defer any annual general meetings (AGMs) scheduled before

May 2020 to a later date. As such, it would be difficult for public companies which have not already held their AGMs to appoint auditors within the

required timeline.

Our recommendation

We recommend that directors of a public company be granted the powers to appoint the company’s auditors without seeking approval of the

shareholders of the company until the GOK End of COVID Gazette Notice is published and for a limited and ascertainable period after the GOK End of

COVID Gazette Notice is published. Similar interim powers may need to be considered in other sectors as necessary.

2.6 Reduction in certain fees e.g. merger and other investment transactions filing fees in healthcare sector and in insolvency situations

Issue

Currently, filing fees payable to the Competition Authority of Kenya (CAK) in relation to proposed mergers and other investment transactions which result

in a change of control of up to KES 4 Million apply to all sectors including the healthcare sector and to all transactions which result in a change of control,

including transactions in insolvency or business-rescue situations.

The COVID-19 pandemic has revealed the weakness in the healthcare system and infrastructure not only in Kenya but also globally. The COVID-19

pandemic has crippled healthcare infrastructure in many countries giving rise to the call for the revamping of healthcare across the world and particularly

the developing countries such as Kenya. In this regard, investments to the healthcare sector should not be delayed or prevented due to payment of

significant merger filing fees which would have otherwise been invested in the healthcare infrastructure.


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Similarly, based on the current and projected financial implications of COVID-19 on businesses, many parties are unlikely to be in a position to afford

paying the higher merger filing fees, particularly in industries which have been most negatively affected by the COVID-19 pandemic (e.g. aviation,

restaurant and entertainment businesses, horticulture sector, transport etc).

In addition, some businesses are likely to face insolvency and will require equity investment or consider business-rescue options that may involve disposals

of parts of their business. The high merger and other transaction filing fees would not be appropriate in such transactions.

Our recommendations

We therefore recommend:

a) that filing fees relating to mergers or other transactions in the healthcare sector and other key sectors necessary to address pandemics be

reduced significantly during the period of the COVID-19 pandemic and for a sufficient period thereafter until there has been reasonably sufficient

investment in the sector to address the healthcare needs in the country;

b) a reduction or waiver on filing fees for proposed mergers or transactions that relate to industries that have been most negatively affected by

the COVID-19 pandemic (such as aviation, restaurant and entertainment businesses, businesses in the horticulture sector, transport etc.); and

c) a waiver on filing fees for transactions taking place in the context of insolvency or business-rescue.

2.7 Allowing certain prohibited conduct which is necessary for control of pandemics

Issue

Under the Competition Act, there is a blanket prohibition against entities from engaging in certain conduct which is classified as restrictive trade practices

(RTPs) (examples include: price fixing, division of markets, collusive tendering and tying and bundling) without obtaining an exemption from the CAK.

However, there is certain conduct which falls within the prohibited RTPs which many need to be undertaken and if allowed in limited circumstances would

go a long way in controlling the spread of COVID-19, provide essential products or address other emergency needs during pandemics. This would include,

for instance:

a) allocation of geographic regions among manufacturers and/or distributors to ensure that volumes of personal protective equipment, personal

hygiene products and medical equipment are sufficiently availed in all affected geographic regions in the country. This may be useful where there


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are restriction on movement of people and/or cargo;

b) bundling of certain products (face masks and hand sanitizers) to ensure consumers have the necessary tools to control COVID 19;

c) having medical facilities to deal with only COVID-19 cases and no other cases and vice versa to control the spread of COVID 19; and

d) setting prices of personal protective equipment, personal hygiene products and medical equipment to ensure that consumers can afford the

products.

Under the current provisions of the Competition Act, engaging in any of the RTPs above without the specific approval of the CAK is prohibited and such

conduct attracts strict penalties and sanctions. The process of obtaining such approval is lengthy and costly and it is likely to be impracticable for parties

to seek such exemptions in a timely and cost-efficient fashion during a pandemic. Private entities may be reluctant from contributing to the control of

COVID-19 and other pandemics that may arise in future due to the high risks that they could be found to be in breach of the competition laws.

Our recommendations:

We recommend that the Competition Act and Rules be amended to introduce a “block exemption” excluding the prohibition of certain restrictive trade

practices (RTPs) if such RTPs would be necessary to control a pandemic or manage a national disaster.

2.8 Easing the redundancy process and making allowance for businesses to be able to have flexibility with employees

Issue

Under the Employment Act and case law precedents in Kenya, employers are required to consult with and obtain the consent of their employees before

effecting any changes to the employees’ terms and conditions of employment. In addition, the Employment Act is silent on whether employers can send

employees on unpaid leave. The Act also does not address the issue of part time workers and assumes that all workers are full time workers or casual

workers only.

The COVID-19 pandemic has forced a number of employers in Kenya to reduce the working hours, salaries and benefits paid to their employees in light

of the financial difficulties that businesses are facing. Having consultations with the employees in this respect and obtaining their consent before effecting

the changes is not practical in this situation especially given that the law is silent on what should happen should the employees refuse to consent to the

proposed changes.


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In addition, where an employer has no option but to contemplate letting go of its employees either for a limited period or permanently, an employer is

required to follow detailed and lengthy processes when terminating a contract on account of redundancy. These include a requirement to issue certain

notices and to consult with employees and trade unions which can extend the process to at least 2 months.

Furthermore, in practice, an employer cannot rehire for a position that has been declared redundant for a 1 year period following the effective date of

the redundancy which would make it difficult for employers to subsequently refill the positions declared redundant once COVID-19 ends.

Our recommendations

We recommend that:

a) the requirement to have consultations with the employees and seek their consent be suspended for the duration of the COVID-19 pandemic in

Kenya. This should be subject to the employer having to prove that they are facing significant financial difficulty and need to make the changes

because of the downturn in business caused by the pandemic;

b) the employment laws should recognise part time workers to enable employers to employ on a part time basis (and annual leave and other leave

entitlements should reduce proportionately for part time workers)

c) the law should be amended to allow employers who are able to demonstrate that they have no other alternative but to send their employees

on unpaid leave to send such employees on unpaid leave after any accrued paid leave has been exhausted for the duration of the COVID-19

pandemic in Kenya; and

d) In relation to redundancies, the requirement for the consultation period is shortened to 21 days. Furthermore, employers should be allowed to

pay redundancy dues in 2 or 3 instalments depending on their financial position and employers should be allowed to re-employ people to fill

roles declared redundant during the COVID-19 pandemic if things return to normal earlier than 12 months.

2.9 Electronic witnessing and attestation or commissioning of documents

Issue

There are multiple laws which require certain documents to be executed in the presence of a witness. For instance, under the Companies Act, certain

documents are required to be attested by a witness. Similarly, under the Oaths and Statutory Declaration Act, a commissioner for oaths before

administering an oath must satisfy himself that the person named as the deponent and the person before him are the same. In addition, under the

Land Act, certain documents relating to land transactions are required to be executed and witnessed by an Advocate or other designated person in


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person.

Furthermore, pursuant to the Law of Succession Act, a person making his will is required to sign his will in the presence of two independent witnesses.

In light of the government directives in relation to social distancing and restriction of movement of persons and other containment measures on

account of the COVID-19 pandemic witnessing of signatures in the physical presence of both the signatory and the person witnessing may not be

possible or practical or be encouraged.

Our recommendation

We recommend that amendments be made to allow for remote or virtual witnessing, attestation or commissioning of such documents and that

documents witnessed in this manner are admissible as if they had been witnessed, attested or commissioned in person. This may be achieved by

allowing parties to execute documents by way of a video conference which can be recorded as evidence of the intention of the parties. Alternatively,

the witness could be allowed to attest the signature upon the acknowledgement of a signature by the signatory in the absence of actual witnessing.

2.10 Court Proceedings and Service of Documents

Issue

In relation to disputes which are referred to court for settlement, there are various statutory time limitations that apply. This will be problematic if any

of these timelines expire during the COVID-19 period. Similarly, for ongoing court cases, there are relatively short timelines within which various

pleadings and submissions or responses thereto are required to be filed, failing which a litigant’s position could be in jeopardy. This has the serious

likelihood of limiting access to justice in the country.

However, there is restricted access to court registries (or the registries have been largely closed and are not open for normal business) since the start

of the COVID-19 pandemic in Kenya which has made it difficult or impossible for parties to file their pleadings through the manual process. There are

also practical challenges with the electronic filing and only urgent and time bound matters are accepted for filing. On 1 April, 2020 the Chief Justice

issued directions suspending all court proceedings apart from urgent and essential matters, and therefore parties many not be able to file matters that

are not considered urgent or essential.

Our recommendations


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We recommend that:

a) the requirement to file hard copies of the documents and pleadings should be suspended for the duration of COVID-19 until the GOK End of COVID

Gazette Notice is published and for a limited and ascertainable period after the GOK End of COVID Gazette Notice is published. During this period,

parties should be allowed to file electronic copies, where this is possible;

b) the timelines for filing various pleadings and documents be extended;

c) in the event that the limitation period for filing a civil or other action is set to lapse during the duration of the COVID-19 pandemic in Kenya the

limitation period be extended for a period of 90 days after the date on which the GoK End of COVID Gazette Notice is published; and

d) we note that only matters filed under certificate of urgency may be heard via video/audio conferencing and ruling delivered electronically. However,

we recommend that all Courts and Tribunals consider holding virtual hearings or adopting the measures outlined by the National Council on the

Administration of Justice on 15 March 2020, such as holding hearings in the open with only the relevant parties present in order to ensure continued

access to justice.

2.11 Insolvency

Issue

There is no doubt that the Covd-19 pandemic has caused or will cause most businesses to suffer a significant drop in revenue. Under our insolvency

regime, companies are obliged to trigger an insolvency process if they are insolvent. Many businesses will fall in this category if the pandemic continues

in Kenya. Creditors have the right to petition the courts to wind up a company that has not paid its debt on the due date - the size of such debt is any

amount above KES 100,000. Given the number of defaulting businesses and to avoid a massive number of businesses being wound up, companies

should be given breathing room to consider rescue and other measures to survive.

The existing administration regime that allows business rescue under a formal process will not be appropriate during the Covid-19 pandemic for a

number of reasons including that, there are only around 30 insolvency practitioners who could act as an administrator. Questions also arise on who

will pay for the administrator during this process if there are insufficient funds in the business? How can the administrator manage the business as a

going concern as the directors cannot act without his consent? Further, the purpose of administration is to give the administrator the room to rescue

the business within 12 months and to give proposals to creditors within 60 days. We do not know how long the COVID-19 pandemic will last.


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Directors who continue to trade risk personal liability under the concept of wrongful trading under the Insolvency Act. This arises in situations where they

continue the company’s business either knowing that the company may not have sufficient funds to avoid a liquidation.

The COVID-19 pandemic therefore requires a tailor made process to shield businesses and their directors.

Our recommendations

We recommend:

a) The introduction of procedure allowing a company that is in financial distress to make an application to court (under a prescribed form) for a

stay on all applications seeking to liquidate it during the COVID-19 period. The application can be called a COVID-19 Stay Application.

b) Once the COVID-19 Stay Application is lodged and approved, a company will have a moratorium of 2 months to come up with structures or

proposals that can be adopted to shield the company from the negative effects of COVID-19. The moratorium should be modelled on the

already existing moratorium under section 560 of the Insolvency Act that relates to administration.

c) During the moratorium the directors continue in office subject to reporting to a Supervising Administrator (who is a licensed insolvency

practitioner) as they try and maintain the business as a going concern.

d) Within 14 days of expiry of the moratorium the Supervising Administrator would be required to file a report with the court confirming

either:

i. that the company’s proposal for a COVID-19 Administration has a likelihood of success; or

ii. that the COVID-19 Administration will not be successful or the company is unlikely to recover.

e) The court will thereafter make an order placing the company in COVID-19 Administration or order for liquidation.

f) While a company has lodged a COVID Stay Application it will not be deemed to be insolvent.

g) During COVID-19, the provisions relating to wrongful trading shall not apply to any insolvency process that is undertaken and/or commenced

whilst the pandemic is ongoing and for a reasonable period after it has ended.

2.12 Licensing and creation of E-Licensing Portals

Issue

We note that in a number of sectors, individual or businesses may require licences to be issued or licences that are currently in issue may expire or


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require renewal during the COVID-19 period. For instance, under the Medical Practitioners and Dentists Act and a medical practitioner or dentist is

required to apply for renewal of the license in the prescribed form at least 30 days before its expiry. Similarly, under the Public Health Officers

(Training, Registration and Licensing) Act and the Clinical Officers (Training, Registration and Licensing) Act, there are requirements for public health

officers and clinical officers to apply for renewal of their licences and timelines within which the licensing bodies are required to process the

application.

In addition, under the Energy Act, there are requirements for annual renewals and payments of annual licence fees in respect of various licences,

failing which such licences may be revoked.

However, in light of the containment measures directed by the Government, it may not be possible for parties requiring licences to submit applications

or the holders of existing licences that require renewal to procure timely renewals of their licences or remit the annual licence fees for the licensing

authorities to process the licence or renewal applications in a timely manner.

We also note that a lot of the licensing authorities have not put in place online or electronic systems to facilitate processing of licence application or

payment of annual licence fees.

The consequences for parties not being able to procure licences or the renewal or payment of annual licence fees during COVID-19 could be severe

for the businesses involved and the country at large.

Our recommendations

We recommend that the respective laws should also be amended to provide that:

a) All relevant licences coming up for renewal during the COVID-19 period should also be automatically renewed for period of 6 months, particularly if

an electronic renewal process cannot be put in place;

b) The waiver any penalties for non-renewal in timely manner or the failure to pay annual licence fees in a timely manner arising out of COVID-19; and

c) The licensing authorities to consider putting in place e-licencing portals which facilitate online application for licences or licence renewals and

electronic payments for the licence fees.


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2.13 Rent abatement for low income earners

Issue

Landlords of residential and commercial premises have the right of re-entry and the right to exercise forfeiture should the tenant fail to pay rent and

other payments. There has been a downturn in economic activity due Covid-19 and the containment measures directed by the Government in an

effort to contain the COVID-19 pandemic. This has also led to reduced revenue and as well as depressed cash flows for a number of tenants from

their businesses.

The low-income earners e.g. casual workers and persons working in the informal (jua-kali) sectors and other low-income earners are amongst the

most negatively impacted economically e.g. due to loss of jobs, unpaid leave, closure of their businesses etc and their ability to pay rent for residential

properties is significantly impaired. The eviction of such persons and their families from their residential premises due to the inability to pay rent

would have significant negative social implications.

Similarly, informal sectors and small businesses will be considerably negatively impacted by COVID-19 due downturn in economic activity and their

inability to pay commercial rents will also be significantly impaired. This could lead to closure of their businesses which could result in further

consequences at a broader level.

Such persons have limited bargaining powers and are also unlikely to be in a position to easily shift to cheaper premises.

The proposed amendment will provide relief for residential and commercial tenants in the lower-income brackets who are unable to pay the usual

rent during the COVID-19 period from forfeiture of the premises or from the landlord exercising other remedies. The proposed amendments will also

provide both tenants in the low-income brackets and their landlords time to negotiate structured payments and reach voluntary arrangements about

rental and other payments.

Our recommendations

We recommend that:

a) In relation to both residential and commercial premises where the rental payments are KES 10,000 per month or below:

i) the right of landlords to exercise enforcement remedies such as the right of re-entry and forfeiture, to levy distress or take any other legal

proceedings against tenants where tenants have breached the covenant to pay rent be suspended for the duration of the COVID-19 pandemic

in Kenya and for a period of at least 60 days after the GOK End of COVID Gazette Notice is published; and


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ii) at the end of the aforesaid period, the landlords would have the right to recover any unpaid rents and other sums relating to the COVID-19

period when the tenants were allowed a rent abatement.

b) In relation to both residential and commercial premises where the rental payments are between KES 10,000 – KES 25,000 per month and who were

not in breach prior to COVID-19:

i) there is an automatic temporary reduction of 30% to the monthly rent for the duration of the COVID-19 pandemic in Kenya and for a period

of at least 60 days after the GOK End of COVID Gazette Notice is published (tenants will however continue to pay any service charges that

were payable under their leases or licences prior to COVID-19); and

ii) at the end of the aforesaid period, the landlords would have the right to recover any unpaid rents and other sums relating to the COVID-19

period (including the temporary reduction amount of 30%) when the tenants were allowed a rent abatement.

c) In relation to both residential and commercial premises where the rental payments are above KES 25,000 per month, both tenants and landlords are

encouraged to negotiate structured payments and reach voluntary arrangements about rental and other payments during the COVID-19 pandemic

period but that this is not legislated by statute in order not to unduly interfere with contracts.


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MEMORANDUM OF ISSUES AND RECOMMENDATIONS ON LEGISLATIVE AMENDMENTS

3 COMPANY LAWS AND CAPITAL MARKETS LAWS (LISTED AND UNLISTED COMPANIES (PRIVATE AND PUBLIC))

3.1 Companies Act, No. 17 of 2015 – Provisions Relating to All Companies

(Note: we have included some additional specific proposals relating to listed companies in paragraph 3.2.1 below)

No Law Summary of Current Requirement

Issue & rationale for proposed amendment Proposed amendment

a) Companies Act, No. 17 of 2015

S. 13(6): A subscriber’s signature is required to be attested by a witness in respect of the articles of association of a company.

Requirement for execution in the presence of a witness. Rationale for proposed amendment In light of the government directives in relation to social distancing and restriction of movement of persons on account of the COVID-19 pandemic witnessing of signatures in the physical presence of both the signatory and the person witnessing may not be possible or practical or be encouraged.

We recommend that: i) video witnessing/ attestation of documents

that require to be executed in the presence of a witness are provided for without the need for the physical presence of both the signatory and the person witnessing;

ii) alternatively, the witness could be allowed to

attest the signature upon the acknowledgement of a signature by the signatory in the absence of actual witnessing; and

iii) where electronic signatures are used for purposes of executing documents, it is made clear that an electronic signature is capable of being witnessed and attested.

S. 37: Execution of documents

All other provisions of the Companies Act which require execution of documents in the presence of a witness or attestation or commissioning or documents or other similar requirement.

b) Companies Act, No. 17 of 2015

S. 24 & 25: If a company amends its articles, it is required to lodge with

Timelines for filings and the consequential penalties for non-compliance.

We recommend that: i) the requirement to make filings be

suspended for the duration of the COVID-19


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the Registrar a copy of the articles as amended within 14 days from the date of the resolution.

Rationale for proposed amendment There has been restricted access to registries (or the registries have been largely closed and are not open for normal business) since the start of the COVID-19 outbreak in Kenya which has made it difficult or impossible for companies to comply with their statutory obligation to file resolutions/documents/agreements both electronically and through a manual process. In respect of business registration services, we understand that online services are still available; however the online services are generally supported by a manual process. In addition, even where documents can be filed electronically, if they are required to be stamped with stamp duty prior to filing, companies are unable to procure stamping of such documents as the Collector of Stamp Duties office is closed and companies are therefore unable to comply with the filing obligations electronically until stamping is completed. The proposed extension of the period (after the GOK End of COVID Gazette Notice is published) from 14 to 21 days is intended to deal with any backlogs arising from COVID-19 and will only apply to documents relating to the period when the COVID-19 pandemic containment measures were in force. The standard period of 14 days will continue to apply thereafter.

outbreak in Kenya (however, to the extent that a company is able to make filings electronically, this should be allowed to continue);

ii) the timelines for lodging various resolutions, registers, documents and agreements which are required to be lodged within 14 days be increased from 14 days of the relevant resolution or agreement being passed to 21 days after the date on which the GoK End of COVID Gazette Notice is published;

iii) the timelines for lodging the various

documents, registers and information (e.g. register of beneficial owners/ the register of members) which are required to be lodged within 14 days be increased from 14 days of the relevant document to 30 days after the date on which the GoK End of COVID Gazette Notice is published and for those which are required to be lodged within 30 days be increased from 30 days of the relevant document to 45 days after the date on which the GoK End of COVID Gazette Notice is published; and

iv) all the penalties and other liabilities for non-compliance are waived for the duration of

S. 27: A company is required to lodge with the Registrar copies of certain prescribed resolutions documents and agreements within 14 days of the resolution or agreement being passed or made.

S. 93(A): The register of beneficial owners is required to be lodged with Registrar within 30 days after completing its preparation.

S. 93(8) and 93(9): The register of members is required to be lodged with the Registrar within 30 days after completing its preparation.

S. 138 and 746: A company is required to


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notify Registrar of changes in directors and directors’ addresses, change of secretary or joint secretary and to file a notice of resignation of auditor within 14 days.

the COVID-19 pandemic until the GOK End of COVID Gazette Notice is published.

S. 398: A copy of a court order under section 396 or 397 is required to be lodged with the Registrar within 14 days.

S. 399 - 465: Various notices are required to be lodged with the Registrar within 14 days.

S. 480: A Notice of Court application or order is required to be lodged with Registrar within 14 days of making an application under S. 479

S. 885: Deadline for registering a charge


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All other provisions of the Companies Act which require lodging or filing of documents with the Registrar within a prescribed period.

c) Companies Act, No. 17 of 2015

S. 61(2): Company may apply to court for order to quash direction under section 60 (which provides that the Registrar may direct a company to change its name within 21 days).

Timelines for quashing of direction under section 60. Rationale for proposed amendment There has been limited/no access to the Courts since the start of the COVID-19 outbreak. The Courts are currently concentrating on matters that are urgent. The extension of the period (after the GOK End of COVID Gazette Notice is published) is intended to deal with any backlogs arising from COVID-19 and will only be applicable to the period when the COVID-19 pandemic containment measures were in force. The standard period of 21 days will continue to apply thereafter.

We recommend that: i) the time period in respect of the application

to quash a direction be suspended for the duration of the COVID-19 pandemic in Kenya; and

ii) the timelines for effecting such appeal be increased from 21 days from the date the person is notified of the decision of the Registrar to 30 days after the date on which the GoK End of COVID Gazette Notice is published.

d) Companies Act, No. 17 of 2015.

S. 683 and S. 692 (1): A company is required to lodge financial statements with the Registrar of Companies within 9 months (for a private company) and 6 months (for a public company) after the end

Timelines for filing financial statements and the consequential penalties for non-compliance. Rationale for proposed amendment There has been restricted access to registries (or the registries have been largely closed and are not open for normal business) since the start of the COVID-19 outbreak in Kenya which has made it difficult or impossible for companies to comply with their

We recommend that: i) the requirement to file hard copies of the

financial statements and other documents should be suspended for the duration of COVID-19 until the GOK End of COVID Gazette Notice is published. During this period, companies should be allowed to file electronic copies the requirement to be suspended until such a time as Companies are able to hold an AGM; and


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of the company's relevant accounting reference period. Section 987 also provides that the foreign company shall lodge at least once every year (and at intervals of not more than fifteen months), a copy of its financial statement made up to the end of its last financial year.

statutory obligation to file the Financial Statements and Reports through a manual process. Furthermore, due to the containment measures directed by the Government, many companies are not able to convene their Annual General Meetings at which the financial statements can be tabled.

all the penalties and other liabilities for non-compliance are waived for the duration of the COVID-19 pandemic until the GOK End of COVID Gazette Notice is published.

e) Companies Act, No. 17 of 2015

S. 902, 1010, 1011 & 1012: Provisions as to service of documents.

Service of documents does not include service via an electronic address. Rationale for proposed amendment Delivery of information request by hand to an address may not be practical during the COVID-19 pandemic and in light of the restriction in movement of persons. The proposed amendment is intended to allow requests for information and delivery of information to be done via electronic means.

We recommend that the method of request for information and delivery of information be amended to include service of the request and delivery of the documents by electronic means through an email sent to the email address provided, provided that for an e-mail to have been deemed to have been served or delivered, a delivery receipt must have been received by the recipient in respect of the e-mail address notified or an acknowledgement of the email by the recipient sent to the sender.

f) Companies Act, No. 17 of 2015

S. 1014: Right to require company to provide hard copy version of company document or information

Requirement for production of hard copy versions of company documents and/or information. Rationale for proposed amendment

We recommend that: i) the requirement to produce hard copy

versions of company documents and/or


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Production of hard copy versions of documents may not be practical in light of the COVID-19 pandemic and the restriction in movement of persons. However, electronic copies of documents can continue to be provided through electronic means during the COVID-19 pandemic period.

information be suspended for the duration of the COVID-19 pandemic in Kenya; and

ii) the timelines for complying with a request for hard copy information be increased to within 30 days after the date on which the GoK End of COVID Gazette Notice is published.

g) Companies Act No. 15 General Regulations

Regulation 65 (2) The company shall send a document or information in hard copy form within 21 days after being requested to do so by a member or debenture holder.

Timelines and the consequential penalties for non-compliance. Rationale for proposed amendment Many companies have restricted access (or have been closed and are not open for normal business) since the start of the COVID-10 outbreak in Kenya which has made it difficult or impossible for companies to comply with their statutory obligation to submit documents in hardcopy to a member or a debenture holder. However, electronic copies of documents can continue to be provided through electronic means during the COVID-19 pandemic period.

We recommend that: i) the requirement to send hard copy

documents or information requested by a member or debenture holder be increased from 21 days of the date of the request to 21 days after the date on which the GoK End of COVID Gazette Notice is published; and

ii) all the penalties and other liabilities for non-compliance are waived for the duration of the COVID-19 pandemic until the GOK End of COVID Gazette Notice is published.


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h) Companies Act, No. 17 of 2015.

Sections 983 – 989): Regulation of registered foreign companies carrying on business in Kenya. A company is required to ensure that its registered office is kept open on each business day from at least 10 a.m. to 12 noon and from at least 2 p.m. to 4 p.m. Local representative to be present at all times when the office is open

Requirement to keep registered office open Rationale for proposed amendments Due to the containment measured directed by the Government during the COVID-19 period, and the fact that most companies have introduced remote working systems, it may be difficult for companies to comply with the requirement to keep registered offices open.

We recommend that: i) the requirement to keep the registered office

open be suspended for the duration of COVID-19 until the GOK End of COVID Gazette Notice is published; and

ii) all the penalties and other liabilities for non-

compliance are waived for the duration of the COVID-19 pandemic until the GOK End of COVID Gazette Notice is published.

i) Companies Act, No. 17 of 2015.

Section 986 (1) provides that a registered foreign company shall, within 1 month after a change occurs in its particulars lodge a return notifying the Registrar of the changes.

Requirement to lodge returns with Registrar Rationale for proposed amendments There has been restricted access to registries (or the registries have been largely closed and are not open for normal business) since the start of the COVID-19 outbreak in Kenya which has made it difficult or impossible for companies to comply with their statutory obligation to file returns with the Registrar. The notification filings for foreign Companies are still done manually and not electronically and it is

We recommend that: i) the requirement to file the returns be

suspended for the duration of the COVID-19 pandemic in Kenya (however, to the extent that the BRS system is activated for foreign companies and a company is able to make filings electronically, this should be allowed to continue); and

ii) the timelines for lodging the returns be increased from 1 month of the relevant change occurring to 45 days after the date


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therefore not possible for foreign companies to meet the requirement to file. The extension of the period (after the GOK End of COVID Gazette Notice is published) is intended to deal with any backlogs arising from COVID-19 and will only be applicable to the period when the COVID-19 pandemic containment measures were in force. The standard period of 30 days will continue to apply thereafter.

on which the GoK End of COVID Gazette Notice is published.


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3.2 CAPITAL MARKETS/LISTED COMPANIES

3.2.1 Companies Act, No. 17 of 2015 (provisions relating to listed companies)



a) Companies Act, No. 17 of 2015

S. 116: a shareholder of a listed company may nominate a person to enjoy information rights which includes the right to demand for copies of documents and information in hard copy form from the listed company.

Requirement for provision of hard copy documents. Rationale for proposed amendment It will difficult for listed companies to comply with the requirement to provide hard copies of documents/information to its shareholders because of the movement restrictions which have been imposed by the government and the reduction in the numbers of staff in offices because of remote working initiatives. Additionally, it may also not be safe for listed companies to send hard copies of any documents to its shareholders since these may aid in the spread of COVID-19 if they are not properly handled. The proposal to do away with provision of hard copies of documents or information and instead provide the documents/information in electronic form will make it easier for companies to be compliant with shareholder information rights while at the same time reducing the risk of spreading COVID-19 from distribution of hard copies of documents.

We recommend that: i) the requirement to provide

documents/information in hard copy be suspended up to the date the GoK End of COVID Gazette Notice is published and replaced with a requirement to provide the documents/information in electronic form; and


b) Companies Act, No. 17 of 2015

S. 255: a resolution of the members or of a class of members of a public company may be passed only at a meeting of the

Resolutions of Public Companies can only be passed at meetings. Rationale for proposed amendment

We recommend that: i) the mandatory requirement that public

companies may only pass resolutions at a meeting of the members be suspended up to


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members. Private companies on the other hand do not have a similar constraint since a resolution of the members can be passed either as a written resolution or at a meeting of the members.

The Government has issued a ban against holding of public gathering to reduce the spread of COVID-19. The Capital Markets Authority (CMA) also issued a directive requiring public firms to defer any annual general meetings (AGMs) scheduled before May 2020 to a later date. These two directives impact the ability of public companies to hold general meetings and to pass resolutions required to be passed in such meetings. This may significantly impair listed companies’ ability to raise finances during this difficult period. The proposal to allow public companies to pass written resolutions and/or to hold meetings virtually will facilitate decision-making by shareholders which is otherwise constrained by the inability to hold meetings during the COVID-19 pandemic.

the date the GoK End of COVID Gazette Notice is published;

ii) in its stead, public companies be allowed to pass resolutions by way of written resolutions signed by members holding at least 50% of the issued shares of the companies up to the date the GoK End of COVID Gazette Notice is published. Such resolutions may be passed by allowing shareholders to vote on the resolution by SMS or through an online portal;

iii) during the period of subsistence of COVID-19 up to the date the GoK End of COVID Gazette Notice is published, the provisions of section 262 on passing of written resolutions by private companies should be applied to public companies; and

iv) a provision be introduced in the Companies Act to allow public companies to hold meetings virtually by way of video, telephone or other technologies up to the date the GoK End of COVID Gazette Notice is published.

c) Companies Act, No. 17 of 2015

S. 310: every public company is required to hold a general meeting as its AGM within 6 months

Time period for holding AGMs. Rationale for proposed amendment

We recommend that: i) the requirement to hold AGMs be

suspended for the duration of COVID-19 and the timeline for holding an AGM be


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from and including the day following its accounting reference date in each year. Failure to comply is an offence punishable with a fine not exceeding KES. 1 million.

The financial year of a number of public companies comes to an end on 31 December each year which means that they would need to hold their general meetings by 30 June 2020 for them to be compliant with the provisions of the Companies Act. Given that it is unclear whether the COVID-19 outbreak in Kenya will have been contained by then to allow holding of general meetings, it may be impossible for some public companies to comply with this requirement.

extended to 2 months from the date the GOK End of COVID Gazette Notice is published;

ii) section 255 of the Companies Act be amended to allow holding of virtual meetings (as described above); and

iii) all the penalties and other liabilities for non-compliance are waived for the duration of the COVID-19 pandemic until the GOK End of COVID Gazette Notice is published.

d) Companies Act, No. 17 of 2015

S. 684, 685 and 688: every public company is required to lodge a copy of the following documents with the Registrar of Companies within 6 months of its accounting reference date: a) the company's annual

financial statement; b) the directors'

remuneration report; c) the directors' report;

and d) a copy of the auditor's

report on that

Timelines and consequential penalties. Rationale for proposed amendment Owing to the general difficulties in doing business and co-ordinating business functions brought about by the COVID-19 outbreak in Kenya, public companies whose annual financial statements are due or will be due during this period may find it difficult to prepare the reports on time. An extension of the timeline for lodging of the financial statements and accompanying documents with the Registrar of Companies will ease the burden of compliance on public companies. In addition, companies should be allowed to file the documents through electronic means and the

We recommend that: i) the requirement to file hard copies of the

documents should be suspended for the duration of COVID-19 until the until the GOK End of COVID Gazette Notice is published. During this period, companies should be allowed to file electronic copies;

ii) the timeline for lodging the documents be

extended by two months (in line with the proposal to extend the time for publication of audited financial statements as required by Regulation B.20 of the Capital Markets (Securities) (Public Offers, Listing and Disclosures) Regulations, 2002 highlighted under section 2.3 below); and


34



statement and those reports.

It is an offence to fail to file these documents with the Registrar of Companies within the required period.

requirement to file hard copies should be suspended for the duration of COVID-19 until the until the GOK End of COVID Gazette Notice is published.

iv) all the penalties and other liabilities for non-compliance are waived for the duration of the COVID-19 pandemic until the GOK End of COVID Gazette Notice is published.

e) Companies Act, No. 17 of 2015

S. 721 (2) and 721 (4): a public company is required to appoint its auditor by ordinary resolution in a general meeting at which the company's annual financial statement for the previous financial year is presented.

Requirement for appointment of auditors by members and not directors. Rationale for proposed amendment Given the uncertainties surrounding holding of AGMs during the COVID-19 outbreak in Kenya, it would be difficult for public companies which have not already held their AGMs to appoint auditors as within the required timeline. The proposal to empower directors to appoint auditors without seeking approval of the shareholders will ensure that the office of the auditor does not fall vacant when the term of the auditor expires.

We recommend that directors of a public company be granted the powers to appoint the company’s auditors without seeking approval of the shareholders of the company until the GOK End of COVID Gazette Notice is published.

f) The Companies (General) Regulations, 2015

Regulation 64: provides for the right of a shareholder or debenture-holder of a company who receives a document or information

Requirement for provision of hard copy documents. Rationale for proposed amendment It may be difficult for listed companies to comply with the requirement to provide hard copies of documents/information to its shareholders because

We recommend that: i) the requirement to provide

documents/information in hard copy should be suspended up to the date the GoK End of COVID Gazette Notice is published and replaced with a


35



from the company otherwise than in hard copy to require the company to send the member a hard copy version of the document or information within 21 days of being requested to do so by the shareholder or debenture-holder. Failure to comply amounts to an offence punishable by a fine not exceeding KES. 50,000.

of the movement restrictions which have been imposed by the government and the reduction in the numbers of staff in offices because of remote working initiatives. Additionally, it may also not be safe for listed companies to send hard copies of any documents to its shareholders since these may aid in the spread of the virus if they are not handled with care from the point of dispatch by the listed company to the time of receipt by the shareholder’s nominee. The proposal to do away with provision of hard copies of documents or information and instead provide the documents/information in electronic form will make it easier for companies to be compliant with shareholder information rights while at the same time reducing the risk of spreading COVID-19 from distribution of hard copies of documents.

requirements to provide the documents/information in electronic form; and


3.3 Capital Markets Act No. 17 of 1989



a) Capital Markets Act No. 17 of 1989

S. 30F: issuers of securities are required to keep the CMA, the NSE and the general public informed as soon as practicable, but in any event not later than the end of the next

Timelines and consequential penalties. Rationale for proposed amendment The COVID-19 outbreak in Kenya has forced most companies to ask their staff to work from home and has forced most people to limit their travel to their workplaces. These new circumstances make prompt

We recommend that: i) the requirement to disclose material

information be extended to 2 working days from the occurrence of the triggering event up to the date the GoK End of COVID Gazette Notice is published; and


36



working day, of any information relating to the issuer and its subsidiaries which: a) is necessary to enable

them appraise the financial position and the state of corporate governance of the issuer;

b) is necessary to avoid the establishment of a false market in its securities; or

c) might reasonably be expected to materially affect market activity in the price of its securities.

It is a criminal offence to fail to disclose the required information on time.

decision-making more difficult as it is hard to co-ordinate different company functions remotely. Therefore, it may be more difficult for public companies to assess information and changing circumstances as quickly as they would within ordinary circumstances and to prepare the relevant public announcement relating to the information or circumstances. Extending the timeline for notification to the public will make it easier for companies to be compliant with this requirement. It is also more likely that public companies will issue accurate public announcements if they have more time to review and consider the same before publication. The standard period of 24 hours will continue to apply once the GoK End of COVID Gazette Notice is published.

ii) all the penalties and other liabilities for

non-compliance are waived for the duration of the COVID-19 pandemic until the GOK End of COVID Gazette Notice is published.


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3.4 The Capital Markets (Securities) (Public Offers, Listing and Disclosures) Regulations, 2002 and Circular No. 1 of 2017 Issued by the Capital Markets

Authority



a) The Capital Markets (Securities) (Public Offers, Listing and Disclosures) Regulations, 2002

Regulation 6 and 6A: an issuer intending to offer securities to the public or a section of the public in Kenya is required to publish an information memorandum (or a listing statement) by making it available to the public free of charge at an address in Kenya.

Requirement for publication of hard copy information memorandum at an address in Kenya. Rationale for proposed amendment The movement restrictions introduced by the government and the general caution being exercised by the public in form of social distancing may make it difficult for interested persons to visit a physical office for purposes of reviewing an information memorandum or listing statement. The requirement to publish the relevant documents on the relevant company’s website and social media platforms will enable interested parties to inspect the documents remotely without having to travel to the company’s physical office.

We recommend that the requirements to avail hard copies be waived during the COVID-19 period and instead issuers be permitted to publish copies of the information memorandum or listing statement on their websites and their social media platforms. A short form version of the information memorandum may also be published in two daily newspapers of nationwide circulation.

b) The Capital Markets (Securities) (Public Offers, Listing and Disclosures) Regulations, 2002

Regulation 11: a listed company issuing additional shares on the Nairobi Securities Exchange is required to meet the disclosure requirements for additional listing prescribed in the Fourth Schedule.

Disclosure requirements for additional listing. Rationale for proposed amendment The COVID-19 outbreak in Kenya has and is likely to cause a significant financial strain on companies listed on the Nairobi Securities Exchange giving rise to the need to seek further funding from the market for example, through issuance of additional shares in the market (rights issue) to enable them keep afloat.

We recommend that the regulation be amended to empower the CMA to approve an application for a rights issue notwithstanding certain requirements in the Fourth Schedule not being met.


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A listed company seeking to carry out a rights issue would need to meet all disclosure requirements in the Fourth Schedule some of which may not be feasible due to the COVID-19 outbreak in Kenya. In such circumstances and for the benefit of the listed companies and their stakeholders, it would be prudent to make this requirement more flexible due to the current circumstances by empowering the CMA to approve such a rights issue notwithstanding certain disclosure requirement not being fully met by the listed companies seeking to carry out a rights issue where a legitimate reason can be shown. This will facilitate and stimulate investment on the Nairobi Securities Exchange while ensuring business continuity of listed companies and safeguarding interests of stakeholders.

c) The Capital Markets (Securities) (Public Offers, Listing and Disclosures) Regulations, 2002

Regulation 19 (2) and 19 (3): information which is expected to be disclosed as part of a listed company’s continuing obligations is required to be disclosed within 24 hours of occurring of the relevant event to the CMA, the NSE and to the public.

Timelines for disclosure. Rationale for proposed amendment The COVID-19 outbreak in Kenya has forced most companies to ask their staff to work from home and has also forced most people to limit their travel to their workplaces. These new circumstances make prompt decision-making more difficult as it is hard to co-ordinate different company functions remotely. Therefore, it may be more difficult for public companies to assess information and changing circumstances as quickly as they would within


information be extended to 48 hours upon occurrence of the triggering event up to the date the GoK End of COVID Gazette Notice is published. Furthermore, companies should be permitted to make the disclosures through electronic means without the need for hard copies; and


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ordinary circumstances and to prepare the relevant public announcements relating to the information or circumstances. Extending the timeline for notification to the public and the regulators will make it easier for companies to be compliant with this requirement. It is also more likely that public companies will issue more accurate public announcements if they have more time to review and consider the same before publication. The standard period of 24 hours will continue to apply once the GoK End of COVID Gazette Notice is published.


d) The Capital Markets (Securities) (Public Offers, Listing and Disclosures) Regulations, 2002

Fifth Schedule Regulation B.02: where a listed company has declared a dividend, such dividends is required to be paid out within 90 days of the date of the books closure (in case of interim dividends), and 90 days of approval of the shareholders (in the case of a final dividend).

Payment of dividends. Rationale for proposed amendment Public companies may find it difficult, from a liquidity perspective, to pay out dividends given the volatility and uncertainty of the stock market, reduced business, default by debtors and increased cost of doing business experienced by most listed companies. Listed companies should be given leeway to stagger payment of dividends or to defer the payment dates to give them some time to manage their cash flows.

We recommend that listed companies be allowed to defer dividend payments if the board considers that it would be appropriate or prudent to cancel or defer any such dividend for any reason connected to the coronavirus subject to announcement of the decision to defer the dividend payment within 48 hours.

e) The Capital Markets

Fifth Schedule Regulation B. 19: a listed company is

Timelines.

We recommend that the timeline for preparing interim reports be extended from 2 months to 4


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(Securities) (Public Offers, Listing and Disclosures) Regulations, 2002

required to publish an interim report (half-year report) within 2 months of the end of the interim period in its financial year and to send copies to the Nairobi Securities Exchange and the CMA.

Rationale for proposed amendment Owing to the general difficulties in doing business and co-ordinating business functions brought about by the COVID-19 outbreak in Kenya, public companies whose interim reports are due or will be due during this period may find it difficult to prepare the reports on time. An extension of the timeline for publication of the interim reports will ease the burden of compliance on public companies. The standard period will continue to apply once the GoK End of COVID Gazette Notice is published.

months until the GoK End of COVID Gazette Notice is published.

f) The Capital Markets (Securities) (Public Offers, Listing and Disclosures) Regulations, 2002

Fifth Schedule Regulation B. 20: every issuer of securities to the public whether listed or not shall prepare an annual report containing audited annual financial statements within 4 months of the close of its financial year.

Timelines. Rationale for proposed amendment Owing to the general difficulties in doing business and co-ordinating business functions brought about by the COVID-19 outbreak in Kenya, public companies whose annual financial statements are due or will be due during this period may find it difficult to prepare the reports on time. An extension of the timeline for publication of the financial statements will ease the burden of compliance on public companies. The standard period will continue to apply once the GoK End of COVID Gazette Notice is published.

We recommend that the timeline for preparing annual reports be extended from 4 months to 6 months until the GoK End of COVID Gazette Notice is published.


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g) The Capital Markets (Securities) (Public Offers, Listing and Disclosures) Regulations, 2002

Fifth Schedule Regulation G. 05: a listed company is required to disclose all material information and make a public announcement in relation to the material information within 24 hours of occurring of the relevant event. A listed company is also required to issue a profit warning statement where there is a material discrepancy between the projected earnings for the current financial year and the level of earnings in the previous financial year.

Timelines and consequences for non-compliance. Rationale for proposed amendment The COVID-19 outbreak in Kenya has forced most companies to ask their staff to work from home and has also forced most people to limit their travel to their workplaces. These new circumstances make prompt decision-making more difficult as it is hard to co-ordinate different company functions remotely. Therefore, it may be more difficult for public companies to assess information and changing circumstances as quickly as they would within ordinary circumstances and to prepare the relevant public announcements relating to the information or circumstances. Extending the timeline for notification to the public and the regulators will make it easier for companies to be compliant with this requirement. It is also more likely that public companies will issue more accurate public announcements if they have more time to review and consider the same before publication. The standard period of 48 hours will continue to apply once the GoK End of COVID Gazette Notice is published.


information or to issue a profit warning be extended from 24 hours to 48 hours from the occurrence of the triggering event up to the date the GoK End of COVID Gazette Notice is; and


h) The Capital Markets (Securities) (Public

Fifth Schedule Regulation G.07: where any agreement has been entered into in

Agreement to be made available for inspection at the issuer’s registered office. Rationale for proposed amendment

We recommend that the requirement to avail hard copies of the agreements be suspended during the COVID-19 period and instead listed companies be allowed to publish copies of the


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Offers, Listing and Disclosures) Regulations, 2002

connection with any acquisition or realisation of assets or any transaction outside the ordinary course of business of a listed company and/or its subsidiaries, the company is required to lodge a copy of the relevant agreement with the CMA and the NSE and to make the agreement available for inspection at the issuer's registered office.

The movement restrictions introduced by the government and the general caution being exercised by the public in form of social distancing may make it difficult for interested persons to visit the registered office of a listed company to inspect any documents. The requirement to publish the relevant agreement on the listed company’s website and social media platforms will enable interested parties to inspect the agreement remotely without having to travel to the company’s registered office.

agreements entered into outside the ordinary course of business on their website and their social media platforms.

i) Circular No. 1 of 2017 Issued by the Capital Markets Authority

Various timelines stipulated in the circular

Timelines and consequences for non-compliance. Rationale for proposed amendment There are obligations set out in this circular that govern the manner and timelines within which Listed entities are required to make various disclosures. Due to COVID-19, it may be difficult or impracticable for companies to comply with some of the timelines.

We recommend that the various timelines in the Circular be amended as appropriate for the duration of COVID-19 up to the date the GoK End of COVID Gazette Notice is published.


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3.5 The Capital Markets (Foreign Investors) Regulations, 2002



g) 1. The Capital Markets Act (Cap 485A) The Capital Markets (Foreign Investors) Regulations, 2002

S. 4 of the Regulations requires that within 10 days following the end of each month, a listed Company shall furnish to the Authority and to the securities exchange, a report showing details of the holding of its ordinary shares according to specified categories.

Timelines and consequences for non-compliance. Rationale for proposed amendment Due to COVID-19, it may be difficult or impracticable for companies to comply with some of the timelines.

We recommend that: i) the requirement to file the information with

the CMA be extended from 10 days to 30 days from the end of each month up to the date the GoK End of COVID Gazette Notice is published. Furthermore, companies should be permitted to make the filings through electronic means without the need for hard copies; and



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4 COMMERCIAL AND OTHER BUSINESS LAWS

4.1 Data Protection Act, 2019



a) Data Protection Act, 2019

S 18: No person shall act as a data controller or data processor unless registered with the Data Commissioner

Timelines for the registration of data controllers and data processors. Rational for the proposed amendment Many businesses/organisations are data controllers/processors given that they control and process large volumes of data such as employee data. Due to the COVID-19 outbreak in Kenya, many organisations may not be able to lodge their application forms for registration with the Data Commissioner during the COVID-19 pandemic in the event the Data Commissioner is appointed before the end of the pandemic.

We recommend that: i) if the Data Commissioner is appointed

during the pandemic, the requirement to register with the Data Commissioner be suspended for the duration of the COVID-19 pandemic in Kenya; and

ii) persons should be allowed at least 21 days after the date on which the GoK End of COVID Gazette Notice is published to register, in the event that the Data Commissioner is appointed during or immediately after the COVID-19 pandemic.

i) Data Protection Act, 2019

S 30(1)(b) (iv): Ground for lawful processing of data for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller.

Inclusion of public health interest as a ground for lawful processing of personal data. Rationale for the proposed amendment We recommend that section 30 (b) (iv) be amended to specifically include public health interest in light of the COVID-19 pandemic, subject to safeguard rules being complied with.

We recommend that section 30(1)(b)(iv) be amended to include the processing of personal data as part of the performance of a task carried out in the public interest or in the area of public health or in the exercise of official authority vested in the controller.

j) Data Protection Act, 2019

S 38 (6): A data controller or data processor shall comply with data portability requests, at reasonable cost and

Timelines and extension of period to comply with data portability request. Rationale for proposed amendment

We recommend that the requirement to comply with data portability requests be suspended for the duration of the COVID-19 pandemic in Kenya and the timelines be increased from 30 days from the date of the


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within a period of 30 days.

Many businesses and organisations who are data controllers or processors have been affected by the COVID-19 outbreak in Kenya and their normal operations have been interrupted affecting the ability of data processors and controllers to adhere to the 30 day timeline.

portability request to 30 days after the date on which the GoK End of COVID Gazette Notice is published.

k) Data Protection Act, 2019

S 45 & 46: Permitted grounds for processing sensitive personal data and personal data relating to health

Rights for processing of personal data relating to health is extremely limited. Rationale for the proposed amendment In light of the COVID-19 mitigation initiatives, the national security authorities and other medical personnel including employers have been requesting for and processing personal information relating to individuals affected by COVID-19. Section 45 and 46 need to take into account that processing is necessary for reasons of public interest in the area of public health, such as protecting against serious cross-border threats to health or ensuring high standards of quality and safety of health care and of medicinal products or medical devices, provided that there are suitable and specific measures to safeguard the rights and freedoms of the data subject, in particular professional secrecy. An organisation may process health data:

We recommend that the following grounds for processing sensitive personal data and personal data relating to health be included: i) that processing is necessary for reasons of

public interest in the area of public health, such as protecting against serious cross-border threats to health or ensuring high standards of quality and safety of health care and of medicinal products or medical devices, provided that there are suitable and specific measures to safeguard the rights and freedoms of the data subject, in particular professional secrecy; and

ii) where the data subject has given explicit consent to the processing of those personal data for one or more specified purposes.


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i) for reasons of public interest in the area of public health,

ii) in implementation of explicit guidelines imposed by the competent authority, and

iii) if all other data protection principles are respected.

In addition, there is no ground for processing sensitive personal data where the data subject consents. Section 45 and 46 also needs to include a ground for processing sensitive personal data where the data subject has given explicit consent to the processing of their sensitive personal data for one or more specified purposes.

i) Data Protection Act, 2019

S 49 (1): The processing of sensitive personal data out of Kenya shall only be effected upon obtaining consent of a data subject and on obtaining confirmation of appropriate safeguards.

Exemption to obtaining consent of the data subject when transferring personal data relating is in the interest of public health. Rationale for the proposed amendment There may be instances where the consent of a data subject cannot be obtained and the information relates to COVID-19 and is required to be transferred outside of Kenya for further analysis. In such circumstances, the data should be transferred with notification to the data subject of where it has been transferred to and to whom and for what purpose it will be used.

We recommend that section 49(1) be amended to provide for an exemption to obtaining the consent of the data subject when transferring personal data in the public interest in the area of public health.


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4.2 Partnership Act No. 16 of 2012



a) Partnership Act No. 16 of 2012

S. 20: Document is validly executed as a deed if its executed by at least 2 partners or by 1 partner in the case of a limited partnership

Execution by 2 partners on behalf of the partnership as a deed and execution by 1 partner in the case of a limited partnership. Rationale for proposed amendment Both partners may not be available to sign the same signature block for purpose of executing a document as a deed due to the restriction in movement as result of the COVID-19 pandemic. The proposal to permit electronic signature for execution of deeds by partners is intended to deal with the inability of partners to execute a document in original format as a deed on the same signature block.

We recommend that for purposes of executing a deed, reference is made to affixing a signature or being signed or bear the signature of the partner (either executed in person or by means of an electronic signature) in order for the document to be executed using electronic signatures pursuant to the Kenya Information and Communications Act, Chapter 411A.

4.3 Limited Liability Partnership Act No. 42 of 2011



a) Limited Liability Partnership Act No. 42 of 2011

S. 23: Right to appeal against refusal of registration within 30 days after being notified

Timelines for appeal. Rationale for proposed amendment There has been limited/no access to the Courts since the start of the COVID-19 outbreak in Kenya. The Courts are currently concentrating on matters that are urgent.

We recommend that: i) the time period in respect of the notification

of appeal be suspended for the duration of the COVID-19 pandemic in Kenya; and

ii) the timelines for effecting such appeal be increased from 30 days from the date the person is notified of the decision of the Registrar to 30 days after the date on which


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The proposed extension of the period (after the GOK End of COVID Gazette Notice is published) is intended to deal with any backlogs arising from COVID-19 and will only be applicable to the period when the COVID-19 pandemic containment measures were in force. The standard period of 30 days will continue to apply thereafter.

the GoK End of COVID Gazette Notice is published.

b) Limited Liability Partnership Act, No. 42 of 2011

S. 29 (2): The declaration (annual declaration of solvency or insolvency) shall be lodged not later than 15 months after the registration of the limited liability partnership and subsequently once in every calendar year at intervals of not more than 15 months.

Timelines and the consequential penalties for non-compliance. Rationale for proposed amendment There has been restricted access to registries (or the registries have been largely closed and are not open for normal business) since the start of the COVID-19 outbreak in Kenya which has made it difficult or impossible for limited liability partnerships to comply with their statutory obligation to file their annual solvency/insolvency declarations both electronically and through a manual process. The extension of timelines will only apply to documents relating to the period when the COVID-19 pandemic containment measures were in force. The standard period of intervals of not more than fifteen months will continue to apply thereafter.

We recommend that: i) the requirement to make filings be

suspended for the duration of the COVID-19 pandemic in Kenya;

ii) the timelines for lodging the annual declarations be extended increased from intervals of not more than 15 months to one month after the date on which the GoK End of COVID Gazette Notice is published; and

iii) all the penalties and other liabilities for non-


c) Limited Liability Partnership Act No. 42 of 2011

S. 33: Changes to registered details of limited liability partnership to be lodged with Registrar within 14 days after the change

Timelines. Rationale for proposed amendment There has been restricted access to registries (or the registries have been largely closed and are not open for normal business) since the start of the COVID-19

We recommend that: i) the requirement to lodge details of changes

with the Registrar be suspended for the duration of the COVID-19 pandemic; and


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outbreak in Kenya which has made it difficult or impossible for entities to comply with their statutory obligation to file resolutions/documents/agreements or make any changes both electronically and through a manual process. The extension of the period (after the GOK End of COVID Gazette Notice is published) is intended to deal with any backlogs arising from COVID-19 and will only be applicable to the period when the COVID-19 pandemic containment measures were in force. The standard period of 14 days will continue to apply thereafter.

ii) the timelines for lodging the registration of certain changes be increased from 14 days of the resolution or agreement being passed to 21 days after the date on which the GoK End of COVID Gazette Notice is published.

4.4 Competition Act, 2010 (the Competition Act) and the Competition Tribunal Rules, 20171



a) Competition Act

Restrictive trade practices S.21: a blanket prohibition against entities from engaging in restrictive trade practices (RTPs) (examples include: price fixing, division of markets, collusive tendering and tying and bundling) without obtaining an

RTPs undertaken to control the spread of COVID-19, provide essential products or address other emergency needs during pandemics. Rationale for proposed amendment Provisions on the prevention of RTPs in the Competition Act should be amended to have a block exemption excluding the prohibitions against entities engaging in RTPs to the extent that these are necessary for the provision of services and products

We recommend that the Competition Act be amended to exclude the prohibition of RTPs if such RTPs would be deemed necessary by the GOK or the Authority to control a pandemic or manage a national disaster e.g. sharing of information between competitors if it is necessary to ensure proper supply of essential products. Details of how this is to be interpreted can be set out in the amendment law.

1 Please note that for purposes of this memorandum, we have not considered the provisions of the East African Competition Act, 2006.


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exemption from the Competition Authority of Kenya (the Competition Authority). RTPs include vertical restraints and horizontal restraints (cartels).

during the COVID-19 period or other pandemics e.g. essential products such as foodstuffs, masks, pharmaceutical products or products and services necessary to control the spread of COVID-19 and any future pandemics or national disasters. Certain provisions of the Competition Act prohibit the following conduct (which is classified as RTPs) which if allowed in limited circumstances would go a long way in controlling the spread of COVID-19 or managing its effects on consumers and the public: a) setting prices of personal protective equipment,

personal hygiene products and medical equipment to ensure that consumers can afford the products;

b) allocation of geographic regions among manufacturers and/or distributors to ensure that volumes of personal protective equipment, personal hygiene products and medical equipment are sufficiently availed in all affected geographic regions in the country. This may be useful where there are restriction on movement of people and/or cargo;

c) bundling of certain products (face masks and hand sanitizers) to ensure consumers have the necessary tools to control COVID-19; and

d) having medical facilities to deal with only COVID-19 cases and no other cases and vice versa to control the spread of COVID-19.

Alternatively, the relevant Cabinet Secretary can be given powers to exempt such conduct that would otherwise amount to prohibited RTPs from the exemption and approval requirements under the Competition Act by publishing a Gazette Notice.


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Under the current provisions of the Competition Act, engaging in any of the RTPs above without the specific approval of the Competition Authority is prohibited and such conduct attract strict penalties and sanctions. The process of obtaining exemption from the Competition Authority prior to engaging in such conduct is lengthy and costly and it is likely to be impracticable for parties to seek such exemptions in a timely and cost-efficient fashion during a pandemic such as COVID-19. Private entities may be reluctant from contributing to the control of COVID-19 and other pandemics that may arise in future due to the high risks that they could be found to be in breach of the competition laws.

b) Competition Act

Joint Ventures S.42: requires that an approval should be obtained from the Competition Authority before implementation of a merger in Kenya. The term ‘merger’ is broadly defined in the Competition Act to transfer of assets leading to a change of control of a business for instance, the contribution of assets such as equipment to a

Certain joint ventures undertaken to control the spread of COVID-19 or other pandemics, provide essential products or address other emergency needs during pandemics. Rationale for proposed amendment Provisions on the control of mergers in the Competition Act should be amended to have a block exemption excluding the prohibitions against entities entering into joint ventures to the extent that these are necessary for the provision of services and products during the COVID-19 period or other pandemics e.g. essential products such as foodstuffs, masks, pharmaceutical products or products and services necessary to control the spread of COVID-19 and any future pandemics or national disasters.

We recommend that the Competition Act be amended to exclude the prohibition of implementation of certain joint ventures if such transaction would be deemed necessary by the GOK or the Authority to control a pandemic or manage a national disaster or provide essential products or otherwise address other emergency needs during pandemics. Details of how this is to be interpreted can be set out in the amendment law.


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joint venture to enable manufacturing of personal protective equipment may be considered as a merger requiring the prior approval of the Competition Authority.

Certain transactions which may be useful in the control of COVID-19 or other pandemics would require the approval of the Competition Authority before implementation failure to which this would constitute a breach of the Competition Act. These transactions may include contribution of assets (for example, manufacturing equipment or cash) by private entities into a joint venture to enable production of personal protective equipment, personal hygiene products and medical equipment or other public benefit. Under the current provisions of the Competition Act, engaging in joint ventures without the specific approval of the Competition Authority is prohibited and such conduct attracts strict penalties and sanctions. The process of obtaining approval from the Competition Authority is lengthy and costly and it is likely to be impracticable for parties to seek such approvals in a timely and cost-efficient fashion during a pandemic such as COVID-19. Private entities may be reluctant from contributing to the control of COVID-19 and other pandemics that may arise in future due to the high risks that they could be found to be in breach of the competition laws.

c) Competition Act

S. 44: provides that the period for granting approvals or making determinations in relation to proposed mergers

Expedited approvals for mergers with a public interest element to address COVID-19 or other pandemics or their effects. Rationale for proposed amendment

We recommend that the Competition Act be amended to provide for a fast-track process with shorter timelines of 7 to 14 days (maximum) and that the Competition Authority introduces a fast tracking system to deal with merger


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within certain timelines, which cumulatively amount to 60-120 days (or more).

The Competition Act should be amended to provide for a fast-track process with shorter timelines of 7 to 14 days (maximum) if the merger or other transaction has a public interest element or is necessary in order to respond to an emergency situation for example – where the merger is required in response to a public health emergency such as investments into the health or pharmaceutical sector. This would enable these industries receive the investments faster and therefore provide them with the necessary resources to enable them to make contributions to help deal with COVID-19 or similar pandemics or national emergencies.

notifications that have a public interest element for example, where an investment is being made into a company in the heath or pharmaceutical sector. Alternatively, the relevant Cabinet Secretary can be given powers to exempt such transactions from the notification and approval requirements under the Competition Act by publishing a Gazette Notice.

d) Competition Act

S. 47: provides that the Competition Authority may revoke a merger approval and impose financial penalties on undertakings for non-compliance with conditions imposed by the Competition Authority when approving a merger.

Failure to comply with conditions of a merger approval due to COVID-19 or other pandemics. Rationale for proposed amendment The Competition Authority has in the past approved mergers with conditions which include: a) retention of employees; b) continuing certain business lines or not

terminating or amending certain supply or distribution contracts;

c) disposal of certain businesses or assets; and/or d) periodic reporting to the Competition Authority. If a party fails to comply with any of the conditions imposed, the Competition Authority may revoke the merger approval and also impose financial penalties. This provision does not contemplate a scenario where

We recommend that i) the Competition Act is amended to cater for

scenarios where non-compliance with merger approval conditions issued before COVID-19 arises from circumstances beyond the control of the parties. In such cases, parties should be exempted from the requirement to comply with the conditions for the duration of COVID-19 pandemic; and



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there are legitimate reasons for non-compliance such as pandemics and/or national disaster and prolonged economic downturns following such events, e.g. where an investor acquiring a restaurant or airline business was required to retain all employees for a period of 3 years from completion but are unable to continue doing so due to a lockdown which prevents them from carrying on business or due to an economic downturn following the pandemic.

e) Competition Act

S.48: provides for the review of the decision of the Competition Authority by the Tribunal. Parties are required to apply for review of a decision of the Authority within 30 days of the publication of the merger determination in the Kenya Gazette.

Review of Competition Authority’s merger determination by the Tribunal. Rationale for proposed amendment Due to the COVID-19 pandemic, it will not be practicable for parties to file an application with the Tribunal for review of the Authority’s merger determination within the prescribed timeline. As such, the undertakings may lose their right due to delays which may be occasioned by the pandemic. Parties should be allowed to apply to the Tribunal for a review outside the 30 day timeline. This also would apply in the case of other pandemics or national disasters.

We recommend that: i) the requirement to file applications for

review of the Authority’s decision to the Tribunal within 30 days be suspended for the duration of the COVID-19 pandemic in Kenya (or other pandemics or national disasters); and

ii) the timelines for lodging the resolutions and agreements be increased to 30 days after the date on which the GoK End of COVID Gazette Notice is published.

f) Competition Act, 2010

S. 72: physical attendance of an appellant or their advocate before the Competition Tribunal.

Physical attendance. Rationale for proposed amendment After the announcement of the first case of COVID-19 in Kenya in government agencies scaled down their

We recommend that: i) the proceedings of the Competition Tribunal

may be conducted via audio/video conference with the relevant parties until such a time when the COVID-19 pandemic is


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operations and encouraged employees to work from home.

contained and the Government of Kenya issues relevant directives to that effect;

ii) the requirement to file hard copies be suspended and instead parties be allowed to file documents virtually through electronic means; and

iii) the Competition Tribunal may also consider

adopting the measures outlined by the National Council on the Administration of Justice on 15 March 2020, such as holding hearings in the open with only the relevant parties present.

g) Competition Act, 2010

S. 72(b): the costs of the appeal shall be at the discretion of the Tribunal.

Costs. Rationale for proposed amendment The calculation of filing fees at the Competition Tribunal is based on combined asset/turnover of the acquirer and target. This tends to be quite exorbitant especially where the combined assets/turnover is worth millions or billions of shillings. Filing fees may therefore deter parties from filing cases at the Competition Tribunal, hence curtailing parties’ constitutional right to justice. The difficulty is magnified by the COVID-19 pandemic which has already caused a negative impact to the economy.

We recommend that the filing fees at the Competition Tribunal be reduced and made similar to the fees applicable to courts, with a maximum of Kenya Shillings seventy thousand (KES. 70,000), regardless of the combined turnover.

h) The Competition

Currently, merger transaction filing fees of

Reduction of merger filing fees in relation to mergers and other transaction in the healthcare,

We recommend that merger filing fees relating to mergers or other transactions in the


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(General) Rules, 2019 (the Rules)

up to KES 4 Million apply to all sectors including the healthcare sector.

pharmaceutical and other key sectors necessary to address pandemics. Rationale for proposed amendment The COVID-19 pandemic has revealed the weakness in the healthcare system and infrastructure not only in Kenya but also in the globe. The COVID-19 pandemic has crippled healthcare infrastructure in countries in the West giving rise to the call for the revamping of healthcare across the world and particularly the developing countries such as Kenya. In this regard, investments to the healthcare sector should not be delayed or prevented due to payment of significant merger filing fees which would have otherwise been invested in the healthcare infrastructure.

healthcare, pharmaceutical and other key sectors necessary to address pandemics be reduced significantly during the period of the COVID-19 pandemic and for a sufficient period thereafter until there has been reasonably sufficient investment in the sector to address the healthcare needs in the country.

i) The Competition (General) Rules, 2019

Part D: Currently, merger transaction filing fees of up to KES 4 Million apply to all transaction, including transactions in insolvency or business-rescue situations.

Reduction in the merger filing fees Rationale for proposed amendment The Competition (General) Rules were recently amended to provide for merger filing fees of up to KES 4 Million. However, based on the current and projected financial implications of COVID-19 on businesses, many parties are unlikely not be in a position to afford paying the higher merger filing fees, particularly in industries have been most negatively affected by the COVID-19 pandemic (e.g. aviation, restaurant and

We recommend: i) a reduction or waiver on merger filing fees

for proposed mergers or transactions that relate to industries that have been most negatively affected by the COVID-19 pandemic (such as aviation, restaurant and entertainment businesses, businesses in the horticulture sector, transport etc.); and

ii) a waiver on merger filing fees for transactions taking place in the context of insolvency or business-rescue.


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entertainment businesses, horticulture sector, transport etc). In addition, some businesses are likely to face insolvency and will require equity investment or consider business-rescue options that may involve disposals of parts of their business. The high merger filing fees would not be appropriate in such transactions. In order to promote investment in the country and pave way for recovery from COVID-19, the merger filing fees should be reduced or waived in relevant circumstances.

j) The Competition Tribunal Rules, 2017

Rule 15(1): an appeal (a notice of appeal and memorandum of appeal) to the Competition Tribunal is to be filed within thirty (30) days of receipt of the notification of the decision of the Competition Authority (the Authority).

Timelines. Rationale for proposed amendment. There may be practical challenges in filing appeals at the Competition Tribunal within thirty (30) days especially for decisions rendered by the Authority during this period. After the announcement of the first case of COVID-19 in Kenya, government agencies scaled down their operations and encouraged employees to work from home. The extension of the period (after the GOK End of COVID Gazette Notice is published) is intended to deal with any backlogs arising from COVID-19 and will only be applicable to the period when the COVID-19 pandemic containment measures were in force. The

We recommend that: i) the requirement to make an appeal within 30

days from the date of the Authority’s decision be suspended during the existence of the COVID-19 outbreak in Kenya and the timelines to do so be extended to 60 days from the date when the GoK End of COVID Gazette Notice is published; and

ii) the Competition Tribunal considers setting

up platforms for electronic or online filing of appeals.


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standard period of 30 days will continue to apply thereafter.

4.5 Kenya Information and Communications Act, No. 2 of 1998



a) Kenya Information and Communications Act, No. 2 of 1998

S. 82 (5), 83A (2) and S. 86 (4): a licensee aggrieved by the decision of the Commission under these sections may appeal to the Tribunal within 15 days from the date of receipt of the notice and the Tribunal may stay the modification pending its decision on the appeal.

Timelines for appeal. Rationale for proposed amendment There has been limited/no access to the Courts and Tribunals since the start of the COVID-19 outbreak in Kenya. The extension of the period (after the GOK End of COVID Gazette Notice is published) is intended to deal with any backlogs arising from COVID-19 and will only be applicable to the period when the COVID-19 pandemic containment measures were in force. The standard period of 15 days will continue to apply thereafter.

We recommend that the time period in respect of making an appeal be suspended for the duration of the COVID-19 pandemic in Kenya and the timelines for effecting such appeal be increased from 15 days from the date the person is notified of the decision of the Commission to within 30 days after the date on which the GoK End of COVID Gazette Notice is published.

b) Kenya Information and Communications Act, No. 2 of 1998

S. 85(5): any dispute arising between an operator and the owner or occupier of any land with respect to the provisions of this section may be referred to the Tribunal for adjudication within 30 days of the dispute.

Timelines for referring a dispute for adjudication. Rationale for proposed amendment There has been limited/no access to the Courts and Tribunals since the start of the COVID-10 pandemic. The extension of the period (after the GOK End of COVID Gazette Notice is published) is intended to deal with any backlogs arising from COVID-19 and

We recommend that the time period in respect of referring a dispute for adjudication be suspended for the duration of the COVID-19 pandemic in Kenya and the timelines for making such appeal be increased from 30 days from the date of the dispute within 45 days after the date on which the GoK End of COVID Gazette Notice is published.


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will only be applicable to the period when the COVID-19 pandemic containment measures were in force. The standard period of 30 days will continue to apply thereafter.

c) Kenya Information and Communications Act, No. 2 of 1998

S. 102B (5): a party may, within 14 days from the date of dismissal of a complaint made to the Communications and Multimedia Appeals Tribunal in respect of a journalist or any act or omission under the Kenya Information and Communications Act for lack of merit, apply for review or variation of the Tribunal's decision under subsection (4).

Timelines for review or variation of Tribunal decision. Rationale for proposed amendment There has been limited/no access to the Courts and Tribunals since the start of the COVID-19 outbreak in Kenya. The extension of the period (after the GOK End of COVID Gazette Notice is published) is intended to deal with any backlogs arising from COVID-19 and will only be applicable to the period when the COVID-19 pandemic containment measures were in force. The standard period of 14 days will continue to apply thereafter.

We recommend that the time period in respect of an application for review or variation of the Tribunal’s decision be suspended for the duration of the COVID-19 pandemic in Kenya and the timelines for effecting such review or variation be increased from 14 days from the date of the dismissal to 30 days after the date on which the GoK End of COVID Gazette Notice is published.

d) Kenya Information and Communications Act, No. 2 of 1998

S. 102C (1): the Tribunal shall sit at such times and in such places as it may appoint.

Sittings via video link or other types of similar technology. Rationale for proposed amendment In light of the COVID-19 outbreak in Kenya and the directives issued encouraging the avoidance public spaces and practicing the concept of social distancing, the Tribunal should allow for it sittings to occur online, or in very exceptional circumstances, physical sittings but with all strict precautionary measures being observed.

We recommend that the Tribunal makes provision for virtual sittings to be conducted through electronic means. If this is impractical, physical sittings should be allowed but subject to taking all necessary and strict precautions during the sitting with regard to social distancing and appropriate protective masks and other such measures.


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e) Kenya Information and Communications Act, No. 2 of 1998

S. 102F (2): any person who is aggrieved by an action or decision of the Media Council, the Authority or a person licensed under this Act, may within 60 days after the occurrence of the event or the making of the decision, against which he is dissatisfied, make a claim or appeal to the Tribunal.


We recommend that the time period in respect of the institution of an appeal be suspended for the duration of the COVID-19 pandemic in Kenya and the timelines for effecting such appeal be increased from 60 days from the date the person is notified of the decision of the Media Council to 90 days after the date on which the GoK End of COVID Gazette Notice is published.

f) Kenya Information and Communications Act, No. 2 of 1998

S. 102G (1): any person aggrieved by a decision or order of the Tribunal may, within 30 days of such a decision or order, appeal against such decision or order to the High Court.


We recommend that the time period in respect of the institution of an appeal be suspended for the duration of the COVID-19 pandemic in Kenya and the timelines for effecting such appeal be increased from 30 days from the date the person is notified of the decision of the Tribunal to 60 days after the date on which the GoK End of COVID Gazette Notice is published.


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g) Kenya Information and Communications (Licensing and Quality of Service) Regulations, 2010

Reg. 12 (2): any person who is aggrieved by the decision of the Commission made under this regulation may appeal to the Tribunal within 30 days from the date of the decision.


We recommend that the time period in respect of the institution of an appeal be suspended for the duration of the COVID-19 pandemic in Kenya and the timelines for effecting such appeal be increased from 30 days from the date the person is notified of the decision to 60 days after the date on which the GoK End of COVID Gazette Notice is published.

4.6 Kenya Communications (Appeals) Rules, 1999



a) Kenya Communications (Appeals) Rules, 1999

Rule 7: within 4 days of lodging its Memorandum of Appeal, the party shall effect service on the Respondents Rule 8: the respondent is allowed 21 days to file their responses to the appeal

Timelines for service. Rationale for proposed amendment In light of COVID-19 and the likely difficulty in physically effecting service on other parties in the appeal owing to the social distancing requirements, the restriction of movement of persons and the closure of most Advocates’ offices, parties should be allowed to do so virtually through electronic means and the timelines be extended.

We recommend that parties should be allowed to serve their appeal documents and respondents virtually through electronic means, preferably by way of email. The timeline for such service should be extended from 4 days to at least 21 days for the appellant and from 21 days to at least 30 days for the respondent.


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The extension of the timelines will only be applicable to the period when the COVID-19 pandemic containment measures were in force. The standard periods will continue to apply thereafter.

b) Kenya Communications (Appeals) Rules, 1999

Rule 9: conduct of hearings

Mechanics of hearing proceedings. Rationale for proposed amendment In light of COVID-19 and the directives issued on social distancing, Rule 9 should be amended to allow for online hearings, or in very exceptional circumstances, physical hearings but with all strict precautionary measures being observed.

We recommend that pursuant to the provisions of Article 159 of the Constitution together with Articles 48 and 50, the Tribunal should make provision for virtual hearings being conducted. If such provision is impossible or highly impractical, physical hearings should be allowed but subject to taking all necessary and strict precautions during the trial with regard to social distancing and appropriate gear.

4.7 Hire Purchase Act (Chapter 507, Laws of Kenya)



a) Hire Purchase Act (Chapter 507, Laws of Kenya)

S. 32: Service of notices and S. 33: Hirer may require information

Delivery of request for information by hand or registered post. Rationale for proposed amendment Delivery of an information request by hand or registered post may not be practical in light of the COVID-19 pandemic and the restriction in movement of persons.

We recommend that the method of service of or notices and/or delivery of request for information be amended to include delivery of requests via electronic means such as e-mail or short messaging service (SMS), provided that for an e-mail/SMS to have been deemed to have been served or delivered, a delivery receipt must have been received by the hirer in respect of the e-mail address notified or an acknowledgement


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The proposed amendment is intended to deal with requests for information via email.

of the email/SMS by the recipient sent to the hirer or vice versa.

4.8 Oaths and Statutory Declaration Act, Chapter 15, Laws of Kenya



i) Oaths and Statutory Declaration Act, Chapter 15, Laws of Kenya; and Oaths and Statutory Declaration Rules

S. 4: A commissioner for oaths may administer any oath or take any affidavit for the purpose of any court or matter in Kenya, including matters relating to the registration of any instrument, or for the purpose of any civil proceeding in court. Rule 8: A commissioner for oaths before administering an oath must satisfy himself that the person named as the deponent and the person before him are the same, and that such person is outwardly in a fit state to understand what he is doing.

Administering oaths and taking affidavits in person. Rationale for proposed amendment In light of the government directives in relation to social distancing, restriction of movement of persons and limited access to courts on account of the COVID-19 outbreak in Kenya administering oaths and taking affidavits in person may not be practical or possible. The proposal to permit virtual/remote administration of oaths and taking of affidavits via video link or other types of technology and the use of electronic signatures is intended to assist parties who are unable to physically appear before the commissioner of oaths to obtain affidavits. Furthermore, a commissioner of oaths should be expressly allowed to satisfy himself that the deponent virtually/remotely appearing before him is the same by relying on electronic form identification documents.

We recommend that the method of administering oaths and taking affidavits be amended to include the virtual/remote administration of oaths and taking of affidavits such as by video link or other types of technology, this amendment should also include permitting electronic signature of the affidavits and the verification of an individual’s identity through electronic form identification documents pursuant to the Kenya Information and Communications Act, Chapter 411A.

j) Oaths and Statutory

S. 5: Every commissioner for oaths before whom

Administering oaths and taking affidavits in person.

We recommend that the prescribed form of the jurat in the Third Schedule of the Oaths and


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Declaration Act, Chapter 15, Laws of Kenya

any oath or affidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made.

Rationale for proposed amendment In light of the government directives in relation to social distancing, restriction of movement of persons and limited access to courts on account of the COVID-19 outbreak in Kenya administering oaths and taking affidavits in person may not be practical or possible. The proposal to permit virtual/remote administration of oaths and taking of affidavits via video link or other types of technology and the use of electronic signatures is intended to assist parties who are unable to physically appear before the commissioner of oaths to obtain affidavits.

Statutory Declaration Act, Chapter 15, Laws of Kenya or attestation be amended to include wording with respect to virtual/remote administration of oaths and taking of affidavits so that the documents can be obtained without the need for a physical meeting or circulation of hard copies for execution and permitting electronic signature of the affidavits pursuant to the Kenya Information and Communications Act, Chapter 411A. A party can execute the document electronically as follows:

i) paste a scan of their signature onto their document and send the document to the commissioner for oaths;

ii) print the document sign, scan and send the scanned copies to the commissioner for oaths; or

iii) use electronic signature platform to insert a typed or handwriting font into the execution block and send the scanned copies to the commissioner for oaths.

Once the commissioner for oaths receives the scanned copies, he will print, sign, stamp the documents and thereafter send the scanned copies via email.


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The original documents executed by the parties using manual "wet-ink" signatures can be sent to the commissioner for oaths after the COVID-19 pandemic for verification of the authenticity of the electronically executed and scanned documents.

4.9 Computer Misuse and Cybercrimes Act No. of 2018



a) Computer Misuse and Cybercrimes Act, No. 5 of 2018

S. 55: Any person aggrieved by any decision or order of the Court under this Part, may appeal to the High Court or Court of Appeal as the case be within thirty days from the date of the decision or order.

Timelines for appeal. Rationale for proposed amendment There has been limited/no access to the Courts since the start of the COVID-19 outbreak in Kenya. The extension of the period (after the GOK End of COVID Gazette Notice is published) is intended to deal with any backlogs arising from COVID-19 and will only be applicable to the period when the COVID-19 pandemic containment measures were in force. The standard period of 30 days will continue to apply thereafter.

We recommend that the time period in respect of the institution of an appeal be suspended for the duration of the COVID-19 pandemic in Kenya and the timelines for effecting such appeal be increased from 30 days from the date the person is notified of the decision of the Board to 60 days after the date on which the GoK End of COVID Gazette Notice is published.


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4.10 Copyright Act, No. 12 of 2001



a) Copyright Act, No. 12 of 2001

S. 21 (1): A person aggrieved by the decision of the Board under this act may, within 60 days from the date of the decision, appeal to the Copyright Tribunal. Regulation 18 (4) (5), (8), (9) and (10).

Timelines for appeal. Rationale for proposed amendment There has been limited/no access to the Courts or Tribunals since the start of the COVID-19 outbreak in Kenya. The extension of the period (after the GOK End of COVID Gazette Notice is published) is intended to deal with any backlogs arising from COVID-19 and will only be applicable to the period when the COVID-19 pandemic containment measures were in force. The standard period of 60 days will continue to apply thereafter.

We recommend the suspension of the date of expiry of the appeal period under section 21 and any other timelines under regulation 18 where the date of such expiry falls within the COVID-19 crisis period. The expiry of the appeal period and other time periods be extended to within 90 days after the date on which the GoK End of COVID Gazette Notice is published.

b) Copyright Act, No. 12 of 2001

S. 35D: a person may apply to the High Court for the grant of interim relief where he or she has reasonable grounds to believe that his or her copyright is being or may be infringed by a person situated in or outside Kenya.

Interim relief measures. Rationale for proposed amendment Save for urgent matters, it will be difficult for the High Court to entertain any application for injunctive reliefs during this period. The High Court should refrain from issuing adverse interim orders ex parte during this period. This is because the orders may not be served in time, considering that most offices have either scaled down their operations or ceased operations all together, hence posing a challenge in serving such orders.

We recommend that: i) the High Court considers suspending the

issuance of adverse interim orders. Alternatively, interim orders may only be issued for urgent matters, provided they do not adversely prejudice the other party;

ii) only applications for injunctive reliefs in urgent matters should be electronically filed/service as per the Civil Procedure (Amendment) Rules, 2020 and the directives issued by the National Council on


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Additionally, if the orders were to be served electronically, the strict requirements of the Civil Procedure (Amendment) Rules, 2020 on electronic service may not be met. Lastly, an aggrieved party may not be in a position to respond/challenge the orders in time considering the various restrictive directives issued by the government/judiciary.

the Administration of Justice on 15 March 2020;

iii) hearing of urgent matters should be

carried out by video/audio conferencing; and

iv) service of urgent documents and any

consequential orders be undertaken electronically in accordance with the provisions of the Civil Procedure (Amendment) Rules, 2020.

c) Copyright Act, No. 12 of 2001

S. 38 (9): No prosecution for an offence under this section shall be instituted after the expiration of the period of 3 years immediately following the date of the alleged offence.

Expiry of the right to prosecute an offence. Rationale for proposed amendment There has been limited/no access to the Courts since the start of the COVID-19 outbreak in Kenya. The extension of the period (after the GOK End of COVID Gazette Notice is published) is intended to deal with any backlogs arising from COVID-19 and will only be applicable to the period when the COVID-19 pandemic containment measures were in force. The standard period 3 years will continue to apply thereafter.

We recommend the suspension of the date of expiry of any prosecution time period where the date of such expiry falls within the COVID-19 crisis period. The expiry of the prosecution period be extended to 1 year after the date on which the GoK End of COVID Gazette Notice is published.

d) Copyright Act, 2001

S. 37: Anton Piller orders. Rationale for proposed amendment is set out in b) above.

We recommend that: i) an online filing system be set up;

ii) the requirement to file hard copies be

suspended and instead parties be allowed


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to file documents virtually through electronic means; and

iii) the proceedings be conducted via audio/video conference with the relevant parties until such a time when the COVID-19 pandemic is contained and the Government of Kenya issues relevant directives to that effect.

e) Copyright Regulations, 2004

Reg. 16 (2): Every registered collecting society shall within 3 months after the end of each financial year, submit to the Board on Form No. CR 16 an annual report for that year accompanied by a copy of its audited accounts in respect of that year.

Timelines and the consequential penalties for non-compliance. Rationale for proposed amendment There has been restricted access to registries (or the registries have been largely closed and are not open for normal business) and government offices since the start of the COVID-19 outbreak in Kenya which has made it difficult or impossible for registered entities to comply with their statutory obligation to file annual reports both electronically and through a manual process. The extension of the period from 3 months after the end of each year to 4 months (after the GOK End of COVID Gazette Notice is published) is intended to deal with any backlogs arising from COVID-19 and will only apply to documents relating to the period when the COVID-19 pandemic containment measures were in force. The standard period of 3 months after the end of each year will continue to apply thereafter.

We recommend that: i) provision be made for the electronic filing

of the annual reports for the duration of the COVID-19 pandemic in Kenya and the timelines for lodging annual reports be increased from 3 months after the end of each year to 4 months after the date on which the GoK End of COVID Gazette Notice is published; and


non-compliance are waived for the duration of the COVID-19 pandemic until the GOK End of COVID Gazette Notice is published.


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4.11 Trade Marks Act, Chapter 506, Laws of Kenya



a) Trade Marks Act, Chapter 506, Laws of Kenya

S. 31 (3): A licensee of a trade mark shall be entitled to call upon the proprietor thereof to take proceedings to prevent infringement thereof, and, if the proprietor refuses or neglects to do so within 2 months, the licensee may institute proceedings for infringement in his own name, as if he were the proprietor.

Timelines for taking proceedings to prevent infringement of a trade mark. Rationale for proposed amendment There has been limited/no access to the Courts or Tribunals since the start of the COVID-19 outbreak in Kenya. The extension of the period (after the GOK End of COVID Gazette Notice is published) is intended to deal with any backlogs arising from COVID-19 and will only be applicable to the period when the COVID-19 pandemic containment measures were in force. The standard period of two months will continue to apply thereafter.

We recommend the suspension of the date of expiry of the time period for any registered proprietor to institute infringement proceedings at the request of the licensee, where the date of such expiry falls within the COVID-19 crisis period. The expiry of the said period ought to be extended to within 3 months after the date on which the GoK End of COVID Gazette Notice is published.

b) Trade Marks Act, Chapter 506, Laws of Kenya

S. 54A: Mode of giving evidence.

Giving viva voce evidence via video link or other types of similar technology. Rationale for proposed amendment In light of the government directives in relation to social distancing, restriction of movement of persons and limited access to courts on account of the COVID-19 outbreak in Kenya taking evidence viva voce may prove difficult or impossible. The proposal is to allow for taking of evidence via online hearings.

We recommend that the mode of taking evidence viva voce be amended to allow for taking of evidence via online hearings.


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c) Trade Marks Act, Chapter 506, Laws of Kenya

S. 65 (1): Where any person has registered or has applied for protection for any trade mark in any foreign state with the government of which the Government of Kenya has made arrangements for mutual protection of trade marks, that person shall be entitled to registration of his trade mark in priority to other applicants; and that registration shall have the same date as the date of application for protection in the foreign state if the application for registration is made within 6 months from the date of the application for protection in the foreign state.

Timelines for the registration of a trade mark registered in a foreign state. Rationale for proposed amendment There has been restricted access to registries (or the registries have been largely closed and are not open for normal business) since the start of the COVID-19 outbreak in Kenya which has made it difficult or impossible for a person to comply with the timelines prescribed by statute for submission of an application for the registration of a trade mark registered in a foreign state both electronically and through a manual process. The extension of the period (after the GOK End of COVID Gazette Notice is published) is intended to deal with any backlogs arising from COVID-19 and will only be applicable to the period when the COVID-19 pandemic containment measures were in force. The standard period of six months will continue to apply thereafter.

We recommend the suspension of the date of expiry of any 6 month priority period that is set to lapse during the COVID-19 crisis period. The expiry of the said priority period ought to be extended to 2 months after the date on which the GoK End of COVID Gazette Notice is published.

d) Trade Mark Rules

Reclassification Applications - Rule 7 (5): A person who wishes to oppose the proposed amendment shall do so by filing a notice of

Timelines for filing notice of opposition. Rationale for proposed amendment There has been restricted access to registries (or the registries have been largely closed and are not open

We recommend that the timelines for filing the notice of opposition be suspended for the duration of the COVID-19 pandemic in Kenya and the timelines for filing the notice be increased from 30 days after the date of the advertisement to 60 days from the date on which the GOK End


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opposition with the Registrar within 30 days after the date of advertisement.

for normal business) since the start of the COVID-19 outbreak in Kenya which has made it difficult or impossible for interested parties to comply with the timelines prescribed by statute for filing a notice of opposition both electronically and through a manual process.

of COVID Gazette Notice is published. The standard period of 30 days will continue to apply thereafter.

e) Trade Mark Rules

Rule 7 (10): The counter-statement shall be in Form TM 7 and shall be filed in duplicate within 30 days after the applicant received the notice of opposition.

Timelines for filing a counter-statement. Rationale for proposed amendment There has been restricted access to registries (or the registries have been largely closed and are not open for normal business) since the start of the COVID-19 outbreak in Kenya which has made it difficult or impossible for interested parties to comply with the timelines prescribed by statute for filing a counter-statement both electronically and through a manual process.

We recommend that the timelines be suspended for the duration of the COVID-19 pandemic in Kenya and the timelines for filing the notice be increased from 30 days after the date of the advertisement to 60 days from the date on which the GOK End of COVID Gazette Notice is published. The standard period of 30 days will continue to apply thereafter.

f) Trade Mark Rules

Rule 7 (13): If a party requests an opportunity to be heard, the Registrar shall give notice to the parties of a date when he will hear the arguments in the case.

Hearing via video link or other types of similar technology. Rationale for proposed amendment In light of the government directives in relation to social distancing, restriction of movement of persons and limited access to courts on account of the COVID-19 outbreak in Kenya having a hearing in person may prove difficult or impossible.

We recommend that the mode of the hearing be amended to allow for online hearings, or in very exceptional circumstances, physical hearings but with all precautionary measures being strictly observed.


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The proposal to allow for online hearings, or in very exceptional circumstances, physical hearings but with all strict precautionary measures being observed.

g) Trade Mark Rules

Rule 7 (15) and (16): Within 7 days after the receipt of the notice a party who intends to appear shall so notify the Registrar in Form TM 8. (16) A party who receives notice and who does not, within 7 days after the receipt of the notice, notify the Registrar in Form TM 8 that he intends to appear, may be treated as not desiring to be heard and the Registrar may act accordingly.

Timelines and the consequential penalties for non-compliance. Rationale for proposed amendment There has been restricted access to registries (or the registries have been largely closed and are not open for normal business) since the start of the COVID-19 outbreak in Kenya which has made it difficult or impossible for interested parties to comply with the timelines prescribed by statute for filing a notice in Form TM 8 both electronically and through a manual process.

We recommend that the timelines be suspended for the duration of the COVID-19 pandemic and the timelines for filing the notice be increased from 30 days after the date of the advertisement to 60 days from the date on which the GOK End of COVID Gazette Notice is published. The standard period of 30 days will continue to apply thereafter.

h) Trade Mark Rules

Rule 11: Service of documents

Service of documents by post or official paid letter. Rationale for proposed amendment In light of the government directives in relation to social distancing, restriction of movement of persons and limited access to services such as post office

In line with the notice issued by the Ag. Managing Director of Kenya Industrial Property Institute on 23 March 2020 requesting applicants to file applications via email, we recommend that this Rule is amended to allow for documents to be filed and/or served electronically and to require parties to any proceedings before the Registrar to supply the Registrar with official


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services service of documents in person or through post will prove difficult or impossible.

email addresses through which service of documents may be effected.

i) Trade Mark Rules

Rule 20 (2): A notice of withdrawal of an application for the registration of a trade mark given under section 43 (3) of the Act for the purpose of obtaining repayment of any fee paid on the filing of the application shall be given in writing within 2 months from the date of the notice of the Registrar’s objection.

Timelines and the consequential penalties for non-compliance. Rationale for proposed amendment There has been restricted access to registries (or the registries have been largely closed and are not open for normal business) since the start of the COVID-19 outbreak in Kenya which has made it difficult or impossible for interested parties to comply with the timelines prescribed by statute for filing a notice of withdrawal both electronically and through a manual process.

We recommend that the timelines for filing the notice of withdrawal be suspended for the duration of the COVID-19 pandemic in Kenya and the timelines for filing the notice be increased from 2 months from the date of the notice of the Registrar’s objection to 3 months after the date on which the GOK End of COVID Gazette Notice is published. The standard period of 2 months will continue to apply thereafter.

j) Trade Marks Rules

Examination of Trade Mark Applications - Rule 32: If the Registrar objects to the application, he shall inform the applicant of his objections in writing, and unless within 90 days from the date of the communication the applicant applies for a hearing or makes a considered reply in writing to those objections he shall be

Timelines and the consequential penalties for non-compliance. Rationale for proposed amendment There has been restricted access to registries (or the registries have been largely closed and are not open for normal business) since the start of the COVID-19 outbreak in Kenya which has made it difficult or impossible for interested parties to comply with the timelines prescribed by statute for filing an application for a hearing or a reply to the Registrar’s objection both electronically and through a manual process.

We recommend that:

i) the timelines for filing an application for a hearing or a considered reply to the Registrar’s objection be suspended for the duration of the COVID-19 pandemic in Kenya and the timelines for filing the notice of opposition be increased from 90 days to 120 days after the date on which the GOK End of COVID Gazette Notice is published. The standard period of 90 days will continue to apply thereafter;

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deemed to have withdrawn his application.

ii) the timelines for doing so be extended by a period of at least 30 days and such directions be adhered to until the date on which the GoK End of COVID Gazette Notice is published; and

iii) all the penalties and other liabilities for non-


k) Trade Mark Rules

Rules 33 (1) and 33 (2): If the Registrar is willing to accept the application subject to any conditions, amendments, disclaimer, modifications or limitations, he shall communicate his willingness to the applicant in writing, and, if the applicant objects, he shall within 90 days from the date of the communication apply for a hearing or communicate his considered objections in writing, and if he does not do so he shall be deemed to have

Timelines and the consequential penalties for non-compliance. Rationale for proposed amendment There has been restricted access to registries (or the registries have been largely closed and are not open for normal business) since the start of the COVID-19 outbreak in Kenya which has made it difficult or impossible for interested parties to comply with the timelines prescribed by statute for filing an application for a hearing or objections to the Registrar’s conditions both electronically and through a manual process.

We recommend that: i) the timelines for filing an application for a

hearing or a considered reply to the Registrar’s objection be suspended for the duration of the COVID-19 pandemic in Kenya and the timelines for filing the application for hearing or reply be increased from 90 days to 120 days after the date on which the GOK End of COVID Gazette Notice is published. The standard period of 90 days will continue to apply thereafter;

ii) the timelines for doing so be extended by a

period of at least 30 days and such directions be adhered to until the date on which the GoK End of COVID Gazette Notice is published; and


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withdrawn his application.


l) Trade Mark Rules

Rule 46: Any person may, within 60 days from the date of any advertisement in the Journal or Kenya Gazette of an application for registration of a trade mark, give notice in Form TM 6 to the Registrar of opposition to the registration.

Timelines and the consequential penalties for non-compliance. Rationale for proposed amendment There has been restricted access to registries (or the registries have been largely closed and are not open for normal business) since the start of the COVID-19 outbreak in Kenya which has made it difficult or impossible for interested parties to comply with the timelines prescribed by statute for filing a notice of opposition both electronically and through a manual process.

We recommend that: i) the timelines for filing notice of opposition

be suspended for the duration of the COVID-19 pandemic in Kenya and the timelines for filing the notice of opposition be increased from 60 days to 90 days after the date on which the GOK End of COVID Gazette Notice is published. The standard period of 60 days will continue to apply thereafter; and

ii) the timelines for doing so be extended by a period of at least 30 days and such directions be adhered to until the date on which the GoK End of COVID Gazette Notice is published.

m) Trade Mark Rules

Rule 48: Within 42 days from the receipt of the duplicate the applicant shall send to the Registrar a counter-statement in Form TM 7 setting out the grounds on which he relies as supporting his application.

Timelines for filing documents. Rationale for proposed amendment There has been restricted access to registries (or the registries have been largely closed and are not open for normal business) since the start of the COVID-19 outbreak in Kenya which has made it difficult or impossible for interested parties to comply with the

We recommend that:

i) the requirement for filing documents be limited to matters that are extremely urgent and deemed so by the Registrar;

ii) the timelines for doing so be extended by a period of at least 30 days and such directions be adhered to until the date on which the


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Rule 49: Within 42 days after the receipt of the duplicate counter-statement, the opponent shall leave with the Registrar such evidence by way of statutory declaration as he desires to adduce in support of his opposition. Rule 50: Within 42 days after the receipt of the statutory declaration of the opponent under rule 49, the applicant shall leave with the Registrar such evidence by way of statutory declaration as he desires to adduce in support of his application. Rule 51: Within 30 days after the receipt of the statutory declaration of the applicant under rule 50, the opponent may leave with the Registrar evidence, by way of statutory declaration.

timelines prescribed by statute for filing a counter-statement both electronically and through a manual process.

GoK End of COVID Gazette Notice is published.


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n) Trade Mark Rules

Rule 87: Where application is made in Form TM 23 to enter a disclaimer or memorandum relating to a trade mark, the Registrar, before deciding upon such application, shall advertise the application in the Journal or Kenya Gazette in order to enable any person desiring so to do to state, within 30 days of the advertisement, any reasons in writing against the making of the entry of the disclaimer or memorandum.

Timelines and the consequential penalties for non-compliance. Rationale for proposed amendment There has been restricted access to registries (or the registries have been largely closed and are not open for normal business) since the start of the COVID-19 outbreak in Kenya which has made it difficult or impossible for interested parties to comply with the timelines prescribed by statute for submitting reasons against the entry of the disclaimer or advertisement both electronically and through a manual process.

We recommend that the timelines for submitting reasons against the entry of the disclaimer be suspended for the duration of the COVID-19 pandemic in Kenya and the timelines for submitting reasons against entry of the disclaimer be increased from 30 days from the date of the advertisement to 60 days after the date on which the GOK End of COVID Gazette Notice is published. The standard period of 30 days will continue to apply thereafter.

o) Trade Mark Rules

Applications to alter registered Trade Marks - Rule 90 (2): Any person may, within 30 days after the date of the advertisement of the application, give notice in Form TM 6 to the Registrar of opposition to the application and rules

Timelines for filing the notice of opposition. Rationale for proposed amendment There has been restricted access to registries (or the registries have been largely closed and are not open for normal business) since the start of the COVID-19 outbreak in Kenya which has made it difficult or impossible for interested parties to comply with the timelines prescribed by statute for filing notice of

We recommend that the timelines for filing a notice of opposition be suspended for the duration of the COVID-19 pandemic in Kenya and the timelines for filing the notice be increased from 30 days from the date of the advertisement to 60 days after the date on which the GOK End of COVID Gazette Notice is published. The standard period of 30 days will continue to apply thereafter.


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47 to 57 shall apply with necessary modifications. Rule 94 (2): Where the Registrar causes such an application to be advertised, the time within which any person may give notice to the Registrar of opposition to the application shall be thirty days from the date of the advertisement.

opposition both electronically and through a manual process.

p) Trade Mark Rules

Rule 104: An application for a hearing shall be made within 30 days from the date of notification by the Registrar of any objection to an application or the date of any other indication that he proposes to exercise a discretionary power.

Timelines for filing an application for a hearing. Rationale for proposed amendment There has been restricted access to registries (or the registries have been largely closed and are not open for normal business) since the start of the COVID-19 outbreak in Kenya which has made it difficult or impossible for interested parties to comply with the timelines prescribed by statute for filing an application for hearing both electronically and through a manual process.

We recommend that: i) the timelines for filing an application for a

hearing be suspended for the duration of the COVID-19 pandemic in Kenya and the timelines for filing an application for hearing be increased from 90 days to 120 days after the date on which the GOK End of COVID Gazette Notice is published. The standard period of 30 days will continue to apply thereafter; and

ii) if filing is deemed necessary, the timeline for doing so be extended by a period of at least 30 days and such directions be adhered to until the date on which the GoK End of COVID Gazette Notice is published.


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q) Trade Mark Rules

Rule 105 (1): Upon receiving such application, the Registrar shall give the person applying 14 days’ notice of a time when he may be heard.

Timelines for hearing. Rationale for proposed amendment In light of the government directives in relation to social distancing, restriction of movement of persons and limited access to courts on account of the COVID-19 outbreak in Kenya giving a fourteen day notice for a hearing may prove inadequate.

We recommend that: i) the requirement for hearings be limited to

matters that are extremely urgent and deemed so by the Registrar and the Rules be amended to allow online hearings, or in very exceptional circumstances, physical hearings but with all strict precautionary measures being observed; and

ii) if a hearing is deemed necessary, the timeline for doing so be extended by a period of at least 30 days and such directions be adhered to until the date on which the GoK End of COVID Gazette Notice is published.

r) Trade Mark Rules

Rule 105 (2): Within 7 days from the date when the notice would be delivered in the ordinary course of post, the person applying shall notify the Registrar whether or not he intends to be heard on the matter, and if he intends to appear he shall file Form TM 8 and pay the prescribed fee thereon.

Timelines for filing a notice in Form T8. Rationale for proposed amendment There has been restricted access to registries (or the registries have been largely closed and are not open for normal business) since the start of the COVID-19 outbreak in Kenya which has made it difficult or impossible for interested parties to comply with the timelines prescribed by statute for filing a notice of intention to be heard both electronically and through a manual process.

We recommend that: i) the requirement to the notice in Form TM 8

be limited to matters that are extremely urgent and deemed so by the Registrar; and



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s) Trade Mark Rules

Rule 121: A document submitted to the Registrar in electronic form shall be deemed to have been submitted in accordance with these Rules on the day the electronic form is submitted if, within 30 days after that submission, the document is submitted to the Registrar in paper form in accordance with these Rules together with any applicable fee required under these Rules.

Timelines and the consequential penalties for non-compliance. Rationale for proposed amendment There has been restricted access to registries (or the registries have been largely closed and are not open for normal business) since the start of the COVID-19 outbreak in Kenya which has made it difficult or impossible for interested parties to comply with the statutory obligation to submit documents in paper form following submission of the documents in electric form. The extension of the period (after the GOK End of COVID Gazette Notice is published) from 30 to 60 days is intended to deal with any backlogs arising from COVID-19 and will only apply to documents relating to the period when the COVID-19 pandemic containment measures were in force. The standard period of 30 days will continue to apply thereafter.

We recommend that: i) the requirement to submit documents in

paper form following submission of the documents in electronic form be suspended for the duration of the COVID-19 pandemic in Kenya and the timelines for submitting the documents be increased from 30 days of the documents being submitted in electronic form to 60 days after the date on which the GoK End of COVID Gazette Notice is published; and

ii) all the penalties and other liabilities for non-


t) Trade Mark (International Registration) Rules, 2003

Rule 11 (1): Any person may, within 60 days of the advertisement of an application under rule 9 (b), give notice to the Registrar of opposition to the intended registration.

Timelines for filing a notice of opposition. Rationale for proposed amendment There has been restricted access to registries (or the registries have been largely closed and are not open for normal business) since the start of the COVID-19 outbreak in Kenya which has made it difficult or impossible for interested parties to comply with the timelines prescribed by statute for filing a notice of

We recommend that the timelines for filing a notice of opposition be suspended for the duration of the COVID-19 pandemic in Kenya and the timelines for filing the notice be increased from 30 days from the date of the advertisement to 60 days after the date on which the GOK End of COVID Gazette Notice is published. The standard period of 30 days will continue to apply thereafter.


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opposition to registration both electronically and through a manual process.


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4.12 The Industrial Property Act, 2001 and the Industrial Property Tribunal Rules, 2002



a) Industrial Property Rules, 2002 (the IP Rules)

Rule 6: an appeal from any decision of the Managing Director of the Kenya Industrial Property Institute will be filed at the Industrial Property Tribunal (the IP Tribunal) via a notice of motion to be filed within 90 days of the notification of the decision.

Timelines. Rationale for proposed amendment Due to COVID-19 and the containment measures directed by the Government, government agencies scaled down their operations. There may be practical challenges in filing appeals at the IP Tribunal within ninety (90) days especially for decisions rendered during this period, especially, in the absence of an online filing system.

We recommend that: i) the requirement to file appeals within 90

days be suspended for the duration of the COVID-19 pandemic in Kenya (however, to the extent that a company is able to make filings electronically, this should be allowed to continue);

ii) the timelines for lodging appeals be increased to 90 days after the date on which the GoK End of COVID Gazette Notice is published; and

iii) the Tribunal considers setting up an online

filing system.

b) The IP Rules Rule 6: this refers to the number of documents that need to be filed at the IP Tribunal.

Requirement to file hard copies with the Tribunal. Rationale for proposed amendment Due to COVID-19 and the containment measures directed by the Government, government agencies scaled down their operations. It may be difficult, in the absence of electronic filing for parties file their documents. This requirement may also put members of the public and tribunal staff at the risk of contracting the COVID- 19.

We recommend that: i) the Tribunal considers setting up an online

filing system; and

ii) the requirement to file hard copies be suspended and instead parties be allowed to file documents virtually through electronic means.


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c) The IP Rules Rule 36: application to the IP Tribunal for orders.

Logistical challenges of filing applications. Rationale for proposed amendment Due to COVID-19 and the containment measures directed by the Government, After the announcement of the first case of Covid-19 in Kenya in government agencies scaled down their operations. It may be difficult, in the absence of electronic filing for parties file their document. This requirement may also put members of the public and tribunal staff at the risk of contracting the Covid- 19.

We recommend that: i) the Tribunal considers setting up an online

filing system;

ii) The requirement to file hard copies be suspended and instead parties be allowed to file documents virtually through electronic means; and

iii) the proceedings of the Tribunal be

conducted via audio/video conference with the relevant parties until such a time when the COVID-19 pandemic is contained and the Government of Kenya issues relevant directives to that effect;


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5 HEALTHCARE LAWS, PUBLIC ORDER AND PUBLIC FINANCE MANAGEMENT LAWS

5.1 The Public Finance Management (Covid-19 Emergency Response Fund) Regulations, 2020



a) The Public Finance Management (Covid-19 Emergency Response Fund) Regulations, 2020

Reg. 2: Interpretations – definition of Frontline workers

The definition of Frontline workers under the regulations should be expanded to include other categories of persons who by their nature of work, can be regarded as being in the front line in the fight against the COVID-19 pandemic.

We recommend that the definition Frontline workers be expanded to include social workers, nurses, dentists, psychiatrists, psychologists, Pharmacists, Physicians, Pharmaceutical Technologists, immigration officers, custom officers, security officers, community health assistants, support staff in hospitals and clinics and volunteers.

b) The Public Finance Management (Covid-19 Emergency Response Fund) Regulations, 2020

Definition of Health Professionals

To avoid ambiguity, we would recommend that a definition of Health Professional is included.

We recommend that the definition of health professional is provided and such definition should include persons who may provide health care treatments and advice based on formal training and experience including but not limited to physicians, surgeons, nurses, doctors, dentists, midwives, psychiatrist, or persons who perform services in allied health professions.

c) The Public Finance Management (Covid-19 Emergency Response Fund) Regulations, 2020

Definition of Hosting Institutions

To avoid ambiguity, we recommend that a definition of Hosting Institutions is included.

We recommend that the definition of hosting institutions is provided and such definition should include centres set out for isolation as well as quarantine areas including but not limited to hospitals, hotels, schools and any other relevant institutions.


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d) The Public Finance Management (Covid-19 Emergency Response Fund) Regulations, 2020

Reg. 4(2)(a): the purpose of the fund established includes among others, to fund the purchase of essential supplies for public hospitals and other related institutions, health professionals and frontline workers, as need arises.

This regulation fails to include private hospitals which are also essential and capable of offering essential services in combating COVID-19, more particularly in procurement of COVID-19 testing kits as well as medical protective gear and equipment which shall be purchased by the state. The term other related institutions is too vague and brings about ambiguity as to who is captured within the term.

We recommend that this regulation is amended to provide that the Fund can also work with private hospitals and clinics to achieve its objectives.

e) The Public Finance Management (Covid-19 Emergency Response Fund) Regulations, 2020

Reg. 4(2)(b): the purposes of the fund includes among others, to fund programmes and initiatives towards cushioning and provision of emergency relief to the most vulnerable, older and poor persons in urban informal settlements

This regulation fails to include the poor in urban formal settlements who will also be impacted by COVID-19. We also recommend that the fund should cater to the families of health professionals and frontline workers who in the course of their business may be affected by COVID-19 and in the worst instance lose their lives.

We recommend that this regulation is amended to:

(i) include cushioning and provision of emergency relief to poor persons in urban formal settlements; and

(ii) catering for the families of health professionals and frontline workers who may be negatively affected by COVID-19

f) The Public Finance Management (Covid-19 Emergency Response Fund)

N/A The Regulations should also cater to cemeteries which will also be key in the fight against COVID-19 and in that regard, to allocate funds for disposal of bodies of persons who have passed on due to COVID-19.

We recommend that the regulation is amended to include as one of the purposes of the fund, to allocate funds to cemeteries to enable proper disposal of bodies of persons who have passed on due to COVID-19.


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Regulations, 2020

g) The Public Finance Management (Covid-19 Emergency Response Fund) Regulations, 2020

N/A We also note that in the current circumstances, security for health professionals and frontline workers will be necessary. We recommend that the regulation is amended so that the state provides adequate security to health professionals.

We recommend that the regulation is amended to include a provision that the government will ensure that adequate security is guaranteed to health professionals and frontline workers as they carry out their duties in relation to combating COVID-19.

h) The Public Finance Management (Covid-19 Emergency Response Fund) Regulations, 2020

N/A As part of the efforts at combating COVID-19, some of the funds should be allocated for the purchase and distribution of sanitizers, hand washes, masks, thermometers and undertaking training and awareness of safety measures.

We recommend that the regulation is amended to include as one of the purposes of the fund, the funding of the supply of sanitizers, hand wash, masks, thermometers and training on safety measures.

Reg. 7 – the COVID-19 Emergency Response Fund Board shall consist of a chairperson appointed by the president, the Cabinet Secretary for Interior and coordination of National Government, Chairperson of the Council of Governors and

To facilitate the proper implementation and enforcement of the regulation and the fund, it would be important that the members of the COVID-19 Emergency Response Fund Board have expertise in medicine, law, economics, disaster management and public health. We would also recommend that the Cabinet Secretary for Health is a member of the COVID-19 Emergency Response Fund Board.

We recommend that the regulations be amended to

(i) include qualifications of the members appointed by the COVID-19 Emergency Response Fund Board so that we have a broad range of persons with qualifications in medicine, law, economics, disaster management and public health; and


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8 other members who shall not be public officers, appointed by the President.

(ii) include the Cabinet Secretary for Health as a member of the COVID-19 Emergency Response Fund Board

i) The Public Finance Management (Covid-19 Emergency Response Fund) Regulations, 2020

N/A We note that the regulations are silent on who is to cater for medical costs for the treatment and care of persons infected with COVID-19 whether admitted to public or private hospitals.

We recommend that the regulations are amended to provide clarity about settlement of medical costs for the treatment and care of persons infected with COVID-19 whether admitted to public or private hospitals

j) The Public Finance Management (Covid-19 Emergency Response Fund) Regulations, 2020

N/A To ensure accountability in the use of funds, there should also be provisions for audit of the financial statements of the fund.

We recommend that the regulations are amended to include standard provisions for the preparation of financial statements of the fund and audit of the same.


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5.2 Public Health (Prevention, Control and Suppression of Covid-19) Regulations, 2020



a) Public Health (Prevention, Control and Suppression of Covid-19) Regulations, 2020

Reg 6: Where a building, premises or conveyance has signs of contamination with COVID-19 or where a medical officer of health has information of contamination of a building, premises or conveyance, the medical officer of health may decontaminate or cause the decontamination of the affected building, premises or conveyance.

The regulation does not set out the party which should bear the cost of the decontamination. The consequence of the ambiguity may be that owners of such buildings may be wary of the costs of decontamination, and therefore reluctant to do it.

We recommend that this Regulation be amended to state that the decontamination shall be done by the government at its own cost. Alternatively, if this proposal is not feasible, the decontamination may be done by the owner of the relevant premises at their own cost, which shall be recoverable from the government.

b) Public Health (Prevention, Control and Suppression of Covid-19) Regulations, 2020

Reg 7: Where a building, premises or conveyance has signs of contamination with COVID-19 or where a medical officer of health or public health officer has information of contamination of a building, premises or conveyance, the medical officer of health or public health officer may direct

Given the definition of buildings and premises in the Public Health Act (Act No. 38 of 1921, Laws of Kenya), this regulation would apply to both residential and commercial properties. It is however not clear what will happen to tenants in the event an evacuation or entry prohibition is ordered in respect of residential properties (assuming decontamination takes more than 12 hours).

We recommend that this Regulation be amended to provide the following: (i) alternative accommodation for the

occupants of residential buildings and premises that are evacuated or where entry to the same is prohibited or provision of funds to the affected individuals to enable them obtain reasonable alternative accommodation for the period of the decontamination;

(ii) the defraying of costs incurred by any Micro, Small and Medium Size Enterprises


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the manner in which that building, premises or conveyance may be used and may, in that regard, direct the evacuation of that building, premises or conveyance, or prohibit entry into that building, premises or conveyance, for such duration as may be necessary to decontaminate or cause the decontamination of that building, premises or conveyance

affected by the direction to evacuate or prohibition from entry into the building or premises of the operations for the interruption to their business operations during the decontamination exercise; and

(iii) that written notice setting out a reasonable

time for the compliance with the medical officer of health or public health officer’s directions should be provided.

c) Public Health (Prevention, Control and Suppression of Covid-19) Regulations, 2020

Regulation 10(1): Where a person who is confined in a place designated for isolation or for quarantine for COVID-19 escapes from that place, a medical officer shall immediately notify the police and request the police to apprehend and return the person to the designated place. It is indicated that it’s an offence to aid a person in quarantine to escape or to convey

Regulation 10 (3) as drafted does not provide the penalty for the offence of aiding in the escape of a person who is in isolation or quarantine or conveying or causing anything to be conveyed into a place of isolation or quarantine with the intention to facilitate the escape of a person confined in the place as set out under Regulation 10 (2).

We recommend that the Regulation be amended to provide the penalty for this offence.


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anything to such person with the intent to facilitate their escape.

Additional Proposed Amendments

d) Public Health (Prevention, Control and Suppression of Covid-19) Regulations, 2020

N/A We would recommend that this regulation applies to all other infectious diseases as it is unlikely that this will be the last pandemic in history.

We recommend that the regulation be amended to apply to all infectious diseases, not just COVID-19.

e) Public Health (Prevention, Control and Suppression of Covid-19) Regulations, 2020

N/A The regulation is drafted in very general terms especially with regard to actions that a medical officer may take on suspicion that someone may be infected with COVID-19. The regulation provides for example that the medical officer may on request carry out medical examinations on such persons. To prevent abuse of the law, we would recommend that references to reasonable suspicion be clarified i.e. what amounts to reasonable suspicion.

We recommend that references to “reasonable suspicion” be clarified and in this regard, for purposes of the regulation, a person may be reasonably suspected of having COVID-19 depending on either the symptoms he has, if he has been in contact with persons who are confirmed to have COVID-19 or is from a place with a high prevalence of COVID-19.

f) Public Health (Prevention, Control and Suppression of Covid-19)

N/A The regulation does not prescribe for COVID-19 treatment facilities.

We recommend that the regulation be amended to prescribe for designated COVID-19 treatment facilities.


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Regulations, 2020

5.3 Medical Practitioners and Dentists Act



a) Medical Practitioners and Dentists Act

S. 8(4): The registrar of medical services is required to send by registered post, not later than 1st July in each year, a notice inquiring whether or not a registered medical practitioner or dentist has ceased to practice or has changed his address. Medical practitioners are required to respond within 6 months, otherwise their names will be removed from the registrar.

Timelines for compliance. Rationale for proposed amendment Given the likelihood that the offices of the Kenya Medical Practitioners and Dentists Council (the Council) may be closed during this period, it may be difficult for the Registrar of medical services to send out these notices. The extension of the period to the 1st day of the month following the month in which the GOK end of COVID Gazette Notice is to enable the Council put together and post the relevant notices.

We recommend that: i) the requirement for the registrar of medical

services to send notices to medical practitioners and dentists be suspended for the duration of the COVID-19 pandemic and the timelines be extended to the 1st day of the month following the month in which the GoK End of COVID Gazette Notice is published; and

ii) the timelines for the medical practitioners and dentists to respond to such notice be extended to a period of 6 months from the date of the posting of the notice.

b) Medical Practitioners and Dentists Act

S. 14(1) and (2): a medical practitioner or dentist may apply for renewal of the license in the prescribed form at least

Timelines for compliance. Rationale for proposed amendment Given the likelihood that the offices of the Kenya Medical Practitioners and Dentists Council (the

i) We recommend that: the requirement for Medical Practitioners/Dentists to file applications for renewal of their licenses be suspended for the duration of the COVID-19 pandemic and the timelines be extended


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30 days before its expiry, otherwise they shall be liable to pay later application fee at the point of the application for renewal

Council) may be closed during this period, it may be difficult for medical practitioners/dentists to lodge the applications for renewal of their licenses. The extension of the period to within 120 days after the publication of the end of COVID Gazette Notice is to enable medical practitioners/dentists who were unable to lodge such applications for renewal to do so without having to pay any late filing penalties. We have proposed a longer time duration given how hard the doctors will actually be working during the duration of the COVID Pandemic.

to within 120 days from the date the GoK End of COVID Gazette Notice is published;

ii) all the penalties for late filing are waived for the duration of the COVID-19 pandemic in Kenya until the GOK End of COVID Gazette Notice is published; and

iii) the validity of licences issued under the Act

should be extended until 120 days from the date the GoK End of COVID Gazette Notice is published.

5.4 Medical Practitioners and Dentists (Training Assessment and Registration Rules), 2014



a) Medical Practitioners and Dentists (Training Assessment and Registration Rules), 2014

Reg 16: an applicant for registration as a medical practitioner/dentist may appeal to the full board of the Council against a decision of the Registration Committee recommending that they are not registered within 14 days of being informed of the decision.

Timelines for compliance. Rationale for proposed amendment Given the likelihood that the offices of the Kenya Medical Practitioners and Dentists Council (the Council) may be closed during this period, it may be difficult for an applicant to lodge an appeal against a decision of the Registration Committee recommending that they are not registered.

We recommend that the requirement for applicants for registration as Medical Practitioners/Dentists to file appeals against the decision recommending that they should not be registered be suspended for the duration of the COVID-19 pandemic in Kenya and the timelines be extended to within 14 days from the date the GoK End of COVID Gazette Notice is published, in respect of decisions (if any) made during the COVID-19 pandemic.


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The extension of the period to within 14 days after the publication of the end of COVID Gazette Notice is to enable applicants who were unable to lodge such appeals to do so. However, this is in respect of any decisions received during the COVID-19 outbreak in Kenya and the 14 day time limit would continue to apply for any decisions prior to and after this time.

5.5 The Public Health Officers (Training, Registration and Licensing) Act, 2013



a) The Public Health Officers (Training, Registration and Licensing) Act, 2013

S 27: an applicant for registration as a public health officer may appeal to the Cabinet Secretary for Health against a decision of the Public Health Officers and Technicians Council not to register him within 60 days of being notified of the decision.

Timelines for compliance. Rationale for proposed amendment Given the likelihood that most government offices are closed/limited to only essential services and personnel and the fact that movement to Nairobi has now been restricted, it may be difficult for an applicant to lodge an appeal to the Cabinet Secretary against a decision of the Public Health Officers and Technicians Council recommending that they are not registered. The extension of the period to within 60 days after the publication of the end of COVID Gazette Notice is to enable applicants who were unable to lodge such appeals to do so.

We recommend that the requirement for applicants for registration as public health officers to file appeals against the decision recommending that they should not be registered be suspended for the duration of the COVID-19 pandemic in Kenya and the timelines be extended to within 60 days from the GoK End of COVID Gazette Notice is published, in respect of decisions (if any) made during the COVID-19 pandemic.


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However, this is in respect of any decisions received during the COVID-19 outbreak in Kenya and the 60 day time limit would continue to apply for any decisions prior to and after this time.

The Public Health Officers (Training, Registration and Licensing) Act, 2013

S. 33(3): the Public Health Officers and Technicians Council is required to issue a practicing certificate to a public officer or technician that is duly registered and is not suspended from practice within 60 days of receipt of the application.

Timelines for compliance. Rationale for proposed amendment Given the likelihood that most government offices are closed/limited to only essential services and personnel and the fact that movement to Nairobi has now been restricted, it may be difficult both for individuals to lodge applications for practicing certificates and for the Public Health Officers and Technicians Council to process and issue the practicing certificate. The extension of the period to within 120 days after the publication of the end of COVID Gazette Notice is to enable the Public Health Officers and Technicians Council to deal with any backlog in respect of applications for practicing certificates that may have been received during the COVID-19 pandemic. We have proposed a longer time duration given how hard they will actually be working during the duration of the COVID-19 pandemic.

We recommend that the timelines for the Public Health Officers and Technicians Council to issue practicing certificates be extended to within 120 days from the GoK End of COVID Gazette Notice is published, in respect of applications (if any) received for practicing certificates during the COVID-19 pandemic. In addition, the validity of licences issued under the Act should be extended until 60 days from the date the GoK End of COVID Gazette Notice is published. The public officers and technicians will however be required to continue to adhere to all applicable laws.


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5.6 Clinical Officers (Training, Registration and Licensing) (Act No. 20 of 2017, Laws of Kenya)



a) Clinical Officers (Training, Registration and Licensing) (Act No. 20 of 2017, Laws of Kenya)

S. 21(3): the Clinical Officers Council is required to issue a practicing certificate to a clinical officer that is duly registered and is not suspended from practice within 60 days of receipt of the application.

Timelines for compliance. Rationale for proposed amendment Given the likelihood that most government offices are closed/limited to only essential services and personnel and the fact that movement to Nairobi has now been restricted, it may be difficult both for individuals to lodge applications for practicing certificates and for the Clinical Officers Council to process and issue the practicing certificate. The extension of the period to within 120 days after the publication of the end of COVID Gazette Notice is to enable the Clinical Officers Council to deal with any backlog in respect of applications for practicing certificates that may have been received during the COVID-19 pandemic. We have proposed a longer time duration given how hard they will actually be working during the duration of the COVID-19 pandemic.

We recommend that the timelines for the Clinical Officers Council to issue practicing certificates be extended to within 60 days from the GoK End of COVID Gazette Notice is published, in respect of applications (if any) received for practicing certificates during the COVID-19 pandemic. In addition, the validity of licences issued under the Act should be extended until 120 days from the date the GoK End of COVID Gazette Notice is published.


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5.7 Health Records and Information Managers Act (Act No. 15 of 2016, Laws of Kenya)



a) Clinical Officers (Training, Registration and Licensing) (Act No. 20 of 2017, Laws of Kenya)

S. 24(5): where a license issued under the act is not renewed within 30 days of expiry, the name of the holder shall be removed from the register maintained under the act and the Health Records and Information Managers Board may decline further requests for renewal of such a license or impose a prescribed levy on such further requests.

Timelines for compliance. Rationale for proposed amendment Given the likelihood that most government offices are closed/limited to only essential services and personnel and the fact that movement to Nairobi has now been restricted, it may be difficult both for individuals to lodge applications for renewals of licenses and for the Health Records and Information Managers Board to process and renew such licenses. The extension of the period to within 30 days after the publication of the end of COVID Gazette Notice is to enable licensees who were unable to file the applications for renewal of their licenses to do so without having incurring any penalty.

We recommend that the requirement for the licensees to apply for renewal of licenses within 30 days of expiry of such licenses be suspended for the duration of the COVID-19 pandemic in Kenya and the timelines be extended to within 30 days from the date the GoK End of COVID Gazette Notice is published.

5.8 Occupational Safety and Health Act (Act No. 15 of 2007, Laws of Kenya)



a) Occupational Safety and Health Act (Act No. 15 of 2007, Laws of Kenya)

S. 38(3) and 38(4): a person aggrieved by a notice issued by an occupational safety and health officer may appeal to the Director of Occupational Health and Safety within 14 days,

Timelines for compliance. Rationale for proposed amendment Given the likelihood that most government offices are closed/limited to only essential services and personnel and the fact that movement to Nairobi has now been restricted, it may be difficult both for individuals to lodge appeals either to the Director of

We recommend that the requirement for persons to file appeals either with the Director of Occupational Health and Safety or against the decision of the Director within 14 days of the date of the decision be suspended for the duration of the COVID-19 pandemic in Kenya and the timelines be extended to within 14 days


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and a person aggrieved by the decision of the Director of Occupational Health following such appeal may appeal to the appeal committee appointed by the Cabinet Secretary for labour, within 14 days.

Occupational Health or against his decision, within the 14 day requirement. The extension of the period to within 14 days after the publication of the end of COVID Gazette Notice is to enable persons who were unable to file such appeals to do so.

from the date the GoK End of COVID Gazette Notice is published.

b) Occupational Safety and Health Act (Act No. 15 of 2007, Laws of Kenya)

S. 44: a person aggrieved by a notice issued by a decision of the Director of Occupational Health and Safety with regard to registration of work places may appeal to the appeal committee appointed by the Cabinet Secretary for labour, within 14 days.

Timelines for compliance. Rationale for proposed amendment Given the likelihood that most government offices are closed/limited to only essential services and personnel and the fact that movement to Nairobi has now been restricted, it may be difficult for individuals to lodge appeals within the 14 day requirement. The extension of the period to within 14 days after the publication of the end of COVID Gazette Notice is to enable persons who were unable to file such appeals to do so.

We recommend that the requirement for persons to file appeals with the appeal committee appointed by the Cabinet Secretary within 14 days of the date of the decision be suspended for the duration of the COVID-19 pandemic in Kenya and the timelines be extended to within 14 days from the date the GoK End of COVID Gazette Notice is published.


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5.9 Physiotherapists Act No. 20 of 2014, Laws of Kenya



c) Physiotherapists Act No. 20 of 2014, Laws of Kenya

S. 25: the Physiotherapy Council is required to issue a practising certificate within 60 days of receipt of an application for a practicing certificate.

Timelines Rationale for proposed amendments: Given the likelihood that most government offices are closed/limited to only essential services and personnel and the fact that movement to Nairobi has now been restricted, it may be difficult both for individuals to lodge applications for practicing certificates and for the Physiotherapy Council to process such applications. The extension of the period to within 120 days after the publication of the end of COVID Gazette Notice is to enable persons who were unable to file such applications to do so. We have proposed a longer time duration given how hard they will actually be working during the duration of the COVID-19 pandemic.

We recommend that the timelines for the Physiotherapy Council to issue practicing certificates be extended to within 120 days from the date the GoK End of COVID Gazette Notice is published. In addition, the validity of licences issued under the Act should be extended until 120 days from the date the GoK End of COVID Gazette Notice is published.

d) Physiotherapists Act No. 20 of 2014, Laws of Kenya

S.27: a physiotherapist who fails to renew his practising certificate within the prescribed period shall be required to pay such late application fee as shall be prescribed.

Timelines and consequential penalties Rationale for proposed amendments: Given the likelihood that most government offices are closed/limited to only essential services and personnel and the fact that movement to Nairobi has now been restricted, it may be difficult both for individuals to lodge applications for practicing certificates and for the Physiotherapy Council to process such applications.

We recommend that (i) the time limit for the renewal of a practising

certificate be suspended for the duration of the COVID-19 pandemic and the timelines be extended to within 30 days from the date the GoK End of COVID Gazette Notice is published;

(ii) the validity of licences issued under the Act should be extended until 30 days from the


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The extension of the period to within 60 days after the publication of the end of COVID Gazette Notice is to enable persons who were unable to file such applications to do so.

date the GoK End of COVID Gazette Notice is published; and

(iii) all the penalties for late applications are

waived for the duration of the COVID-19 pandemic in Kenya until the GOK End of COVID Gazette Notice is published.

5.10 Nurses Act, Cap 257 Laws of Kenya



Nurses Act, Cap 257, Laws of Kenya

S. 17(5): Renewal of licences should be made within 30 days of expiry; otherwise the name of the licence holder is removed from the appropriate record and the Nursing Council of Kenya may decline further requests for renewal of such a licence or impose a levy on such further requests.

Time lines, deregistration and penalty Rationale for proposed amendment Given the likelihood that most government offices are closed/limited to only essential services and personnel and the fact that movement to Nairobi has now been restricted, it may be difficult both for individuals to lodge applications for the private practice license and for the Nursing Council of Kenya to process such applications. The extension of the period to within 120 days after the publication of the end of COVID Gazette Notice is to enable persons who were unable to file such applications to do so. We have proposed a longer time duration given how hard they will actually be working during the duration of the COVID-19 pandemic.

We recommend that: (i) the time limit for the renewal of a

practising certificate by the Nurses Council be extended to within 120 days from the date the GoK End of COVID Gazette Notice is published;

(ii) the validity of licences issued under the Act should be extended until 30 days from the date the GoK End of COVID Gazette Notice is published; and

(iii) all the penalties for late applications are



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5.11 Human Tissues Act Chapter 252, Laws of Kenya



(a) Human Tissues Act CAP 252, Laws of Kenya

S2(1): if any person has expressed a request that his body or any specified part of his body be used after his death for therapeutic purposes or for purposes of medical education or research, the person lawfully in possession of his body after his death may, unless he has reason to believe that the request was subsequently withdrawn, authorize the removal from the body of any part or, as the case may be, the specified part, for use in accordance with the request.

Deceased’s last wishes. Rationale for proposed amendment The government directive currently is that persons who have passed on as a result of COVID-19 are buried/cremated within 24 to 48 hours of death. In the circumstances, any last wishes by the deceased to have his body/part thereof be used for therapeutic purposes or for purposes of medical education or research cannot be fulfilled.

We recommend that this section be suspended in respect of any person who passes on as a result of COVID-19.


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5.12 Medical Laboratory Technicians And Technologists Act No. 10 of 1999, Laws of Kenya



Medical Laboratory Technicians And Technologists Act No. 10 of 1999, Laws of Kenya

S38 (3): a person whose name is removed from the register under section 32, or in the case of a deceased person, his legal representative, shall, within 30 days of the publication of such removal, surrender the certificate of registration of that person to the Board.

Surrender of certificate of registration Rationale for proposed amendment The surrender of the certificate of registration is required when one is struck off the register or upon death. As the Government has limited movement and has placed a current ban on the movement in and out of Nairobi, the 30 day timeline may be difficult to meet.

We recommend that: i) the requirement to surrender the

certificate of registration be suspended for the duration of the COVID-19 pandemic in Kenya and the timelines for surrendering the certificate of registration be increased to 30 days after the date on which the GoK End of COVID Gazette Notice is published; and


failure to surrender the certificate of registration are waived for the duration of the COVID-19 pandemic until the GOK End of COVID Gazette Notice is published.

Schedule 1 S3(1) The Board shall meet not less than four times in every financial year and not more than 4 months shall elapse between the date of one meeting and the date of the next meeting.

Attendance of Meetings Rationale for proposed amendment As movement within Nairobi and in and out of the Nairobi County has been limited, this may as a result affect how business is conducted and how meetings are held.

We recommend that the Medical Laboratory Technicians and Technologists Act should provide for meetings to be held and attended electronically.


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5.13 Medical Laboratory Technicians and Technologists (Election) Regulations, 2015



a) Medical Laboratory Technicians And Technologists (Election) Regulations, 2015

Reg 3(1): the Board shall, within 2 months upon a vacancy arising in the Board or at least 4 months before the date on which elected members cease to hold office, appoint a person to be the returning officer for the purpose of election of members under section 6 (1) (f) and (g) of the Medical Laboratory Technicians And Technologists Act. The regulations go on to provide the procedures for holding the elections.

Elections Rationale for proposed amendments Holding fair and transparent elections during the COVID-19 outbreak in Kenya may be difficult as the persons required to ensure that the elections are carried out fairly may not have the ability to ensure so. Moreover the physical attendance of the board of directors will be required and this will be difficult due to the restricted movement in Kenya.

We recommend that: (i) the requirement to have elections upon

vacancy be suspended for the duration of the COVID-19 pandemic in Kenya and the timelines for electing a member be increased from 2 months to 4 months; and

(ii) the Board to be given the power to appoint

an acting board member by majority vote, who shall sit on the board for the duration of the COVID-19 pandemic in Kenya.

5.14 Mental Health Act, Cap 248, Laws of Kenya



a) Mental Health Act, Cap 248, Laws of Kenya

S. 41: Notwithstanding anything in the Act, a person in charge of a mental hospital may refuse to receive any person into the hospital if

Refusal to accommodate mental health patients due to COVID-19 symptoms Rationale for proposed amendments With respect to mental health patients who are showing symptoms of COVID-19, it would be more appropriate to either place them in isolation or if the

We recommend that for the duration of the COVID-19 pandemic in Kenya, this section be amended to allow a person in charge of a mental hospital to either quarantine or refer to another facility a mental health patient showing symptoms of COVID-19.


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there is insufficient or unsuitable accommodation available therein.

facility does not have sufficient or suitable accommodation, refer them to another facility, instead of simply refusing to receive them.

5.15 Mental Health Act (Board Meetings) Regulations, 2000



a) Mental Health Act, Cap 248, Laws of Kenya

S4(1)- The Kenya Board of Mental Health shall meet not less than four times in every financial year and not more than four months shall elapse between the date of one meeting and the date of the next meeting.

Attendance of Meetings. Rationale for proposed amendment As movement within the Nairobi and in and out of the Nairobi County has been limited, physical attendance at such meetings by the members of the Kenya Board of Mental Health.

We recommend that this section of the act is amended to allow for meetings to be attended virtually by electronic means.

5.16 Public Order Act Cap 56 Laws of Kenya



(a) Public Order Act, Cap 56 Laws of Kenya

S.13(1): Any person who claims to have suffered loss, damage or injury, by reason of the inhabitants of an area that is under a

Timelines. Rationale for proposed amendment The courts have been closed and are not accessible for the duration of the pandemic. There is an existing

We recommend that the statutory timelines for filing a claim under this act be suspended for the duration of the COVID-19 pandemic in Kenya and the timelines be extended to within 1 month


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declaration order under section 106 of the National Police Service Act, should make an application for compensation to a magistrate within 1 month from the date of such loss, damage or injury.

online filing process which may not be extensively known or understood by the common Mwananchi who may not be tech savvy. This means that many people with claims under this section may file once courts resume normal operations, in which time most of the claims will have become time barred. To promote access to justice for anyone who may be a victim of the issues covered by the section, suspension of the time limit may be prudent.

from the date the GOK End of COVID Gazette Notice is published.


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6 INSURANCE LAWS

6.1 Insurance Act, Cap 487, Laws of Kenya



a) Insurance Act, Cap 487, Laws of Kenya

S. 62: the Commissioner of Insurance may require an insurer to submit information within a period specified in the notice, not being less than 10 days, failure to which, the Commissioner may decline to accept the document in respect of which the further information is sought, and such document shall be deemed to not have been submitted.

Timelines for compliance. Rationale for proposed amendment It is likely that most insurers have staff working from home or only a handful of staff that are working from the office while the submission to the Commissioner may involve collation of documents from several persons/departments etc. It is therefore likely that insurers may not be able to comply with this requirement. The extension of the period to within 14 days after the publication of the End of COVID Gazette Notice is to enable insurers who are unable to respond to the Commissioner to do so without being deemed as having not submitted the required information. This would however only apply to any information requests made to insurers during the COVID-19pandemic.

We recommend that the requirement for insurers to submit information within the time period specified by the Commissioner of Insurance be suspended for the duration of the COVID-19 pandemic in Kenya and the timelines be extended to within 14 days from the date the GoK End of COVID Gazette Notice is published.

b) Insurance Act, Cap 487, Laws of Kenya

S.172: a person summoned to attend and give evidence, to produce any document or answer any interrogatories by the Insurance Tribunal commits an offence if they fail to do so and on

Timelines for compliance. Rationale for proposed amendment In the event there are persons summoned by the Insurance Tribunal, it is likely that they may not be able to attend especially if they are not within Nairobi.

We recommend that: i) the requirement for persons to attend and

give evidence to the Insurance Tribunal be suspended for the duration of the COVID-19 pandemic in Kenya and new timelines be provided by the Insurance Tribunal once the GoK End of COVID Gazette Notice is published; and


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conviction will be liable to a fine not exceeding KES 2,000

The extension of the period to such time as may be directed by the Insurance Tribunal following the publication of the end of COVID Gazette Notice is to enable such persons to attend and give evidence, if summoned by the Insurance Tribunal.

ii) all the penalties for late applications are


c) Insurance Act, Cap 487, Laws of Kenya

S. 173: a person aggrieved by the decision of the Commissioner of Insurance may within 1 month from the date of the decision, appeal to the Insurance Tribunal

Timelines for compliance. Rationale for proposed amendment Given the likelihood that the offices of the Insurance Tribunal may be closed during this period or the fact that a person may not be able to travel to Nairobi to file such an appeal, it may be difficult for an applicant to lodge an appeal against a decision of the Commissioner of Insurance within the prescribed timelines. The extension of the period to within 30 days after the publication of the end of COVID Gazette Notice is to enable applicants who were unable to lodge such appeals to do so. However, this is in respect of any decisions made by the Commissioner of Insurance during the COVID-19 outbreak in Kenya or in respect of which the timelines for appeal had not run out by the time of the COVID-19 outbreak in Kenya, and the 30 day time limit would continue to apply for any other decisions.

We recommend that the requirement for an aggrieved person to file an appeal against a decision of the Commissioner of Insurance within 30 days of the decision, be suspended for the duration of the COVID-19 pandemic in Kenya and the timelines be extended to within 30 days after the GoK End of COVID Gazette Notice is published, in respect of decisions (if any) made during the COVID-19 pandemic, or whose timelines for appeal had not run out by the time COVID-19 was declared a national epidemic.

d) Insurance Act, Cap 487, Laws of Kenya

S.197B: insurers are required to pay the insurance training levy on a monthly basis and to

Timelines for compliance Rationale for proposed amendment

We recommend that: i) instead of submitting hard copies of the

monthly returns, insurers are allowed to submit electronic copies .


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submit to the Insurance Regulatory Authority a monthly return showing the total levy due to the insurer from the policy holders for a particular month. Where any amount of this levy remains unpaid, a penalty of 5% of the unpaid levy or part thereof will be due and payable by the insurer.

It is likely that most insurers have staff working from home or only a handful of staff that are working from the office and therefore the preparation of the monthly returns may prove a challenge. The extension of the period to within 30 days after the publication of the End of COVID Gazette Notice is to enable insurers who were unable to file returns to do so without incurring the penalty.

ii)

6.2 Insurance Regulations, 1986



a) Insurance Regulations, 1986

Reg 56: insurers carrying on general business shall at the end of each calendar year and not later than the third month following that year, prepare an annual insurance training levy return.

Timelines for compliance. Rationale for proposed amendment It is likely that most insurers have staff working from home or only a handful of staff that are working from the office and therefore the preparation of the annual returns may prove a challenge, especially for insurers whose financial year ends on December 31. The extension of the period to within 30 days after the publication of the end of COVID Gazette Notice is

We recommend that instead of submitting hard copies of the annual returns, insurers are allowed to submit electronic copies.


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to enable insurers who are unable to file the annual returns to do so without incurring the penalty.

6.3 Insurance (Motor Vehicles Third Party Risks) Act Chapter 405



b) Insurance (Motor Vehicles Third Party Risks) Act Chapter 405

S. 9: (2): a requirement to produce a certificate of insurance within 24 hours of the occurrence of an accident. A requirement for motor vehicle owners to give information to the police within 7 days of receiving an oral or written request. Failure to comply with these requirements is an offence and is liable to a fine not exceeding five hundred thousand shillings or to imprisonment for a term not exceeding one year or to both.

Timelines, penalty and imprisonment Rationale for proposed amendment The statutory requirement to provide further information on motor vehicle insurance may be delayed by the current state of lockdowns (cross county movement of information and documents). Where a person doesn’t provide information within the set time limits, they will be deemed to have committed an offence pursuant to the provisions of the Act. Additionally, it is possible that a person may have applied for renewal of their insurance, but due to the lockdown they are not able to obtain the physical insurance documents within the set time limits.

We recommend that the time limits imposed under this section be extended for the duration of time that COVID-19 is declared a national epidemic as follows:

a) in respect of the requirement to produce a certificate of insurance, from 24 hours to 7 days of the occurrence of an accident;

b) in respect of the requirement to give information to the police, from 7 days to 14 days of receiving an oral or written request; and

c) persons be also allowed to provide information through electronic means.


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7 EMPLOYMENT AND IMMIGRATION

7.1 Employment Act, 2007



a) Employment Act, Act No 11 of 2007 (the Employment Act)

S. 10(5): Employers are required to consult with their employees before effecting any changes to the employees’ terms and conditions of employment and to notify the employees of the changes in writing. The provisions of the Employment Act refer to consultation but are silent on whether the consent of the employees is required before the decision can be undertaken. Case law does however provide that the employees’ consent is required before the changes are effected.

Requirement for consultation with employees and obtaining consent before effecting changes to employment terms and penalties for non-compliance. Rationale for proposed amendment The COVID-19 outbreak in Kenya has forced a number of employers in Kenya to reduce the working hours, salaries and benefits paid to their employees in light of the financial difficulties that businesses are facing. Having consultations with the employees in this respect and obtaining their consent before effecting the changes is not practical in this situation especially given that the law is silent on what should happen should the employees refuse to consent to the proposed changes. Further, obtaining consent does not prevent employees suing employers after the pandemic is over on the grounds that they had no choice but to consent and such litigation will further damage business confidence and the creation of jobs.

We recommend that: i) the requirement to have

consultations with the employees and seek their consent be suspended for the duration of the COVID-19 pandemic in Kenya. This should be subject to the employer having to prove that they are facing significant financial difficulty and need to make the changes as opposed to deciding that they have no choice but terminate the employees for the duration of the COVID-19 pandemic in Kenya; and

ii) all the penalties and other

liabilities for non-compliance are waived for the duration of the COVID-19 pandemic until the GOK End of COVID Gazette Notice is published.

b) The Employment Act

The Employment Act is silent on whether employers can send employees on unpaid leave.

Lack of provisions on sending employees on unpaid leave. Rationale for proposed amendment The COVID-19 outbreak in Kenya has forced a majority of employers in Kenya to require their employees to

We recommend that the law be amended to allow employers who are able to demonstrate that they have no other alternative but to send their employees on unpaid leave (for a specific period) after any accrued leave


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proceed on unpaid leave particularly in situations where the employees cannot work from home/remotely or in industries where employers have had to shut down or have been forced to significantly reduce their operations due to COVID-19 (for example in the travel and tourism industry, aviation industry, horticultural industry, restaurant and entertainment business, transport industry, hospitality industry etc.).

has been exhausted for the duration of the COVID-19 pandemic in Kenya.

c) The Employment Act The Regulation Of Wages (General) Order (the General Wages Order)

S. 30 (1): after two (2) consecutive months of service, an employee shall be entitled to sick leave of not less than seven (7) days with full pay and thereafter to sick leave of seven (7) days with half pay, in each period of twelve (12) consecutive months of service. Regulation 12 General Wages Order: provides that employees are entitled to thirty (30) days sick leave with full pay and thereafter a maximum of fifteen (15) days sick leave with half pay.

Additional sick leave periods to be provided to cover quarantine periods. Rational for proposed amendment The COVID-19 outbreak in Kenya requires employees who have been exposed to the virus or travelled to risk areas to self-quarantine for a period of fourteen (14) days. In the context of the current pandemic, the rules for paying sick pay remain the same as provided under the Employment Act and the General Wages Order and the employment contracts of the employees. The Employment Act is silent on how the quarantine period should be treated and currently, in the event that an employee is required to be under quarantine, the quarantine period is being deducted from an employee’s sick leave. Where the sick leave period is exhausted, the period where an employee is unable to work id deducted from their annual leave.

We recommend that the law be amended to provide that where an employee is required to be in quarantine, the quarantine period shall be considered an additional sick leave period for the duration of the COVID-19 pandemic in Kenya. If the employee is found to be infected with COVID -19, the sick leave provisions under their employment contract should apply to any period during which they are unable to work because of their infection and isolation or hospitalization.

d) The Employment Act

S. 28 (2): an employer may, with the consent of the employee, divide the minimum annual leave entitlement (being twenty one

Requirement to obtain employee consent before asking the employees to proceed on annual leave.

We recommend that the requirement to have consultations with the employees and seek their consent be suspended for the duration of the


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(21) days) into different parts to be taken at different intervals.

Rationale for proposed amendment In light of the COVID-19 outbreak in Kenya, a number of employers have been forced to ask their employees to proceed on annual leave as the pandemic has required a number of businesses to either shut down or significantly reduce their business operations. The requirement to obtain the employee’s consent before asking them to proceed on annual leave during this period is not therefore practical and further, the law is silent on what happens should the employees refuse to proceed on annual leave.

COVID-19 pandemic in Kenya. This should be subject to the employer having to prove that they are unable to continue with their normal business operations and therefore require the employees to proceed on annual leave.

e) The Employment Act

The Employment Act is silent on the treatment of part time employees and the rights and benefits that they are entitled to. As currently drafted, part time employees are entitled to all rights and benefits that full time employees are entitled to.

Requirement for amendment of the Employment Act to provide for calculation of benefits payable to part time employees on a pro rata basis. Rationale for proposed amendment The COVID-19 outbreak in Kenya has forced a number of employers in Kenya to reduce the working hours, salaries and benefits paid to their employees in light of the financial difficulties that businesses are facing. Some of the employers have been forced to put their employees on part time contracts which require them to work for a specific number of hours or days per week. As currently drafted, the Employment Act provides that employees, regardless of whether they are full time or part time, are entitled to the same minimum benefits e.g. 21 leave days, overtime, sick leave, maternity/ paternity leave etc. Employees employed on a part time basis may therefore claim entitlement to these benefits even though they do not

We recommend that: The law is amended to provide that employees who are employed on a part time basis will be entitled to the benefits set out under the Employment Act which will be calculated on a pro rata basis.


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work on a full time basis. This is not financially viable for employers.

f) The Employment Act

S. 40: an employer is required to follow the below steps when terminating a contract on account of redundancy: - where the employees are unionised, provide the union with at least one (1)months’ notice of the proposed redundancy - where an employee is not unionised, notify the employee personally in writing (the notice period should be at least one (1) month). In addition, to the above, case law provides that the employer is required to have a consultation period of at least one (1) month with the employees. An employer is required to pay to the employees declared redundant the following (at a minimum) on the termination date: pay for all accrued but untaken leave; provide the employees with not less than one month’s notice or one month’s wages in lieu of notice; severance pay at the rate of not less than fifteen (15) days’ pay for each

The requirement for an employer to consult with employees, and trade unions (where one is recognised) before effecting redundancies may not be practical or feasible in a pandemic situation. Rationale for the proposed amendment

1. Under the Employment Act, a position is declared redundant where the position no longer exists through no fault of the employee. In practice, an employer cannot rehire for a position that has been declared redundant for a one (1) year period following the effective date of the redundancy.

2. Before effecting redundancies, the requirement for an employer to consult with employees, and trade unions (where one is recognised) may not be practical or feasible. This notice period should be waived or shortened.

3. The requirement for employers to pay redundancy dues in one go on the termination date should be reconsidered given that during this time, employers are facing financial difficulties.

We recommend that for the duration of the COVID-19 pandemic:

i) the requirement for the consultation period is shortened to a period of twenty one (21) days;

ii) employers should be allowed to pay

redundancy dues in two (2) or three (3) instalments depending on their financial position; and

iii) employers should be allowed to re-

employ people to fill in roles declared redundant during emergency situations if things return to normal earlier than twelve (12) months.


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completed year of service; any other payments in line with past practice.

7.2 The National Hospital Insurance Fund Act, 1998 (NHIF Act)



a) The NHIF Act

S. 15 (2) (a): requires that a person liable as a contributor under this section shall pay to the NHIF Board, in the case of a person whose income is derived from salaried employment, a standard contribution. S. 16: further provides that a person liable to pay a standard contribution under section 15 shall pay such contribution through monthly deductions from his salary or other remuneration.

Requirement for contributions and penalties for non-compliance Rationale for proposed amendment Many employers have been forced to send their employees on unpaid leave in light of the COVID-19 outbreak in Kenya. This means that for the duration of the unpaid leave, the employees will not earn a salary.

We recommend that the requirement for the employer to deduct and remit the statutory contributions to the NHIF should be suspended during any periods of unpaid leave.


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7.3 The National Social Security Fund Act, 2013 (NSSF Act)



a) The NSSF Act

S. 20: Contributions to National Social Security Fund (NSSF) are required to be made by both the employer and the employee. Employers are required to contribute an equivalent amount which should not be paid out of an employee’s salary. The employee’s deduction is made from the employee’s salary.

Requirement for contributions and penalties for non-compliance Rationale for proposed amendment Many employers have been forced to send their employees on unpaid leave in light of the COVID-19 outbreak in Kenya. This means that for the duration of the unpaid leave, the employees will not earn a salary. The NSSF Act is silent on the procedure to be followed where an employee does not earn a salary in a specific month.

We recommend that the requirement for the employer to deduct and remit the statutory contributions to the NSSF be suspended during any periods of unpaid leave.

7.4 Industrial Training Act, Chapter 237 Laws of Kenya



a) Industrial Training Act, Chapter 237 Laws of Kenya

S.5B: the Minister may make a training levy order for the purpose of giving effect to proposals submitted by the Council and approved by him, and the order may provide for the amendment of a previous training levy order.

Consequential penalties for non-compliance Rationale for proposed amendment The COVID-19 outbreak in Kenya has forced many employers to require their employees to either work remotely or proceed on annual leave.

We recommend that: i) the requirement and the timelines for

remitting the levy be suspended for the duration of the COVID-19 pandemic in Kenya; and

ii) all the penalties and other liabilities for non-compliance are waived for the duration of the COVID-19 pandemic until


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If any person fails to pay an amount payable by him by way of the training levy within the time prescribed by the training levy order a sum equal to five per cent (5%) of that amount shall be added to the amount for each month or part of a month thereafter that the amount due remains unpaid. A person who fails to comply with any provision of a training levy order shall be guilty of an offence.

the GOK End of COVID Gazette Notice is published.

7.5 Industrial Training (Training Levy) Order, 2007



a) Industrial Training (Training Levy) Order, 2007 (the Principal Order)

S.4 (1): the Industrial Training (Training Levy) (Amendment) Order, 2020 amended Paragraph 4 of the Principal Order by deleting and substituting with a new paragraph which provides that at the

Remittance by employers of levies for each employee and the consequential penalties for non-compliance. Rationale for proposed amendment The COVID-19 outbreak in Kenya has forced many employers in Kenya to require their employees to either work remotely or proceed on annual leave.

We recommend that the requirement and the timelines for remitting the levy be suspended for the duration of the COVID-19 pandemic in Kenya.


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end of each financial year, an employer shall remit to the Director General of the National Training Authority a levy of KES 600 per employee per year or pro rata for their term of service.

7.6 Kenya Citizenship and Immigration Act, 2011



a) The Immigration Act

S. 24(1): The period of validity of a permit shall be determined by the Director and may be renewed for further periods on the payment of the renewal fee specified in the Ninth Schedule

Permits and Passes have to be approved and endorsed on the applicant’s passport as proof of validity of the permit

We recommend that: i) For permits and pass renewals, once an

application is submitted and received online, the notification from the Director reading “received” should also have a statement advising the applicant to continue working as though the renewal has been granted and is valid until the committee resumes operations and travel restrictions are lifted. This will cushion the applicants’ whose permits and passes may expire during this period and have no way of leaving the country or having their status extended.


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This arrangement should also be extended to the Dependent passes & Re -entry Passes where applicable.

b) Kenya Citizenship and Immigration Act, 2011 (the Immigration Act)

S. 26 (4): an applicant shall pay the fees specified in the Ninth Schedule before the issue of any of the passes referred to in paragraph (1).

Currently the original Permit/Pass can only be issued after payment of relevant fees and only then can the status be endorsed on the applicant’s passport. Rationale for proposed amendment To assist an applicant whose status has expired within the COVID-19 pandemic period where such applicant does not have an endorsement in their passport.

We recommend that: i) after approval and subsequent payment of

the government fees online, the applicant should be deemed to have the legal status to work in the country even without having the passport endorsed with the pass;

ii) the applicant can carry with them the notice of approval as well as the payment receipt as proof of legal status; and

iii) all endorsements would thereafter be attended to post the COVID -19 pandemic.

c) The Immigration Act

S. 34(1) & (2): provides that a person who is not a citizen of Kenya shall not remain in Kenya unless he/ she has a valid permit or pass and the presence of such person in Kenya without a valid work permit, residence permit of pass will be unlawful.

Expiry of permits or passes and the consequential penalties for non-compliance. Rationale for proposed amendment As a result of the COVID-19 pandemic, Kenya has suspended all international flights effective 25 March 2020. There may be foreign nationals who were in Kenya before the travel restrictions were effected and are now unable to return to their various countries for the duration of the suspension period.

We recommend that: i) the strict application of the provisions of

the law which provide that foreign nationals who are in the country without valid passes or permits are in violation of the law be suspended for the duration of the COVID-19 pandemic in Kenya to allow the foreign nationals who were already in the country with valid permits or passes which may have now expired or which are to be renewed, to remain in the country until a reasonable


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period after the travel restrictions are lifted; and

ii) all the penalties and other liabilities for non-compliance are waived for the duration of the COVID-19 pandemic.

d) The Immigration Act

S.40 (1): The Director may, in lieu of requiring a deposit under regulation 38, permit the applicant for a permit or pass or some other person on his behalf, to enter into a bond to provide security, with or without sureties, in a sum as shall be prescribed in the Ninth Schedule in respect of each permit or pass.

The authority requires original security Bond documents to be presented. The accounting department also requires that MPESA messages be submitted as proof of payment.

We recommend that: i) the Immigration Department considers

accepting copies of the security bonds together with an email from the issuing bank/insurance company as opposed to originals during the pandemic, with a condition that the original security bonds will be submitted after the restrictions are lifted; and

ii) the accounting department to actively

monitor the payments for expeditious release of receipts online without the MPESA text messages.

This will allow for the approval process of an application to progress despite the circumstances.


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e) The Immigration Act

S. 40 (2): an application for a permit shall be made to the Director in the prescribed manner. There is a requirement for presentation of a physical pack of the application documents at Nyayo House.

Applications for permits. Rationale for proposed amendment With the restricted movement in Nairobi, applicants may not be able to submit the physical application documents to Nyayo House. Online submission of applications will allow for applications to be lodged.

We recommend that the Immigration Department allows for online submission of all the application documents through the Republic of Kenya Electronic Foreign Nationals Service (EFNS) Portal.

f) The Immigration Act

S. 41: provides inter alia that where a work permit has been issued and the person fails, without the written approval of the Director, to engage within 90 days of the date of issue of the permit or of that person’s entry into Kenya, whichever is the earlier, in the employment, occupation, trade, business or profession in respect of which the permit was issued or take up residence the permit shall cease to be valid and the presence of that person in Kenya shall be unlawful.

Invalidation of work permit where the permit is issued and the person fails to take up the employment within 90 days. Rationale for proposed amendment Given that there are several businesses that have either been forced to significantly reduce their operations or shut down their operations, there may be employees who were issued with work permits before the COVID-19 outbreak in Kenya but had to either return to their home countries before the travel restrictions came into effect or have been unable to start their employment duties.

We recommend that: i) the requirement that where a person

issued with a work permit fails to or is unable to engage in the employment or occupation in respect of which the permit was issued be automatically extended for a period equivalent to the duration of the COVID-19 pandemic in Kenya; and

ii) all the penalties and other liabilities for non-compliance are waived for the duration of the COVID-19 pandemic.

g) ii)


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h) The Kenya Citizenship and Immigration Regulations, 2012 (the Immigration Regulations)

Regulation 20 (3): a residence or work permit issued in respect of a person who is not present in Kenya, at the time of issue, shall cease to be valid if such person fails to enter Kenya within 90 days from the date of issue

Invalidation of work permit where the permit is issued and the holder fails to enter Kenya within 90 days from the date of issue. Rationale for proposed amendment Given the travel restrictions that have been imposed around the world, there may be instances where a work permit was issued to a person who is outside Kenya and is unable to travel into the country.

We recommend that all work permits to be automatically extended by a period equivalent to the duration of the COVID-19 pandemic in Kenya.

i) The Immigration Regulations

Regulation 30 (6): A student’s pass shall be deemed to have expired and shall be invalid where a holder of the pass fails to enter Kenya, within a period of 30 days from the date of issue of the pass or fails within a period of 30 days from the date of entry into Kenya, to take up admission as a student at the educational or training establishment in respect of which the pass was issued.

Invalidation of student pass where the pass is issued and the holder fails to enter Kenya within 30 days from the date of issue. Rationale for proposed amendment Given the travel restrictions that have been imposed around the world, there may be instances where a student pass was issued to a person before all travel into Kenya was suspended and such person is now unable to travel into the country. In addition, the Government directed that schools and other educational establishments close for the duration of the COVID-19 outbreak in Kenya.

We recommend that all student passes that were issued be automatically extended to cover the period of the school closure and to also cover the period when the schools re-open after the extended closure to allow students to finish their entire school cycle without having to apply for extensions of the student passes.


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j) The Immigration Regulations

Regulation 34: a person may be issued with a special pass for a period that does not exceed 6 months where they are (amongst others) applying for a permit or pass.

Validity of special pass. Rationale for proposed amendment There may be people who travelled into Kenya and are currently on special passes as they await their work permit applications to be processed. There may also be other people whose special passes have expired but they are now unable to leave the country due to the travel restrictions. However, because most businesses have either closed or significantly reduced their operations, and because of the travel restrictions that have been imposed around the world, such people may be unable to take up the employment at the current time or may be unable to leave the country despite the fact that their permits have expired.

We recommend that the special pass validity period be automatically extended from 6 months to the date on which the GoK End of COVID Gazette Notice is published for people who are currently in the country and whose special passes expired after the travel restrictions were imposed for the duration of the COVID-19 pandemic in Kenya.

7.7 Employment Act Chapter 226 of 2017 & Employment and Labour Relations Court (Procedure) Rules, 2016



a) Employment Act Chapter 226 of 2017

S.90: a party is required to bring a civil action arising out of the Employment Act within 3 years after the cause of action arose. Any case involving neglect, continuing injury or damage is to be brought within 12 months

Timelines for filing of pleadings. Rationale for proposed amendment There is restricted access to court registries (or the registries have been largely closed and are not open for normal business) since the start of the COVID-19 outbreak in Kenya which has made it difficult or impossible for parties to file their pleadings through the manual process.

We recommend that in the event that the limitation period for filing a civil action or a negligence or continuing injury claims arising out of employment is set to lapse during the duration of the COVID-19 pandemic in Kenya (that is starting from the date that the Chief Justice issued directives scaling down court activities), the limitation period be extended for a period of 90 days after the date on which the GoK End of COVID Gazette Notice is published.


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from the cessation of the act.

The Electronic Case Management Practice Directions, 2020, introduced electronic filing and electronic service of pleadings but the programme is still being rolled out and parties continue to face practical difficulties with the online filing. On 1 April, 2020 the Chief Justice issued directions suspending all court proceedings apart from urgent and essential matters. Therefore parties may not be able to file matters which do not fall under this category. An extension of time will also save judicial time and other resources, ensure expeditious disposal of matters and save costs on litigation by avoiding numerous applications being filed in court for extension of time, when we expect the courts to be very busy post Covid- 19.

b) Employment and Labour Relations Court (Procedure) Rules, 2016

Rule 11 (3): the summons shall be valid for a period of 6 months from the date of its issue. The Court is empowered to extend the validity from time to time if satisfied that it is just to do so.

Timelines for filing and service of pleadings Rationale for proposed amendment The government has issued directive for Kenyans to stay at home and set a dusk to dawn state curfew (7 p.m. to 5.a.m) in the Country. On 6th April, 2020, the President restricted the movement of Kenyans in and out of Nairobi, Mombasa, Kwale and Kilifi counties. Parties are therefore unable to effectively physically serve summons on the respondents within the

We recommend that: i) the validity period for summons issued during

the period of the COVID-19 Pandemic in Kenya be extended for a period of 90 days after the date on which the GoK End of COVID Gazette Notice is published; or in the alternative

ii) the Employment and Labour Relations Court ( Procedure) Rules, 2016 be amended to allow service of summons by way of email to the defendant’s last confirmed and used e-mail


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statutory time period, due to the restricted movements especially on the restricted parts of the country. The Civil Procedure (Amendment) Rules, 2020 has made it permissible to effect service of summons by way of email to the defendant’s last confirmed and used e-mail address or by mobile-enabled messaging applications to the defendant’s last known and used telephone number. However, it might be difficult for parties in remote areas or those who are unable to work from home to effect service electronically. The Industrial court rules have not made it permissible to effect service of summons by way of email.

address or by mobile-enabled messaging applications to the defendant’s last known and used telephone number.

c) Employment and Labour Relations Court (Procedure) Rules, 2016

Rule 16 (1): the Court is empowered to dismiss a suit if there is no valid reason why no action has been taken on a suit within one year.

Court empowered to dismiss a suit. Rationale for proposed amendment There is restricted access to court registries (or the registries have been largely closed and are not open for normal business) since the start of the COVID-19 outbreak in Kenya which has made it difficult or impossible for parties to file their pleadings through the manual process. There also practical challenges with the electronic filing and only urgent and time bound matters are accepted for filing. On 1 April, 2020 the Chief Justice issued directions suspending all court proceedings

We recommend that the time period upon which the Court can dismiss a suit for the reasons set out in Rule 16(1) be suspended during the period of the COVID-19 Pandemic in Kenya (that is starting from the date that the Chief Justice issued directives scaling down court activities) to the date on which the GoK End of COVID Gazette Notice is published.


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apart from urgent and essential matters, and therefore parties may not be able to take directions to progress their matters in the normal way.

d) Employment and Labour Relations Court (Procedure) Rules, 2016

Regulation 42 (7): unless a judicial review action is commenced within 30 days the decision of the Procurement Board shall be final.

Judicial review timeline. Rationale for proposed amendment There is restricted access to court registries (or the registries have been largely closed and are not open for normal business) since the start of the COVID-19 outbreak in Kenya which has made it difficult or impossible for parties to file their pleadings through the manual process. There also practical challenges with the electronic filing and only urgent and time bound matters are accepted for filing. On 1 April, 2020 the Chief Justice issued directions suspending all court proceedings apart from urgent and essential matters, and therefore parties many not be able to file matters that are not considered urgent or essential.

We recommend that the requirement to lodge a judicial review case within 30 days from the date when the decision of the Procurement Board is issued be suspended during the existence of the COVID-19 Pandemic in Kenya and the timelines to do so be extended for 30 days from the date when the GoK End of COVID Gazette Notice is published.


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8 INSOLVENCY

8.1 The Insolvency Act 2015 and the Insolvency Regulations 2016

We would propose that the amendments to be made to the Insolvency laws be for a specific timeline with the possibility of being extended if the circumstances

persist. We would recommend that the amendments be in force for a period of 24 months from commencement of the COVID-19 outbreak in Kenya (a date

to be prescribed) (referred hereinafter as the Prescribed Period). The goal is not to repeal the pre-existing processes under the Insolvency Act but to introduce

a specific procedure that is available for a limited time during the pandemic to offer relief for businesses and individuals. References to companies apply to

limited liability partnership as well (LLPs).



Corporate Insolvency

a) Insolvency Act

Part VI- Liquidation of Companies There is currently no moratorium or stay against making an application for the winding up of a company.

Rationale for proposed amendment In the absence of a moratorium/stay that would protect and/or shield the directors and the company from liquidation suits or applications, it will be cumbersome for companies to be rescued or for them to pursue any remedial measures that would save the business. As a result, it is highly likely if there is no legislative remedy to shield companies during the pandemic that many companies will be slapped with winding up petitions by creditors.

We recommend the introduction of a procedure allowing a company that is in financial distress or believes it will be in financial distress to make an application to court for a stay on all applications seeking to liquidate it during the pandemic period. The application can be called a COVID-19 Stay Application. The Insolvency Regulations should be amended to include a prescribed form for making such application.

Once the COVID-19 Stay Application is lodged and approved, a company will have a moratorium of 2 months to come up with solutions or structures or proposals that can be adopted to shield the company from the negative effects of the pandemic. The moratorium should be modelled on the already existing moratorium under section 560 of the Insolvency Act that relates to Administration.

After the expiry of the 2 month moratorium period, the company will need to have come up with a


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proposal on how to tackle its problems. The moratorium can be extended for another month only with approval of 50% of its creditors or with court approval. As opposed to re-drafting the entire regime, we recommend that the already existing rescue procedures be varied to include a special provision for COVID-19. We propose that the special provision provides that on expiry of the moratorium pursuant to a COVID-19 Stay Application that a company has 2 options:

(a) If there is no prospect of the company surviving

the pandemic then the company should be allowed to pursue the already existing liquidation procedure under the Insolvency Act; or

(b) If there are prospects of the company surviving that the company be allowed to pursue a COVID-19 Administration (defined and discussed in paragraph 7.1 (b) below) and this may include the pursuit of a company voluntary arrangement during the COVID-19 Administration.

The existing provisions on Company Voluntary Arrangements (CVAs) allow the directors/management of the company to continue being in charge of the company with supervision from a court approved Supervisor. There are also


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creditor approval thresholds already in existence for a CVA.

The COVID-19 Stay Application should be restricted to those companies that can demonstrate that without the benefit of a moratorium that insolvency will be a likely outcome. This is to ensure the legitimacy of the application by a company. In determining whether an application is legitimate, the court could explore a cash flow test or a balance sheet to determine the company’s future liquidity prospects. The following categories of companies should be restricted from the COVID-19 Stay Application:

(a) Companies undergoing administration before

the COVID-19 Pandemic started in Kenya (the COVID-19 Pandemic Commencement Date);

(b) Companies undergoing liquidation before the COVID-19 Pandemic Commencement Date.

The COVID-19 Pandemic Commencement Date will need to be prescribed under the law.

We also recommend that an amendment be incorporated allowing creditors to take remedial action during the moratorium. At any time during the moratorium, creditors can apply to court to challenge the moratorium on the grounds of (i) the legitimacy conditions of the COVID-19 Stay


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Application not being met or (ii) unfair prejudice. The court should take the same approach to lifting the moratorium as with the existing framework for lifting the moratorium which a creditor has.

b) Insolvency Act

Part VIII—Administration of Insolvent Companies- Introduction of a new process to be pursued due to the COVID-19 pandemic. The current regime entails 3 formal procedures that can be pursued by insolvent companies namely: liquidation, administration and company voluntary arrangements.

Rationale for proposed amendment The formal processes in the Insolvency Act were meant to cater for companies that face financial difficulties in the ordinary course of business. The likely negative impact that COVID-19 will have on the financial status of companies is unique and not addressed under the current law. However, amendments to the current regime can be adopted to incorporate specialised procedures for COVID-19. Based on the current regime a procedure modelled on the existing administration procedure would be the most suitable for the short term. The next 12 to 24 months will be crucial for the country and businesses and more fundamental changes to Kenya’s existing insolvency regime should be considered, drafted and implemented. This period will offer the Government and all other stakeholders’ time to study and analyse the impact of the COVID-19 pandemic and this will allow for a more informed response and reforms strategy. It is also advisable to have some level of control of the company be left with the directors or management so as to efficiently operate the company and by extension keep costs low. The management-

We recommend that on the expiry of the COVID-19 Stay Application moratorium and if it is determined that there are reasonable prospects for a company to be rescued, a COVID specific administration process be pursued (COVID-19 Administration). We recommend the following legislative steps: i) introduce a special administration process

which involves a moratorium in respect of claims being made against the company , directors continue in office subject to reporting to a Supervising Administrator as they try and maintain the business as a going concern. Businesses that have collapsed completely e.g. Hotels/lodges/airlines would not be able to continue business until restrictions are lifted.

ii) incorporation on new provisions stating that

the company shall have appointed a Supervising Administrator (during the 2 month moratorium period) who will within 14 days of expiry of the moratorium file a report with the court confirming either:


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displacing aspect of administration arises out of a deeply rooted belief in common law that the party responsible for the company’s problems ought not to be left in control. That is clearly a much less significant concern where the challenges arise out of the wholly exceptional circumstances of the COVID-19 crisis. Many companies are likely to be facing severe liquidity crises, so that the ability to keep administrator costs down by leaving the administrator only to fulfil their essential functions is likely to be a priority and in any case the country only has about 30 licensed Insolvency Practitioners. In addition, the purpose of many of these administration filings will be to stabilise and rescue the company. The directors know the business best, and with expert guidance from the assistance provided by an Supervising Administrator (or where necessary the court), in the circumstances which many businesses are facing, are most likely to be able to stabilise the situation and keep the company on an even keel. It is important to note that this does not involve the delegation of powers from the administrator/Supervising Administrator to the directors. Rather, the administrator/Supervising Administrator simply consents to management retaining the powers which they already have so that they can get on with running the business.

(a) that the company’s proposal for a COVID-19 Administration has a likelihood of success; or

(b) that the COVID-19 Administration will not be successful and/or that the company is unlikely to recover. The court will thereafter make an order placing the company in COVID-19 Administration or order for liquidation

iii) the COVID-19 Administration would run for an

initial 12 month period from the date of the court order but with the possibility of extension by the court. Provided that any extension will not exceed the 24 month period that the legislation is intended to be in operation.

iv) during the COVID-19 Administration the

company continue to be run by the directors/management but with supervision of the Supervising Administrator whose role will be to monitor compliance with the objectives of a Covid-19 Administration.

v) the Supervising Administrator will have the

power to pursue errant directors who are liable for misconduct. As an additional protective measure to creditors, an amendment should be included requiring the consent of the Supervising Administrator for a disposal of the capital assets of the company other than in the ordinary course of business. The Supervising Administrator


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It is likely that for some companies, it may simply be enough to use administration to afford the company a breathing space in which the business can be stabilised and protected during the extraordinary circumstances which all businesses are facing. On the other hand however, other companies will inevitably need to restructure some of their liabilities before they can emerge from the period of stabilisation and protection. The current insolvency law already has two flexible and adaptable corporate restructuring mechanisms, the company voluntary arrangement and the scheme of arrangement, which can be used in conjunction with the administration for this purpose. In addition, if Government reform proposals are progressed (when Parliament reconvenes), there may be a need for a third tool in the shape of a restructuring plan procedure. In addition, there are other mechanisms, which can be engaged in the administration process to achieve a restructuring transaction.

should be granted the powers of an administrator under the Insolvency Act albeit with limitations on the exercise of those powers so as to ensure the running of the company by the management.

vi) payment of creditors during the COVID-19

Administration will be with consent of the Supervising Administrator or with approval of the court or with approval of more than 50% in value terms of the creditors. Administration provides a highly flexible environment in which to make essential payments and to pause other payments, in order to stabilise and protect the business, and create much-needed liquidity, if necessary while a longer-term plan is worked out. While the starting point is that pre-filing liabilities are not paid, the administrator retains the flexibility to make any payment if he determines that that would assist the achievement of the purpose of administration. For these purposes this should extend to COVID-19 Administration and such payments need to be consented to or approved. This will require careful working out and the directors may provide much needed assistance on essential pay-outs – rental liabilities may pose particular issues. This will enable the company (with the assistance of the Supervising Administrator) to work with its creditors to determine which payments must be made, and which can sensibly


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be paused, in order to stabilise and protect the business in the interests of all stakeholders.

vii) incorporate the power to borrow money by the

company through the Supervising Administrator. This is already incorporated as one of the powers of an administrator and should be adopted as one of the powers that the Supervising Administrator can elect. Any new money borrowings to be treated as expenses of the COVID-19 Administration and therefore ranking in priority to pre-existing creditors.

c) Insolvency Act

Part VI- Liquidation of Companies S. 384: this section defines what it means for a company to be unable to pay its debts.

Rationale for proposed amendment In light of the COVID-19 issue, many entities will be unable to pay their debts as and when they fall due and by definition they will be deemed insolvent based on the criteria set out in section 384.

We recommend that section 384 be amended to incorporate a provision to the effect that while a company has lodged a COVID Stay Application it will not be deemed to be insolvent within the meaning of section 384, provided however that the company can demonstrate that it was solvent before the COVID-19 outbreak in Kenya. This would need to apply retrospectively to the COVID-19 Pandemic Commencement Date.

d) N/A There are currently no statutory set-off provisions.

Rationale for proposed amendment Contractual set-off provisions should be suspended during a COVID-19 Stay Application moratorium period to cushion company’s cash flow. The current regime in Kenya does not have statutory set-off provisions such as those encapsulated under UK law. However, parties can still agree to have contractual set-off provisions in their agreements.

We recommend the following measures:

i) That the moratorium to be adopted for a COVID-19 Stay Application has as an additional effect, the requirement that creditors shall not be allowed to exercise any of their contractual set-off rights without the consent of the court or the Supervising Administrator.


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The suspension of the set-off provisions should be incorporated in the COVID-19 Administration as a way of ensuring that the operation of the company as a going concern will not be affected by cash flow issues that may be occasioned by creditors exercising their set-off rights.

ii) Where a COVID-19 Administration has been

selected as the feasible option, then we propose that an amendment be made including the suspension of set-off provisions to the already existing moratorium under section 560.

iii) An amendment to include a proviso stating that

counterparties i.e. such as suppliers and especially essential product and service providers should be precluded from terminating contracts with a company on the basis of insolvency but that such suppliers shall have the right to insist on cash payments. The counterparties will however retain all other termination rights that they have law.

e) Insolvency Act

S. 506: provides that any director who continues the business of a company whereas they know or ought to know that there are no prospects of the company avoiding liquidation, then such director is guilty of wrongful trading and could be held personally liable for any loss/debts incurred by the company.

Rationale for proposed amendment The uncertainty created by the COVID-19 creates a conundrum that needs to be addressed. The directors may not be in a position to positively gauge or determine the possibility of the company avoiding liquidation. There are various unique factors at this time that will affect the business of companies and the existence of the wrongful trading provisions means that the directors are in way limited in the actions they can take. The directors may proceed to cease trading to avoid being held liable for wrongful trading and such a choice may not be the best or the most informed for a company. The directors need to

We recommend that section 506 of the Insolvency Act be amended to include a proviso that the provisions relating to wrongful trading shall not apply to any insolvency process including a COVID-19 Administration that is undertaken and/or commenced within the Prescribed Period.


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be in a position where they are can be able to make decisions without the threat of being held liable for wrongful trading. However, the provisions relating to fraudulent trading should continue to be in effect as is to protect the creditors from errant directors.

f) Insolvency Act

S. 474: provides that where an administrator or liquidator sells assets that are subject to a floating charge, the administrator or liquidator is required to make available for the satisfaction of unsecured debts such portion of the company’s net assets as is prescribed by the Insolvency Regulations. Rule 96 of Insolvency Regulations provides that the portion of the assets to be made available as being 20%.

Rationale for proposed amendment The purpose of a COVID-19 Administration is to offer a more flexible mechanism for business continuity and raising more money for a business to keep going. However, existing lenders who hold floating charges may not feel incentivised enough to give additional funding to the company in light of the 20% deduction that will be shared amongst unsecured creditors. As a result, it may be necessary to suspend this deduction to incentive lenders to provide funding to rescue ailing businesses.

We recommend that Rule 96 of the Insolvency Regulations be suspended during the Prescribed Period for companies that undertake a COVID-19 Administration.

g) Liquidation in the context of the Limited Liability

The LLP Act contains provisions relating to liquidation including the procedures to be followed

The LLP Act was enacted in 2011 before the enactment of the Insolvency Act in 2015. As such, some of the provisions of the LLP Act are not in alignment with the Insolvency Act.

We would recommend that a legislative amendment be incorporated to rectify this situation to either repeal the provisions in the LLP Act dealing with winding up or that they are amended so that they align with the provisions of the Insolvency Act.


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Partnerships Act, 2011 (the LLP Act).

when an LLP is being wound up. However, the Insolvency Act also applies to LLPs.

The definition of a company under the Insolvency Act includes LLPs and therefore the insolvency provisions that apply to limited liability companies apply to LLPs as well. Despite this inclusion, the provisions of the LLP Act dealing with the winding up of LLPs were not amended or repealed. There is therefore a conflict between the LLP Act and the Insolvency Act. Based on the principles of construction, it can be argued that the later statute takes precedence over the older one and in this case the Insolvency Act would apply as opposed to the LLP Act. However, such interpretation is open to challenge.

In the context of the COVID-19 issue, we would recommend that it be made clear that the COVID-19 related amendments proposed above in relation to insolvent companies extend to LLPs.

Individual bankruptcy

(a) Insolvency Act

Part III - Bankruptcy of Natural Persons This section of the Insolvency Act deals with the bankruptcy of natural persons. The section defines what it a bankruptcy application entails, who is entitled to make the application and the court procedures for making the applications.

Rationale for proposed amendment Individuals who will be rendered bankrupt by the COVID-19 pandemic should be cushioned against bankruptcy processes to give them an opportunity to recover from their financial difficulties which have been caused by factors beyond their control.

We recommend that an amendment to this section be considered providing for a stay on filing bankruptcy suits for the Prescribed Period beginning with the COVID-19 Pandemic Commencement Date.

During the Prescribed Period, a bankrupt should be allowed to make an application for protection against bankruptcy proceedings being made against them. The section should be amended to include an additional application process allowing an individual to lodge a protection application triggering the commencement of the stay.

The regulations should also be amended to include a prescribed form for making such an application, by an individual seeking that protection.


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9 REAL ESTATE

9.1 Land Act, No. 6 of 2012



a) Land Act, No. 6 of 2012

S.24, S.31 and S.32: there is an implied condition under leases granted by the National/County Government or licences for unalienated public land granted by the National Land Commission for lessees and/or licensees to pay licence fees, royalties taxes, rates, charges, duties, assessments or other outgoings.

Licence fees, royalties, taxes, rates, charges, duties, assessments & outgoings. Rationale for proposed amendment A number of lessees and licencees may not be able to pay licence fees, royalties, taxes, rates, charges, duties, assessments or outgoings as a result of being unable to physically access the National/County Government and National Land Commission offices or banks to make payment during the COVID-19 pandemic. The National/County Governments and the National Land Commission (NLC) should adopt digital platforms including mobile money platforms and online services for purposes of receiving payment of various rents, principals, instalments, royalties or other payments under any agreement, lease or license through. This will help ensure the National/County Government and the NLC that they are able to continue receiving the various sources of income in the event of a lockdown from those persons who are willing and able to make payments during the COVID-19 pandemic period.

We recommend that the National/County Governments and the NLC adopt digital platforms including mobile money platforms and online services to receive various payments of various rent, principal, instalment, royalty or other payments under any agreement, lease, license or levy. If the above recommendation is not possible, we recommend that the National/County Government and/or the NLC does not exercise the statutory right to sue for any rent, principal, instalment, royalty or other payment, payable under any agreement, lease or license that is in arrears, or for any penalty payable thereunder until sixty (60) days after the GOK End of COVID Gazette Notice is published.

b) Land Act, No. 6 of 2012

S. 73: landlords of residential and commercial premises

Rents and other payment under any agreement, lease or license and right of re-entry and the right to exercise forfeiture

We recommend that: (i) In relation to both residential and

commercial premises where the rental


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have the right of re-entry and the right to exercise forfeiture should the tenant fail to pay rent, service charge and other payments or are in breach of other covenants (such as repairing obligations or in the case of commercial premises to keep open within certain hours) under the Lease in respect of the premises.

Rationale for proposed amendment There has been a downturn in economic activity due Covid-19 and the containment measures directed by the Government in an effort to contain the COVID-19 pandemic. This has also led to reduced revenue and as well as depressed cash flows for a number of tenants from their businesses. The low-income earners e.g. casual workers and persons working in the informal (jua-kali) sectors and other low-income earners are amongst the most negatively impacted economically e.g. due to loss of jobs, unpaid leave, closure of their businesses etc and their ability to pay rent for residential properties is significantly impaired. The eviction of such persons and their families from their residential premises due to the inability to pay rent would have significant negative social implications. Similarly, informal sectors and small businesses will be considerably negatively impacted by COVID-19 due downturn in economic activity and their inability to pay commercial rents will also be significantly impaired. This could lead to closure of their businesses which could result in further consequences at a broader level. Such persons have limited bargaining powers and are also unlikely to be in a position to easily shift to cheaper premises. The proposed amendment will provide relief for residential and commercial tenants in the lower-income brackets who are unable to pay the usual rent during the COVID-19 period from forfeiture of the

payments are KES 10,000 per month or below:

a. the right of landlords to exercise enforcement remedies such as the right of re-entry and forfeiture, to levy distress or take any other legal proceedings against tenants where tenants have breached the covenant to pay or any other implied or express covenant be suspended for the duration of the COVID-19 pandemic in Kenya and for a period of at least 60 days after the GOK End of COVID Gazette Notice is published; and

b. at the end of the aforesaid period, the landlords would have the right to recover any unpaid rents and other sums relating to the COVID-19 period when the tenants were allowed a rent abatement.

(ii) In relation to both residential and

commercial premises where the rental payments are between KES 10,000 – KES 25,000 per month and who were not in breach prior to COVID-19:


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premises or from the landlord exercising other remedies. The proposed amendments will also provide both tenants in the low-income brackets and their landlords time to negotiate structured payments and reach voluntary arrangements about rental and other payments. This should however only apply to tenants who have been unable to comply with various terms under their respective lease during the COVID-19 period as opposed to tenants who had already been in breach of their lease prior to the Covid-19 period and the landlords rights of forfeiture and re-entry accrued prior to the Covid-19 period. In relation to premises attracting rentals above KES 25,000 per month, we propose that both tenants and landlords are encouraged to negotiate structured payments and reach voluntary arrangements about rental and other payments during the COVID-19 pandemic period but that this is not legislated by statute in order not to unduly interfere with contracts.

a. there is an automatic temporary reduction of 30% to the monthly rent for the duration of the COVID-19 pandemic in Kenya and for a period of at least 60 days after the GOK End of COVID Gazette Notice is published; and

b. the above notwithstanding, the tenants will during COVID-19 continue to pay any service charges, utility charges and insurance costs that were payable under their leases or licences prior to COVID-19; and

c. at the end of the aforesaid period,

the landlords would have the right to recover any unpaid rents and other sums relating to the COVID-19 period (including the temporary reduction amount of 30%) when the tenants were allowed a rent abatement.

(iii) In relation to both residential and

commercial premises where the rental payments are above KES 25,000 per month, both tenants and landlords are encouraged to negotiate structured payments and reach


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voluntary arrangements about rental and other payments during the COVID-19 pandemic period but that this is not legislated by statute in order not to unduly interfere with contracts

c) Land Act S. 133C(2): relates to the jurisdiction of the Land Acquisition Tribunal (Tribunal). This further provides that a person aggrieved by the decision of the NLC should file an application to the Tribunal within 30)days.

Timelines. Rationale for proposed amendment. There may be practical challenges in filing applications at the Tribunal within 30 days especially for decisions rendered by the NLC during this period. The extension of the period (after the GOK End of COVID Gazette Notice is published) is intended to deal with any backlogs arising from COVID-19 and will only be applicable to the period when the COVID-19 pandemic containment measures were in force. The standard period of 30 days will continue to apply thereafter.

We recommend that the requirement to file an appeal within 30 days be suspended during the existence of the COVID-19 pandemic in Kenya and the timelines to do so be extended to 60 days from the date when the GoK End of COVID Gazette Notice is published.


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9.2 The Rating Act (Chapter 267, Laws of Kenya)



a) Rating Act (Chapter 267)

S. 16(3): a rating authority is required to charge simple interest at the rate of 3% per month on any sum remaining unpaid after the day on which the same was payable

Charging of interest. Rationale for proposed amendment There has been restricted access to some county government banking halls since the start of the COVID-19 outbreak in Kenya which has made it difficult or impossible for owners of rateable properties to pay land rates within the statutory timelines. The waiver of interest for late payment of land rates would cushion property owners from incurring penalties as a result of restrictions on interpersonal contact due to COVID-19.

Property owners should be given a period of 1 year after the GOK End of COVID Gazette notice is published to pay outstanding rates. Interest can accrue after this period.

We recommend that interest on late payment of rates is waived for the duration of the COVID-19 pandemic and 1 year after the GOK End of COVID Gazette Notice is published.


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9.3 The Land Registration Act, No. 3 of 2012



a) Land Registration Act, No. 3 of 2012.

S. 36 (4): where a party presents an instrument for registration later than 3 months from the date of the instrument, an additional fee, other than the registration fee is payable.

Timelines and penalties for non-compliance, and disincentive for lending during this crisis. Rationale for proposed amendment

On 16 March 2020, the Cabinet Secretary of Lands and Physical Planning ordered the temporary closure of all lands offices and registries in the country from 17 March 2020 for a period of 28 days.

The closure, and the additional uncertainty surrounding the COVID-19 outbreak in Kenya in terms of when operations will resume, may mean that parties who present instruments later than the stipulated period are penalized.

Further, the Land Registration (Electronic Land Transactions) Regulations, 2019 which proposed that all registry transactions under the Land Registration Act be carried out through the electronic registry system in the land registries were annulled.

Prescribing that the period between the initial closure of the Land Registry (17 March 2020) until after the GOK End of COVID Gazette Notice is published shall not be factored when computing the time prescribed under section 36 (4) of the Land Registration Act is intended to deal with any delays or difficulties in registration of securities at the Land Registry and will

We recommend that: i) the requirement to present the documents

for registration within 3 months be suspended for the duration of the COVID-19 pandemic in Kenya;

ii) the period between the closure of the Land Registry (17 March 2020) until the date the GOK End of COVID Gazette Notice is published should not be factored when computing the time prescribed under section 36 (4) of the Land Registration Act. The time prescribed for registration of instruments should therefore run from the date the GOK End of COVID Gazette Notice is published; and

iii) all the penalties and other liabilities for non-compliance are waived for the duration of the COVID-19 pandemic until after the GOK End of COVID Gazette Notice is published.


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only apply to documents relating to the COVID-19 period. The attendant penalties should also be waived until after the GOK End of COVID Gazette Notice is published.

b) Land Registration Act, No. 3 of 2012.

S. 45: a person executing an instrument is required to appear before the Registrar, public officer or other person as is prescribed and be accompanied by a credible witness for the purpose of establishing identity, unless the person is known to the Registrar, public officer or other person.

Onerous requirement in light of the restrictions on movement and social distancing measures. Rationale for proposed amendment

Due to the COVID-19 outbreak in Kenya and increased social distancing measures, many people in the country are working from home and in-person meetings are generally discouraged unless absolutely necessary. In-person verification of execution of instruments as required under the Land Registration Act is difficult at best.

While section 25 of the Business Laws (Amendment) Act No. 1 of 2020 offers marginal relief for instruments that have been electronically processed by amending section 45 of the Land Registration Act, we would propose a waiver in totality of the in-person verification of execution until the date the GOK End of COVID Gazette Notice is published.

We recommend that: i) the requirement for physical/in-person

verification of execution under section 45 of the Land Registration Act is waived until after the date the GOK End of COVID Gazette Notice is published;

ii) video witnessing/ attestation of documents that require to be executed in the presence of a witness are provided for without the need for the physical presence of both the signatory and the person witnessing;

iii) alternatively, the witness could be allowed to attest the signature upon the acknowledgement of a signature by the signatory in the absence of actual witnessing; and

iv) where electronic signatures are used for purposes of executing documents, it is made clear that an electronic signature is capable of being witnessed and attested.


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c) Land Registration Act, No. 3 of 2012.

S. 56 (4): unless the land in question is freehold property, the Registrar shall not register a charge unless a land rent clearance certificate, and the consent to charge has been presented.

Timelines in registration of charges extended by the need to provide a land rent clearance certificate. Rationale for proposed amendment While we note the importance of retaining the consent to charge under section 56 of the Land Registration Act, it may be useful to simplify transactions by having fewer requirements before registration of instruments such as the provision of a land rent clearance certificate. It is also worth noting that the equivalent requirement to provide a land rent clearance certificate before an instrument transferring interest, vesting any land or a lease of land is registered has been removed by the recently enacted Business Laws (Amendment) Act, 2020.

The amendment seeks to simplify the registration process with regard to charges over land and should be extended beyond the COVID-19 pandemic.

We recommend that the requirement to present the land rent clearance certificate before registration of a charge be deleted to bring it in line with the amendments in the Business Laws (Amendment) Act, 2020.

9.4 The Land Control Act (Chapter 302)



a) Land Control Act, Chapter 302

S. 8 (1): an application for consent in respect of a controlled transaction is to be made within 6 months of the making of the agreement for the controlled transaction.

Timelines and the consequential penalties for non-compliance.

Rationale for proposed amendment Whereas the Land Control Board (LCB) does not fall directly under the ambit of the Ministry of Lands and Physical Planning, due to synergies

We recommend that: i) the requirement to seek consent of the LCB

within 6 months be suspended for the duration of the COVID-19 pandemic in Kenya until after the date the GOK End of COVID Gazette Notice is published;


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The High Court has the discretion to extend that period where it considers that there is sufficient reason so to do, upon such conditions, if any, as it may think fit.

between the operations of the land registries and the LCB (for instance the need for recent search reports to accompany an LCB application, the secretary of the board is a registry official), LCB meetings are not being convened as scheduled.

Additionally, parties are not able to proceed with the registration of an interest in the property at the relevant land registry even in the event LCB consent is issued as the land registries are closed.

Prescribing that the period between the closure of the Lands Registry (17 March 2020) until after the GOK End of COVID Gazette Notice is published shall not be factored when computing the time prescribed under section 8 (1) of the Land Control Act is intended to deal with any delays or difficulties in obtaining LCB consent. This should apply to documents that had been executed and were within the prescribed six (6) month period but had not been considered for issuance of LCB consent due to the COVID-19 pandemic.

The requirement to seek a court order in order to extend the deadline for registration should be waived in light of the COVID-19 pandemic.

ii) the period between the closure of the Land Registry (17 March 2020) until the date the GOK End of COVID Gazette Notice is published should not be factored when computing the time prescribed under section 8 (1) of the Land Control Act; and

iii) the requirement to seek a court order should be similarly suspended for the duration of the COVID-19 pandemic in Kenya until after the date the GOK End of COVID Gazette Notice is published.


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10 CONSTRUCTION (INCLUDING REAL ESTATE CONSTRUCTION)



a) No regulations/ guidelines in place

N/A Lack of Guidelines on whether construction works allowed to continue

Lack of guidelines on construction works. Rationale for proposed amendment We note that currently there is no guidance on whether construction work can be carried and if so under what circumstance. Clear directions need to be given to confirm the following: (i) whether a construction site would be

deemed to be a public gathering bearing in mind the high number of workers that are usually present at a site;

(ii) if a construction site is deemed to be a public gathering, is it permissible for the sites to carry on work?

(iii) if so, additional guidelines should be published to govern the circumstances under which construction work can be carried out and the safety measures to be taken while undertaking the work.

We recommend that clear directions need to be given to confirm the following: (i) whether a construction site would be

deemed to be a public gathering bearing in mind the high number of workers that are usually present at a site;

(ii) if a construction site is deemed to be a public gathering, is it permissible for the sites to carry on work?

(iii) if so, additional guidelines should be

published to govern the circumstances under which construction work can be carried out and the safety measures to be taken while undertaking the work.


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11 PROJECTS & INFRASTRUCTURE

11.1 Public Procurement and Asset Disposal Act, 2015 (PPADA)



a) PPADA S. 91: open tendering shall be the preferred procurement method for procurement of goods, works and services under the PPDA

Open tendering.

Rationale for proposed amendment

Open (i.e. competitive) tendering is an inherently protracted process. As the procurement requirements of COVID-19 are likely to be urgent, open tendering is not a practical option for procurement of goods and services.

We recommend that a new schedule be inserted into the PPDA:

(i) setting out the goods and services designated by GoK to be “essential” during the COVID-19 pandemic; and

(ii) permitting these goods and services to be procured via direct or single sourcing procurement until the date on which the GoK End of COVID Gazette Notice is published.

Further, the amendments should allow for the relevant Cabinet Secretary to update the list from time to time as matters evolve.

b) PPADA S. 77: submission of tender documents whether in electronic or manual form, shall be in writing, signed and in the case of manual submission, they shall be sealed in an envelope. A procuring entity shall ensure that the place or site where tenders shall be submitted is open and accessible and shall provide, in that place or

Manual/physical submission of tender documents. Rationale for proposed amendment

The physical distancing requirements of COVID-19 render the physical submission of tender documents unsafe and impractical. Although section 77 provides for electronic submission as an option, all submission of tender documents should be electronic at during the COVID-19 pandemic so as to minimize physical contact.

We recommend an amendment requiring that all tender documents be submitted electronically (without the need for hard copies) until the date on which the GoK End of COVID Gazette Notice is published.


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site, a tender box including an electronic tender box that complies with the prescribed requirements.

c) PPADA S. 78: provides the procedure for opening of tenders including that: (i) those submitting

tenders or their representatives may attend the opening of tenders (section 78(4));

(ii) as each tender is opened, a member of the tender opening committee shall read out loud and record in a document to be called the tender opening register various details of the tender (section 78(6));

(iii) each member of the tender opening committee shall sign each tender on one or more pages and initial each tender against the quotation of the price and any modification

Physical tender opening sessions and procedures. Rationale for proposed amendment

The procedure under section 78 envisions that tenders or their representatives and tender opening committees will be physically present as a group during a tender opening session. Section 78 also contemplates the physical signing and initialling of tender documents by tender opening committees. Such physical gathering and manual signature/initialling requirements would be unsafe and impractical in light of COVID-19.

We recommend that the tender opening procedure is amended to be entirely digital i.e.:

(i) the tender opening process should occur via video conference and rely on electronically submitted tender documents;

(ii) tenderers or their representatives may attend the opening of tenders via video conference;

(iii) members of tender opening committees shall sign and initial tender documents using digital signatures; and

(iv) tender opening minutes shall be prepared and shared digitally.


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and discounts (section 78(9)); and

(iv) the tender opening committee shall prepare tender opening minutes, initial each page of the minutes and append his or her signature as well as initial to the final page of the minutes (section 78(11)).

d) PPADA S. 88 (3): accounting officers of procuring entities are permitted to extend the period during which tenders shall remain valid. However, such extension is restricted to not more than 30 days and may only be done once.

Expiry of tender validity periods during the COVID-19 outbreak in Kenya. Rationale for proposed amendment

On-going tenders may reach their expiry period during the COVID-19 pandemic and accompanying national restrictions on movement and workspaces. As it is currently unclear when the COVID-19 within Kenya will come to an end, the PPDA should provide for extension of tender validity periods beyond the current 30-day extension limit.

We recommend that section 88 be amended to permit accounting officers of procuring entities to increase the tender validity period of ongoing tenders to 30 days after the date on which the GoK End of COVID Gazette Notice is published.


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e) PPADA S. 103(2) (b): direct procurement may be used as long as the purpose is not to avoid competition and if any of the conditions in section 103(2) are satisfied. The condition in section 103(2)(a) is that the goods, works or services are available only from a particular supplier or contractor, or a particular supplier or contractor has exclusive rights in respect of the goods, works or services, and no reasonable alternative or substitute exists.

One limb of direct procurement subjects procurement entities to satisfying a sole or exclusive supplier test. Rationale for proposed amendment

In certain circumstances e.g. when procuring essential goods to address COVID-19 pandemic or other urgent supplies, procuring entities may need to use direct procurement even where these are available from more than one supplier or contractor, or where more than one supplier or contractor has rights in respect of the goods, works, or services.

We recommend that section 103(2)(b) be expanded to cater for direct procurement during COVID-19 even where the sole or exclusive supplier test is not met. The intent of such amendment would allow the relevant state entities to have flexibility to procure similar goods and services from a number of providers providing the same/substantially similar services and goods. Practically a carve out in respect of essential services could be added to this section to permit flexibility.

f) PPADA S 135: the existence of a procurement contract shall be confirmed through the signature of a contract document incorporating all agreements between the parties, and such contract shall be signed by the accounting officer authorized in writing or by

Physical execution of documents and time limits for signing procurement contracts. Rationale for proposed amendment

The physical distancing requirements of COVID-19 will likely prolong and hinder the physical execution of procurement contracts as required under section 135.

We recommend that: i) section 135 be amended to permit all parties to

perform electronic signing of procurement contracts. Although section 64(2) of the PPDA permits the use of digital signatures for procurement and asset disposal proceedings, we recommend that the PPDA be amended to permit digital signatures specifically for procurement contracts; and


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an officer authorised in writing by the accounting officer of the procuring entity and the successful tenderer. Under section 135(2), a procurement contract is required to be entered into within the period specified in the notification but not before fourteen days have elapsed following the giving of that notification provided that a contract shall be signed within the tender validity period.

Further, it may not be possible for parties to a procurement contract to sign such contract within the tender validity period, for example where such party does not have access to tools for digital signatures.

ii) the time limit for signing of a procurement contract under section 135(2) be extended to 21 days after the date on which the GoK End of COVID Gazette Notice is published.

g) PPADA S. 124 (6): in procuring professional services that are of a predominantly intellectual or advisory nature, Quality and Cost Based Selection (QCBS) shall be the preferred method to be used to evaluate proposals. Under section 124(14), if Single Source Selection is used, it shall require a placement of advertisement of the intention to single source

The current procurement framework does not adequately provide for urgent recruitment of consultants. Rationale for proposed amendment

The unprecedented nature of COVID-19 may require the procurement of specialist consultancy and advisory services by procuring entities (for example, consultants to advise on public health best practice). Where this is required, procuring entities should have the latitude to procure such consultancy services as quickly and efficiently. The requirement that

We recommend that the PPDA be amended to allow procuring entities to procure consultancy services without adhering to the requirements of Part X (Procurement of Consultancy Services) where these are required in response to COVID-19 or on an urgent basis or other relevant circumstances until the date on which the GoK End of COVID Gazette Notice is published.


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and an invitation to anyone who wishes to bid. In the event that there is a response to the advert then all interested suppliers shall be invited to submit proposals.

an advertisement be placed for single source procurement, and proposals considered, would be time inefficient given the urgency of the public health crisis. We therefore suggest that this requirement is waived or relaxed in respect of any procurement for services related in any way to the COVID-19 pandemic.

h) PPADA S. 155: procuring entities shall give preference to: (i) manufactured articles, materials and supplies partially mined or produced in Kenya or where applicable have been assembled in Kenya; or (ii) firms where Kenyans are shareholders (i.e. above 51% of the firm’s shareholders are Kenyan). Where a procuring entity seeks to procure items not wholly or partially manufactured in Kenya: (i) the accounting office shall cause a report to be prepared detailing evidence of inability to procure manufactured articles, materials and

Procuring entities may need to procure works, goods and services widely during COVID-19 and should not be restricted by local content requirements. Rationale for proposed amendment

The COVID-19 outbreak will require an exponential increase in the procurement of services and supplies by procuring entities including the services of specialist cleaning companies and the purchase of protective wear, test kits and medicines. Where:

(i) the supply of Kenyan produced/owned goods and services has been exhausted or is inadequate; or

(ii) unique goods or specialist services are required to tackle COVID-19,

procuring entities should be exempt from the requirement to give preference to Kenyan produced/owned goods and services.

We recommend that the PPDA be amended to exclude the application of section 155 to procuring entities from section 155 where the goods or services are required in response to COVID-19 or on an urgent basis or other relevant circumstances until the date on which the GoK End of COVID Gazette Notice is published.


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supplies wholly mined or produced in Kenya; and (ii) the procuring entity shall require successful bidders to cause technological transfer or create employment opportunities.

Procuring entities should also be exempt from the requirement to prepare a report detailing evidence of inability to procure Kenyan manufactured goods and supplies as their resources should be redirected to tackling the current public health crisis. Finally, it may be impractical to require that successful non-Kenyan bidders will create technological transfer or employment opportunities; these may not be priorities for public entities focused on mitigating the spread and effects of COVID-19.

i) PPADA S. 167: a candidate or tenderer who claims to have suffered or to risk suffering, loss or damage due to the breach of a duty imposed on a procuring entity may seek administrative review within 14 days of notification or the award or date of occurrence of the alleged breach at any stage of the procurement or disposal process.

Aggrieved tenderers should not be restricted from exercising their access to remedy due to deadlines which may lapse during the COVID-19 pandemic.

Rationale for proposed recommendation

The Procurement Administrative Review Board (the Review Board) is unlikely to be sitting given the physical distancing requirements of COVID-19. If so, a candidate or tenderer seeking review under the PPDA should be granted an extended period within which such review can be sought.

We recommend that the requirement to seek administrative review within 14 days be suspended and instead the time period within which a candidate or tenderer may request a review by the Review Board under the PPDA be increased to 21 days after the date on which the GoK End of COVID Gazette Notice is published. The Review Board can also be given a directive to conduct its proceedings by way of video conferencing, similar to the manner in which the courts are attending to cases.


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j) PPADA S. 168: upon receiving a request for a review under section 167, the Secretary to the Review Board shall notify the accounting officer of a procuring entity of the pending review from the Review Board and the suspension of the procurement proceedings in such manner as may be prescribed.

Suspension of procurement proceedings pending review.

Rationale for proposed recommendations

Due to the time-sensitive nature of COVID-19-related procurement, procurement of essential works, goods and services should not be suspended pending review by the Review Board.

We recommend that procurement proceedings for essential works, goods and services in respect of which a review has been issued should not be suspended and that the procurement should continue. This should only apply in respect of procurements for essential goods and services required in connection with the COVID-19 pandemic. Any aggrieved candidates/tenderers can seek redress at a later time under other avenues of re-dress available to them at law. The suspension of any tenders could be prejudicial to the essential nature of services procured to address the COVID-19 pandemic.

k) PPADA S. 171: the Review Board shall complete its review within 21 days after receiving the request for the review.

Review Board timelines.

Rationale for proposed recommendation The Review Board is unlikely to be able to conduct its activities within ordinary timeframes during the COVID-19 pandemic.

We recommend that the Review Board be granted an extension of time to complete reviews to 21 days after the date on which the GoK End of COVID Gazette Notice is published.


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11.2 Energy Laws



a) Energy Act S. 119: Before making any application for a licence for the generation, exportation, importation, transmission, distribution and retail of electricity, an applicant is required to give 15 days' notice, by public advertisement, in at least 2 newspapers of nationwide circulation requesting for any representations or objections to the application or to the grant of the licence. S. 120: The Energy and Petroleum Authority may hear any objections in public.

The timelines required for the public participation process & public hearing of objections Rationale for proposed recommendations

It is likely that the COVID – 19 situations may lead to an emergency need for electricity supply for provisional hospitals and/or isolation centres. It would therefore not be practical in such instances for the public participation requirements under the Energy Act to be fully met. Further, the restrictions in movement imposed by the Government would render the conduct of any public hearings relating to objections nearly impossible.

We recommend the introduction of a carve-out to this section of the Energy Act which would remove the requirement for public participation and consultation where a licence is being issued to entities undertaking any activities relating to addressing the COVID-19 pandemic and therefore the carve out would be specific to “applications for the generation, exportation, importation, transmission, distribution and retail of electricity demonstrated to be in relation to any urgent electricity needs arising from the COVID- 19 pandemic. Further, we recommend that EPRA provides for the suspension of public hearings and provide that every objector should submit comprehensive written submissions of the reasons for the objections via electronic means e.g. email or arrange for a speedy electronic hearing of the objections in relation to all other licence applications which are not directly related or aimed at addressing the COVID-19 pandemic.

b) Energy Act S. 126: Revocation of a licence or permit by Energy and Petroleum Authority (EPRA) if it is satisfied that the licence is either wilfully or

Inability to comply with terms and conditions of a licence or permit. Rationale for proposed recommendations Operations of a lot of industries (including the energy industry) have been affected

We recommend that the law is amended to provide that prior to imposing any sanctions against non-compliant licensees, EPRA should consider the reasons for non-compliance presented to it by such licensees. These could include reasons relating to the CIVID-19 pandemic.


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negligently not operating in accordance with the terms and conditions of the licence or the provisions of the Energy Act or regulations. We also note that section 82 provides that the Cabinet Secretary may on the advice of EPRA wholly or partially remit any terms or conditions contained in a license where, owing to special circumstances, in his opinion, compliance therewith would be impossible or great hardship would be inflicted upon the licensee.

significantly by the various governmental directives and safety measures issued in relation to the COVID- 19 pandemic. We anticipate therefore, that many licensees may be unable to comply with some requirements under the licences (including possible instances of late payment of annual fees) which would subject to the licensee to the imposition of sanctions by EPRA. We however note that electricity generating licences provide for exceptions and limitations on the licensee’s obligations due to an event of Force Majeure and that the COVID-19 pandemic could be classified as an event of Force Majeure.

The law should also be amended to provide that EPRA should waive the imposition of any penalties where: i) a licensee is unable to pay any annual fees

payable under a licence; ii) the licensee delays in the payment of such annual

fees; or iii) the licensee fails to comply with conditions

prescribed in its respective license, in each case where such failure is demonstrated to have been due to Covid-19, provided that the licensees follow the prescribed notification requirements under the Energy Act, the regulations and the respective licences.

We also recommend that all licences coming up for renewal during the COVID-19 period should also be automatically renewed for period of 6 months, if an electronic renewal process cannot be put in place. Fees in respect of the renewal can be paid when the licences are renewed at the end of the extended 6 month period or arrangement for electronic payment of the renewal fee can be made and such fees would be charged on a pro-rata basis.

c) Feed in Tariff (FiT) Policy

Paragraph 3: If at the end of the 3 year exclusivity period the project will not have reached financial

Exclusivity periods under EOI approvals.

Rationale for proposed recommendation The lock down measures imposed by the Government to curb the spread of COVID- 19

We recommend that the law is amended to provide that the FiT Committee should consider an extension of the EOI approvals whose exclusivity period was to expire this year or which were issued in 2019 and those that will be issued this year. Such exclusivity


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close, the FiT Committee will review the status of the project and inform the project applicant of the decision to either:

i) extend the Expression of Interest (EOI) approval exclusivity period for a further period; or

ii) withdraw the EOI approval from the project applicant and make the site available to other developers.

have affected the efficient operations of many organisations including Governmental departments in charge of issuing licences and approvals for power projects. This would affect the attainment of financial close within the anticipated periods by parties who had obtained EOI approvals and consequently affect the three year exclusivity period granted by the EOI approval. The exclusivity periods in certain EOI approvals should therefore be extended on the basis that the development of a lot of these projects will be delayed due to the pandemic and such projects may not attain financial close within the prescribed period.

period should be extended for a period of at least 6-9 months.

11.3 Construction and development laws



a) Physical Planning Act, County Governments Act, Urban Areas and Cities Act

The county governments are given the power to issue various approvals and permits within their areas of jurisdiction including change of user, extension of user, approval of building plans,

Physical submission of applications for permits & imminent expiry of some permits

Rationale for proposed recommendations Some county governments such as Nairobi county have adopted an e-development permit system, however most counties still require the

We recommend that counties consider:

i) an automatic extension of the term of licences and permits which will expire between April and June for an additional period of 6 months; and

ii) developing an e-development permit system where:


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sub-division schemes and amalgamation proposals construction permits and development permissions.

physical submission of applications for permits and renewals of the same. This would be affected by the stringent measures adopted by the Government as part of curbing the spread of COVID-19 in Kenya.

An efficient e-development permitting system would minimise physical with the various county offices and would also facilitate the continued operations of various developments.

a) architects, physical planners and structural engineers can register in order to permit them to access the system’s processes;

b) applicants can submit applications for various construction and development related permits and applications for renewal, transfer or variation of such approvals;

c) applicants are able to pay for the submitted applications and receive an e-generated receipt;

d) applicants are able to monitor the status of the submitted applications;

e) the county is able to review, approve and issue development approvals; and

f) the county is able to capture inspection data.

b) Environmental and Management Coordination Act (EMCA) and the Environmental Impact Assessment and Audit Regulations

The National Environment and Management Authority (NEMA) is given the powers to issue all environmental licences provided under the EMCA and the various regulations under the EMCA.

Physical submission of applications for permits, imminent expiry of some permits & public participation requirement in conducting an environmental impact assessment studies in the form of at least three public meetings.

Rationale for proposed recommendation There has been restricted access to offices due to the lockdown measures imposed by the Government since the start of the COVID-10 outbreak in Kenya which would make it difficult or impossible for government departments to

We recommend that NEMA consider: i) an automatic extension of the term of licences

and permits which will expire between April and June for an additional period of 6 months;

ii) to the extent possible, suspend the issuance and renewal of licences which would require public participation, site visits and/or the physical inspection of premises until the lockdown measures put in place by the Government are lifted;

iii) creating an e-licencing portal on its website which

would:


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offer their services as many of them were dependent on physical contact with clients.

Public participation would not be practical during the COVID-19 period given the various governmental restrictions on public gatherings.

a) allow applicants to submit applications for various environmental licences and applications for renewal, transfer or variation of such licences;

b) allow applicants to pay electronically for the submitted applications and receive e-generated receipts; and

c) provide for the self-registration of its experts in order to permit them to lodge environmental monitoring and audit reports.

c) Environmental and Management Coordination Act (EMCA) and the Environmental Impact Assessment and Audit Regulations

S. 68 and 69: continuous environmental monitoring in the form of environmental audits.

Issue: Site visits by NEMA experts as part of continuous environmental monitoring and conducting environmental audits


Environmental audits are undertaken by experts approved by NEMA who typically visit a project site for inspection purposes and to confirm whether the project’s activities conform to the statements made in the environmental impact assessment study. Individuals carrying out such inspection may be in a position to spread the disease.

In the interim and as the Government is still trying to contain the COVID-19 pandemic, we would recommend that: i) NEMA considers issuing a directive on the

extension of any timelines required under EMCA, EIA licence and the regulations for the conduct of any environmental audits required in connection with any existing or on-going projects.

ii) issues a directive on the requirement for all of its experts to incorporate the following safety measures put in place by the National Emergency Response Committee on Coronavirus to curb the spread of COVID-19 while conducting environmental impact assessment studies and environmental audits at various project sites:

i. require the NEMA approved experts to put on appropriate protective wear such as masks and gloves;


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ii. require project sites to provide clean water, soap and hand sanitizers to the environmental experts;

iii. require the environmental experts to observe social distancing measures.

To the maximum extent possible, NEMA should also require that submissions of all environmental impact assessment and audit reports should be done online.

d) Environmental and Management Coordination Act (EMCA)

EMCA gives NEMA the powers to revoke, cancel or refuse to renew environmental licences.

Revocation, non-renewal or cancellation of a licence due to a licensee’s breach of terms and conditions of the licence. Rationale for proposed recommendations The adverse effects of the COVID- 19 pandemic, lockdown measures and safety measures imposed by the Government have led to the inability of businesses to comply with certain terms and conditions under various environmental licences.

The waiver (for a period of time) of compliance of certain terms and conditions of an environmental permit and the waiver of the imposition of sanctions due to breach of terms and conditions of a licence would mitigate the adverse effects of the pandemic on the licensees.

We recommend that NEMA considers: i) waiving the compliance of any of the terms and

conditions contained in environmental permits where compliance therewith would be impossible/onerous due to the COVID-19 situation; and

ii) waiving any sanctions or penalties for non-compliance of terms and conditions.


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e) Water Act The Water Resources Authority (WRA) is given the powers to issue licences provided under the Water Act.

Rationale for proposed amendment We understand that the current practice requires the physical submission of applications for the issuance of licences under the Water Act to the various WRA county offices. This requirement may not be practical given the recommendations of the National Emergency Response Committee on Coronavirus with respect to the reduction in public-facing operations by organisations.

We recommend that WRA should consider: i) an automatic extension of the term of licences

and permits which will expire between April and June for an additional period of six months;

ii) creating an e-licencing portal on its website which would:

1. allow applicants to submit applications for various water licences and applications for renewal, transfer or variation of such licences; and

2. allow applicants to pay for the submitted applications and receive e-generated receipts.

f) Water Act S. 40 (4): an application for a water permit shall be the subject of public consultation. However, the Water Act provides for instances where the WRA may issue a water permit without public consultation ( i.e. upon the advice of the relevant basin water resources committee)

Public consultation prior to the issuance of a water permit. Rationale for proposed amendment It is not clear what events would constitute “exceptional circumstances” under the Water Act. Given the current restrictions on public gatherings, we would expect the pandemic to constitute an exceptional circumstance in which a water permit may be issued without public consultation (which under section 139 includes holding a public meeting).

We recommend that instances be included which would impede public consultation and therefore would constitute “exceptional circumstances” such as the outbreak of a contagious disease or the restriction of movement in certain areas due to a governmental directive.

g) Occupational, Safety and

This Act provides for various health and safety requirements that an

Issue: The Directorate should consider:


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Health Act (OSHA)

employer is required to put in place at the workplace including:

S. 101: provide free protective equipment including clothing and appliances, and where necessary, suitable gloves, footwear, goggles and head coverings to the workers involved in hazardous work;

S. 6 (2)(d): provide instruction, training and supervision as is necessary to ensure health and safety at work of his workers;

S. 11: conduct of a safety and health audit at least once every 12 months;

S.11: continuous inspection of project sites to ensure that all safety and health measures are being undertaken.

Physical submission of applications for permits/Issuance of permits- we understand that this is a practical requirement and in person/physical applications need to be made at the relevant county offices in respect of the relevant permits.

Requirement to carry out safety and health audits which involve site visits by the Directorate’s experts & continuous inspection of premises for conformity with safety and health standards.


The various lockdown, social distancing and minimising physical contact of people adopted by Government to curb the spread of COVID-19, the Directorate would make the current licensing system and auditing system difficult and/or impractical.

i) creating an e-licencing portal on its website to minimise any physical contact with the county government offices. The e-licensing portal should:

1. allow applicants to submit applications for various OSHA licences and applications for renewal of the same;

2. allow applicants to pay for the submitted applications and receive e-generated receipts;

3. provide for the online issuance of the various permits.

ii) providing guidelines on the conduct of safety and health audits and inspections by the Directorate’s experts including (i.e. require such experts to have appropriate protective wear such as masks and gloves and where appropriate hand sanitizers and to require the Directorate’s experts to observe social distancing measures while conducting the inspections;

Given the various health and safety requirements that an employer is required to put in place at the workplace provided under the OSHA, the Directorate should also provide specific guidelines on the appropriate safety and health measures that employers in various sectors (specifically in construction sites) should put in place to mitigate the spread of COVID-19.


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S. 44 (1) and Fourth Schedule: An application for a certificate of registration of premises is done through a written notice containing particulars set out in the Fourth Schedule. S. 44(2) and Fifth Schedule: a certificate of registration of work place is issued in the form set out in the Fifth Schedule.

These measures could include:

i) the provision of appropriate protective gear such as face masks and hand sanitisers;

ii) ensuring that workers maintain a reasonable distance from each other (through working in shifts or rearranging work schedules to accommodate social distancing); and

iii) mandatory training of all employees on COVID related issues including prevention measures and guidelines issued by the World Health Organisation and the Ministry of Health.

h) Water Act, National Construction Act Environmental and Management Coordination Act and the National Environmental Tribunal Procedure Rules

The following bodies have been appointed as dispute resolution bodies under these Acts: i) The National

Environmental Tribunal

ii) The National Construction Appeals Board

iii) The Water Tribunal (together the Tribunals). Proceedings of each of these tribunals are

Physical submission of documents at the Tribunals & physical presence of the applicants during hearings

Rationale for proposed recommendation The current practices adopted by the Tribunals in relation to case management would not be practical due to the restrictions with respect to congregation of the public adopted by the Government to mitigate the spread of COVID-19. To adhere to the various directives and recommendations issued by the National

The respective Cabinet Secretaries should consider issuing practice directions on electronic case management in the Tribunals similar to those issued by the Chief Justice in Gazette Notice No 2357 relating to the following: i) E-filing and service of documents including

exemptions to this requirement in exceptional circumstances;

ii) Case entries and e-filing system; iii) Electronic payment of filing fees; iv) Electronic receipting; v) E-delivery of orders and judgements; and vi) Possibilities of conducting hearings by

zoom/skype or where necessary some


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conducted in venues where the physical presence of the parties is required and the filing of applications, issuance of summons to appear and court directions are involve physical documents and contact at the various tribunals.

Council on Administration of Justice and the safety measures put in place by the National Emergency Response Committee on Coronavirus, the Tribunals would need to consider adopting electronic case management of the cases presented before them.

proceedings may be held in open places in order to maintain the required social distance.


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12 FINANCE

12.1 Companies Act, No. 17 of 2015.



a) Companies Act, No. 17 of 2015.

S. 885 (1) and (2): a company that creates a security in Kenya is required to present the charge for registration at the Companies Registry 30 days from the date of its creation or 21 days from the date when such document was received in Kenya.

Timelines and the consequential penalties for non-compliance. Disincentive for banks to lend money to enable businesses to continue. Rationale for proposed amendment Due to restricted access to registries and general movement within the country, the Companies Registry has been operating at a scaled down capacity. While we understand that the Business Registry Service (which oversees the operations of the Companies Registry) has released operational directives setting out a business continuity plan for service delivery following the government directives on control of the spread of COVID-19, we have no visibility on when normal operations will resume and therefore it is anticipated that there will be delays in service delivery. Prescribing that the period between the date when the Companies Registry was closed for normal operations until after the GOK End of COVID Gazette Notice is published should not be factored when computing the time period under section 885 of the Companies Act in case of any delays or difficulties in registration of securities at the Registry. The penalties for non-

We recommend that: i) the requirement to present the documents for

registration within 30 or 21 days (as the case may be) be suspended for the duration of the COVID-19 pandemic in Kenya and the time prescribed should therefore run from the date the GOK End of COVID Gazette Notice is published;

ii) the period between the closure of the Companies Registry (16 March 2020) until the date the GOK End of COVID Gazette Notice is published should not be factored when computing the time prescribed under section 885 of the Companies Act. The time prescribed for registration of charges should therefore run from the date the GOK End of COVID Gazette Notice is published; and



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compliance should also be waived in the interim period.

b) Companies Act, No. 17 of 2015.

S. 888: a company that fails to register a charge before the statutory timelines of 30 days or 21 days as set out in (a) above, is required to seek an order from the High Court in order to extend the deadline for registration.

Onerous compliance requirements. Rationale for proposed amendment In light of the scaled down operations of the Companies Registry and increasingly restrictive social distancing measures being implemented across the country to reduce the spread of COVID-19, it is anticipated that companies seeking to register charges may not meet the deadline for registration.

In the event this happens, the requirement to seek a court order is onerous given that the court process in Kenya is generally time and resource consuming even outside the COVID-19 pandemic. In any event, the judicial system is also currently operating at a significantly scaled down capacity and only matters where parties demonstrate extreme urgency are being dealt with.

The amendment would seek to suspend the onerous requirement to seek a court order in the event the statutory timelines are not met.

We recommend that the requirement to seek a court order to extend the deadline for registration of securities is waived until after the GOK End of COVID Gazette Notice is published. Alternatively, the power can be given to accessible officials (e.g. registrars at the Companies Registry who should be designated to render such services).


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12.2 Land Registration Act, No. 3 of 2012.

Please refer to our recommendations above under the Real Estate section for proposed amendments to this statute which equally apply to this Finance

section.

12.3 Stamp Duty Act, Chapter 480.



a) Stamp Duty Act, Chapter 480

S.6: registrable instruments must be lodged for stamping within a period of 30 days from the date of execution or in the case of a foreign document, from the date the document is brought into Kenya. The failure to stamp a document can result in the document being declared inadmissible as evidence in any court proceedings, the inability to register the document (section 19 of the Stamp Duty Act), there are penalties payable for late payment of stamp duty (section 20(2) of the Stamp Duty Act).

Timelines and the consequential penalties for non-compliance. Rationale for proposed amendment The Collector of Stamp Duties is stationed at the Land Registry and as such, is affected by the nationwide closure of land offices and land registries. This means that registrable documents and other instruments that require stamping may not be lodged for assessment and stamping within the required statutory timelines. Although the Act has been recently amended to permit electronic stamping there is no guidance yet on how this will work in practice.

Prescribing that the period between the closure and the publication of the GOK End of COVID Gazette Notice should not be factored when calculating the thirty (30) day statutory period under the Stamp Duty Act is meant to accommodate instruments that had been executed and were within the prescribed thirty (30) day period, but had not yet been lodged for

We recommend that: i) the requirement to stamp documents within 30

days be suspended for the duration of the COVID-19 pandemic in Kenya until the date the GOK End of COVID Gazette Notice is published;

ii) the period between the closure of the Land Registry (17 March 2020) until the date the GOK End of COVID Gazette Notice is published should not be factored when computing the time prescribed under the Stamp Duty Act; and



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assessment and payment of stamp duty by the date of the closure of the Land Registry (17 March 2020).

The waiver of stamp duty penalties for late assessment and payment of stamp duty is also meant to accommodate instruments executed during the COVID-19 pandemic and should take into account any extension of the closure of the Land Registry.

a) The Stamp Duty Act (Cap 480, Laws of Kenya)

s.10A (1): the Collector of Stamp Duties shall refer to the Chief Government Valuer or a registered and practicing valuer appointed by the Chief Government Valuer any conveyance or transfer on sale of any immovable property before or after registration of the relevant instruments in order to determine the true open market value of such property as at the date of the conveyance or transfer for purposes of ascertaining whether any additional stamp duty is payable.

The Collector of Stamp Duties is required to carry out a physical inspection of the property being disposed of in order to determine the market value. Rationale for proposed amendment One of the key challenges in achieving this is the current emphasis on social distancing to prevent the spread of COVID-19. Although, the Stamp Duty Act has set out the rate of Stamp Duty that is payable in respect of various transactional documents, the rate is to be applied to the market value which would normally be determined by the Government Valuer. In order to ease the completion of a transaction, the use of available records on valuation of properties in the same area could be considered to arrive at the market value of the property and

We recommend that all government physical site valuations are suspended during the pandemic. As proposed above, stamp duty should be payable within three (3) months from the GOK End of COVID Gazette Notice is published. The use of available records on valuation of properties in the same area could be applied in determining the value of the property.


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the physical site visit as part of the valuation process should be suspended during the pandemic.

12.4 Land Control Act, Chapter 302

Please refer to our recommendations above under the Real Estate section for proposed amendments to this statute which equally apply to this Finance section.


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13 WILLS AND SUCCESSION

13.1 Law of Succession Act, Cap 160



a) Law of Succession Act, Cap 160

S.9 (1): no oral will shall be valid unless (a) it is made before two or more competent witnesses; and (b) the testator dies within a period of three months from the date of making the will.

Oral will. Rationale for proposed amendment In view of the social distancing and isolation requirements during the COVID-19 pandemic, it may not be possible to meet the statutory witnessing requirements for a will under the Law of Succession Act.

We recommend that the requirements of an oral will be relaxed so that it would include: i) a will that is read out during a video conference or

any other virtual technology is considered to be a valid oral will;

ii) the witnesses can be present on the video conference;

iii) the reading of the Will should be recorded; and

iv) one witness suffices during the COVID-19

pandemic.

b) Law of Succession Act, Cap 160

S.9(2): no oral will shall be valid if, and so far as, it is contrary to any written will which the testator has made, whether before or after the date of the oral will, and which has not been revoked as provided by sections 18 and 19.

Oral will. Rationale for proposed amendment In view of the current travel lockdown globally and the general social distancing and isolation requirements, it is possible that many existing Wills are not accessible by the testator and therefore cannot be revoked by physically tearing them or destroying them.

We recommend that any oral will that is made during the COVID-19 pandemic takes precedence over any written Will made by a testator in the past provided that the testator verbally revokes the written Will when making the oral will. Upon expiry of ninety (90) days from the date the GoK End of COVID Gazette Notice is published, the validity of the oral will would expire and a new written will need to be drafted.


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c) Law of Succession Act, Cap 160

S. 11(c): a will must be witnessed by two (2) or more competent witnesses, each of whom must have seen the testator sign or affix his mark to the will, or have seen some other person sign the will, in the presence and by the direction of the testator, or have received from the testator a personal acknowledgement of his signature or mark, or of the signature of that other person. Each of the witnesses must sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

Witnessing of will. Rationale for proposed amendment In view of the social distancing and isolation requirements during the COVID-19 pandemic, it may not be possible to meet the statutory witnessing requirements of a written will under the Law of Succession Act.

We recommend the following amendments to the Law of Succession Act:

the written will can be signed by the testator in manuscript or by electronic signature;

i) one witness suffices during the COVID-19 pandemic;

ii) presence of the witness or witnesses to include presence via video conference or Skype or other virtual technology and thereafter the witness to sign a statement to confirm that he witnessed the will via remote or virtual means; and

iii) the witness statement to be signed in manuscript

or via electronic signature.

Upon expiry of ninety (90) days from the date the GoK End of COVID Gazette Notice is published, the validity of the written will would expire and a new written will need to be drafted.


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14 LITIGATION

14.1 Arbitration Act No 4 of 1995



a) Arbitration Act No 4 of 1995

S. 17 (6): a party aggrieved by a ruling by the tribunal on whether it has jurisdiction is required to make an application to the High Court within 30 days.

Application to High Court. Rationale for proposed amendment There is restricted access to court registries (or the registries have been largely closed and are not open for normal business) since the start of the COVID-19 outbreak in Kenya which has made it difficult or impossible for parties to file their pleadings through the manual process. There also practical challenges with the electronic filing and only urgent and time bound matters are accepted for filing. On 1 April, 2020 the Chief Justice issued directions suspending all court proceedings apart from urgent and essential matters, and therefore parties many not be able to file matters that are not considered urgent or essential.

We recommend that the requirement to make an application before the High Court within 30 days from the date the tribunal delivered its ruling be suspended during the existence of the COVID-19 pandemic in Kenya and the timelines to do so be extended for 30 days from the date when the GoK End of COVID Gazette Notice is published.

14.2 Public Authorities Limitation Act Chapter 39, Laws of Kenya



a) Public Authorities Limitation Act Chapter 39

S. 3 (2): a claim against the Government founded on contract must be filed before the end of 3 years

Timelines. Rationale for proposed amendment There has been restricted access to court registries (or the registries have been largely closed and are not

We recommend that in the event that the limitation period for filing a claim founded on contract against the Government is set to lapse during the duration of the COVID-19 pandemic in Kenya (that is starting from the date that the


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from the date the cause of action accrued.

open for normal business) since the start of the COVID-19 outbreak in Kenya which has made it difficult or impossible for parties to file their pleadings through the manual process. The Electronic Case Management Practice Directions, 2020, has introduced the electronic filing and electronic service of pleadings but the programme is still being rolled out and parties continue to experience practical difficulties with the electronic filing.

Chief Justice issued directives scaling down court activities), the limitation period be extended for a period of 90 days after the date on which the GoK End of COVID Gazette Notice is published.

14.3 The Environmental Management and Co-Ordination Act, 2003 and The National Environmental Tribunal Procedure Rules, 2003



a) The Environmental Management & Co-ordination Act, 1999 (EMCA )

S. 126 (2)(4): provides that the ‘proceedings of the Tribunal shall be open to the public save where the Tribunal, for good cause, otherwise directs.’

Proceedings to be open to the public. Rationale for proposed amendment Proceedings should not be open to the public owing to the on-going COVID-19 pandemic. The National Environmental Tribunal needs to suspend public sittings.

We recommend that: i) the proceedings of the Tribunal be

conducted via audio/video conference with the relevant parties until such a time when the COVID-19 pandemic is contained and the Government of Kenya issues relevant directives to that effect;

ii) only matters filed under certificate of urgency may be heard via video/audio conferencing and ruling delivered electronically. In the event of technological challenges, the Tribunal may consider adopting the measures outlined by the National Council on the


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Administration of Justice on 15 March 2020, such as holding hearings in the open with only the relevant parties present.

b) The Environmental Management & Co-ordination Act, 1999 (EMCA )

S. 129: an appeal to the Tribunal is to be made within sixty (60) days in a manner prescribed by the Tribunal.

Timelines. Rationale for proposed amendment Parties aggrieved by a decision under EMCA may not be in a position to file an appeal at the Tribunal within sixty (60) days in the current prevailing conditions.

We recommend the suspension of 60 days filing timelines at the Tribunal during the existence of the COVID-19 Pandemic in Kenya and the timelines to do so be extended for 60 days from the date when the GoK End of COVID Gazette Notice is published.

14.4 Energy Act (the Energy and Petroleum Tribunal)



a) Energy Act S. 32 and 38: Proceedings of the Energy and Petroleum Tribunal (the Energy Tribunal) are conducted in venues where the physical presence of the parties is required. This section also provides that the Energy Tribunal shall conduct its proceedings without procedural formality but

Physical presence of the applicants before the Tribunal. Rationale for proposed recommendation

Operations in the legal justice sector have been severely impacted by Covid19-related lockdown measures. Courts are on minimal operation mode throughout the country. Therefore, in line with the various directives and recommendations issued by the National Council on

We recommend that the chairperson of the Energy Tribunal should, with the approval of the Cabinet Secretary for Energy, issue practice directions on electronic case management in the Energy Tribunal similar to those issued by the Chief Justice in Gazette Notice No 2357 relating to the following: iv) E-filing and service of documents including

exemptions to this requirement in exceptional circumstances;

v) Case entries and e-filing system; vi) Electronic payment of filing fees; vii) Electronic receipting;


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ought to observe the rules of natural justice and rules of evidence

Administration of Justice and the safety measures put in place by the National Emergency Response Committee on Coronavirus, the Energy Tribunal should consider the electronic case management of the applications submitted to it.

viii) E-delivery of orders and judgements; ix) Possibilities of conducting hearings by video call

(Zoom/Skype) or where necessary some proceedings may be held in open places in order to maintain the required social distance.

The Secretary to the tribunal as appointed under Section 30 of the Energy Act may categorise such urgent applications which require to be heard as a matter of priority.

14.5 Environment and Land Court, 2011



a) Environment and Land Court, 2011

S.16 (A) (1): all appeals from subordinate courts and local tribunals shall be filed within a period of thirty days from the date of the decree or order appealed against.

Timelines. Rationale for proposed amendment There may be practical challenges in filing appeals at the ELC within thirty (30) days especially for decisions rendered during this period.

We recommend that this requirement be suspended during the existence of the COVID-19 pandemic in Kenya and the timelines be extended by 30 days from the date when the GoK End of COVID Gazette Notice is published.

14.6 Limitation of Actions Act, Cap. 22, Laws of Kenya



a) Limitation of Actions Act, Cap 22, Laws of Kenya

Actions of Contract and Tort and Certain Other Actions S. 4(1): actions founded on contract, to enforce a

To avoid expiry of causes of action caused by the pandemic disruption Rationale for proposed amendment Owing to the restrictions on matters to be filed, a number of causes of action which will accrue or

We recommend that: i) the limitation attached to actions under

Part B be extended by a period of 6 months, and any actions that may accrue during the pendency of the pandemic be admitted for the extended period of 6


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recognizance, to enforce an award, to recover a sum recoverable by virtue of a written law, actions claiming equitable relief, may not be brought after the end of 6 years after the date on which the cause of action accrued. S. 4(2): actions founded on tortious claims may not be brought at the end of 3 years from when the cause of action accrued. S. 4(3): actions for account may not be brought be brought in respect of any matter arising more than 6 years before the commencement of the action. S. 4(4): actions brought on a judgment are limited to 12 years from the date the judgment was delivered. S. 4(5): actions to recover penalty or forfeiture or a

crystallise during this pandemic period may be precluded from being filed leading to the limitation of such actions once this period is over, without the fault of the affected party. This includes the deadlines set out in the provisions listed. An amendment to this section would allow such parties whose causes of action may accrue during the pandemic the opportunity to file suit once the situation normalises. Limitation of such actions should be extended by a period of 6 months, subject to how long the disruption persists.

months after the date on which the Government of Kenya (GoK) End of COVID Gazette Notice is published; and



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sum arising therefrom is limited to two years after the date on which the cause of action arose.

b) Limitation of Actions Act, Cap 22, Laws of Kenya

Actions to Recover Land and Rent S. 7: actions to recover land cannot be brought at the end of 12 years from the date the cause of action accrued. S. 8: actions to recover rent are limited to 6 years from the date the arrears became due.

To avoid expiry of causes of action caused by the pandemic disruption. Rationale for proposed amendment Owing to the restrictions on matters to be filed, a number of causes of action which will accrue or crystallise during this pandemic period may be precluded from being filed leading to the limitation of such actions once this period is over, without the fault of the affected party. This includes the deadlines set out in the provisions listed. An amendment to this section would allow such parties whose causes of action may accrue during the pandemic the opportunity to file suit once the situation normalises. Limitation of such actions should be extended by a period of 6 months, subject to how long the disruption persists.


Part C be extended by a period of 6 months, and any actions that may accrue during the pendency of the pandemic be admitted for the extended period of 6 months after the date on which the GoK End of COVID Gazette Notice is published; and


c) Limitation of Actions Act, Cap 22, Laws of Kenya

Actions to Recover Money Secured by a Mortgage or Charge or to Recover Proceeds of Sale of Land

To avoid expiry of causes of action caused by pandemic disruption. Rationale for proposed amendment


Part D be extended by a period of 6 months, and any actions that may accrue during the pendency of the pandemic be


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S. 19: an action to recover a principal sum secured by a mortgage or to recover proceeds of sale of land may not be brought after the end of 12 years from the date when the right to receive the money accrued.

Owing to the restrictions on matters to be filed, a number of causes of action which will accrue or crystallise during this pandemic period may be precluded from being filed leading to the limitation of such actions once this period is over, without the fault of the affected party. This includes the deadlines set out in the provisions listed. An amendment to this section would allow such parties whose causes of action may accrue during the pandemic the opportunity to file suit once the situation normalises. Limitation of such actions should be extended by a period of 6 months, subject to how long the disruption persists.

admitted for the extended period of 6 months after the date on which the GoK End of COVID Gazette Notice is published; and


d) Limitation of Actions Act, Cap 22, Laws of Kenya

Actions in Respect of Trust Property or Movable Property of a Deceased Person S. 20(2): action by a beneficiary to recover trust property may not be brought after the end of six years after the date on which the right of action accrued

To avoid expiry of causes of action caused by pandemic disruption Rationale for proposed amendment Owing to the restrictions on matters to be filed, a number of causes of action which will accrue or crystallise during this pandemic period may be precluded from being filed leading to the limitation of such actions once this period is over, without the fault of the affected party. This includes the deadlines set out in the provisions listed. An amendment to this section would allow such parties whose causes of action may accrue during the pandemic the opportunity to file suit once the situation normalises.


Part E be extended by a period of 6 months, and any actions that may accrue during the pendency of the pandemic bet admitted for the extended period of 6 months after the date on which the GoK End of COVID Gazette Notice is published; and

ii) all the penalties and other liabilities for non-compliance are waived for the duration of the COVID-19 pandemic until the GoK End of COVID Gazette Notice is published.


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Limitation of such actions should be extended by a period of 6 months, subject to how long the disruption persists.

14.7 Supreme Court Rules, 2012



a) Supreme Court Rules, 2012

Rule 11: respondents are required to file responses to the Petition within fourteen days of service of thereof.

Timelines and the consequential penalties for non-compliance. Rationale for proposed amendment Owing to the difficulty in accessing the Court’s registry and the limitation of the types of filings allowed due to pandemic related restrictions that have affected the Court’s normal operations, it would only be just and in furtherance of Articles 48, 50 and 159 of the Constitution in dispensing justice to the people of Kenya to extend such timelines or in some cases suspend them entirely.

We recommend that: i) the requirement to file responses be

limited to matters that are extremely urgent and deemed so by the Court in the first instance; and

ii) if filing is deemed necessary, the timeline for doing so be extended from 14 days to at least 30 days upon service and such directions be adhered to until the date on which the GoK End of COVID Gazette Notice is published.

b) Supreme Court Rules, 2012

Rule 15: Scheduling conference (1) A party is required to submit to the Registrar a scheduling

Timelines and the consequential penalties for non-compliance. Rational for proposed amendment There is a two pronged issue with these provisions in the current circumstances. First is with regard to the

We recommend that: i) the requirement to file preliminary

documents such as the scheduling and pre-trial questionnaires be limited to matters that are extremely urgent and


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questionnaire within 7 days after the close of pleadings; (2) The Registrar is required, within 3 days of receiving the filled-in questionnaire, to convene a scheduling conference inter alia give directions on hearing of the Petition; (3) The presiding judge of the Court shall, within 7 days after the registrar certifies that the parties have complied with the directions made at the scheduling conference, convene a pre-trial conference in order to determine preliminary matters.

timelines, which are far too short given the almost entire closure of the registry. Secondly, there has been a suspension of physical hearings. There should be an extension of the timelines within which the pre-trial directions will be given and preliminary matters dealt with. This should only be applicable to matters of extreme urgency. With regard to hearings, the Court should give case by case directions on scheduling conferences and pre-trial meetings, determining whether in the circumstances, a virtual conference and meeting would be best or in exceptional circumstances, whether physical conferences may be held with strict observance of precautionary measures.

deemed so by the Court in the first instance; and


c) Supreme Court Rules, 2012

Rule 16 (1): filing of List of Authorities within an unspecified timeline

Rationale as above. We recommend that: i) the requirement to file Authorities in

preparation for hearing be limited to matters that are extremely urgent and deemed so by the Court in the first instance; and


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ii) if filing is deemed necessary, the timeline

for doing so be extended by a period of at least 21 days and such directions be adhered to until the date on which the GoK End of COVID Gazette Notice is published.

d) Supreme Court Rules, 2012

Rule 17: hearing in Court The Registrar is required to give all parties a notice of not less than 7 days hearing notice. The hearing shall either be in open court or in chambers as the Court may direct.

Mechanics of hearing proceedings Rationale for proposed amendment In light of the COVID-19 outbreak in Kenya and the directives issued encouraging the avoidance public spaces and practicing the concept of social distancing, Rule 17 (2) should be amended to allow for online hearings, or in very exceptional circumstances, physical hearings but with all strict precautionary measures being observed.

We recommend that pursuant to the provisions of Article 159 of the Constitution together with Articles 48 and 50, the Court should make provision for virtual hearings being conducted. If such provision is impossible or highly impractical, physical hearings should be allowed but subject to taking all necessary and strict precautions during the trial with regard to social distancing and appropriate gear.

e) Supreme Court Rules, 2012

Rule 20: judgment The Court is required to deliver a ruling or judgment within ninety days from the last day of hearing, unless the Court, for reasons to be recorded, orders otherwise.

Impracticability of delivering Judgments in person Rationale for proposed amendment: In light of the previously mentioned pandemic related directives, the Court may find it impossible to deliver rulings and judgments in person. The Court may then send softcopies of the certified decisions and deliver them virtually using video link facilities.

We recommend that the Court be permitted to deliver rulings and judgments, especially in matters that are extremely urgent, virtually using video link facilities and thereafter send soft copies of the certified decisions to the parties.


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f) Supreme Court Rules, 2012

Rule 21: Decrees and orders Within 14 days from the date of judgment or ruling, a party may prepare a draft order and submit it for the approval of the other party and who shall, within seven days of receiving the draft order approve it, with or without any changes; or reject it.

Timelines for filing. Rationale for proposed amendment as in a) above.

We recommend that the Court should extend each of the timelines for filing and exchange of draft orders and decrees by at least 21 days to allow for the delays caused by closure of the registries and advocates’ offices during the pandemic.

g) Supreme Court Rules, 2012

Rule 27: service of notice of motion Any person served with a notice of motion may lodge their response and within seven days serve a copy on the applicant.

Timelines for service. Rationale for proposed amendment as in a) above.

We recommend that parties should be allowed to serve their responses virtually, preferably by way of email owing to closure of most advocates’ offices. The timeline for such service should be extended by from 7 days to at least 14 days.

h) Supreme Court Rules, 2012

Rule 31(1): notice of Appeal A person who intends to appeal to the Court is required to file a notice of appeal within

Timeline for lodging an appeal to the Supreme Court from a subordinate court or tribunal Rationale for proposed amendment as in a) above.

We recommend that a party intending to appeal a decision of a subordinate court or tribunal should be allowed to lodge its notice of appeal within 30 days from the date of judgment or ruling. This should be limited to matters of extreme urgency that cannot await the end of the pandemic and the measures put in place.


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fourteen days from the date of judgment or ruling.

i) Supreme Court rules, 2012

Rule 32: Service of notice of appeal Within seven days of lodging a notice of appeal, the appellant is required to serve copies thereof on all other parties. Within fourteen days of receiving the notice of appeal parties are required to file a notice of address for service Within a further fourteen days serve a copy of the notice of address for service on every other person named in the notice of appeal.

Timelines for serving notice of appeal as well as responding thereto Rationale for proposed amendment as in a) above.

We recommend that the timelines for serving the notice of appeal as well those for responding to the notice be extended by at least 14 days. The Court should allow such service to be done virtually, preferably by way of email. This should be limited to matters of extreme urgency that cannot await the end of the pandemic and the measures put in place.

j) Supreme Court rules, 2012

Rule 33: nstitution of appeals Within thirty days of filing the notice of

Timeline for lodging substantive appeal documents Rationale for proposed amendment as in a) above.

We recommend that the timelines for filing the Petition and Record of Appeal should be extended from 30 to 60 days. Parties should be allowed to file these documents virtually. This should be limited to matters of extreme urgency


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appeal where the appeal is as of right, or within thirty days after the grant of certification where such certification is required, a party shall file its Petition and Record of Appeal.

that cannot await the end of the pandemic and the measures put in place.

k) Supreme Court Rules, 2012

Rule 38: notice of Cross Appeal In lodging its cross-appeal, the Respondent is required to file its memorandum and record of appeal within 30 days of service on them or not less than 30 days before the hearing, whichever is later.

Timeline for filing cross appeal documents Rationale for proposed amendment as in a) above.

We recommend that the timelines for filing the Petition and Record of Appeal should be extended to 60 after service only. Parties should be allowed to file these documents virtually. This should be limited to matters of extreme urgency that cannot await the end of the pandemic and the measures put in place.


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14.8 Civil Procedure Act and Civil Procedure Rules Section 19 of the Civil Procedure Act provides that every suit shall be instituted in such manner as may be prescribed by rules. Section 2 of the Act defines “rules” as rules and forms made by the Rules Committee to regulate the procedure of courts. These are the Civil Procedure Rules, 2010. Therefore timelines for civil cases are set out in the Rules.



a) Civil Procedure Rules

Order 43 Rule 1 (3): applications for leave to appeal may be made orally (at the time of delivery of the ruling) or through a formal application within 14 days from the date of the decision.

As a result of the Covid-19 outbreak in Kenya, the courts have scaled down operations and are currently not open to the public parties and parties are not appearing in court to take rulings.

We recommend that where rulings are delivered through email, the ruling should include leave to appeal, if need be, to dispense with the requirement to make a formal application.

14.9 Appellate Jurisdiction Act and Court Of Appeal Rules

Section 5 (1) of the Appellate Jurisdiction Act provides that the procedure regulating appeals shall be set out in the Rules. The Court of Appeal Rules, 2010

set out the provisions on the procedure governing appeals to the Court of Appeal including the applicable timelines



a) Court of Appeal Rules

Rule 75(2): a party that wishes to lodge an appeal against a decision to the Court of Appeal to lodge a Notice of Appeal in the High Court within 14 days

As a result of the COOVID-19 outbreak in Kenya, the courts have scaled down operations and are currently not open to the public. Rationale for proposed amendment Parties are not able to physically lodge documents at the court registry or appear in court to make oral

We recommend that in cases where parties do not have access to electronic means, consideration should be given to suspending time for filing a Notice of Appeal and Record of Appeal until normal court operations resume and physical filing is possible.


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from the date of delivery of the decision. Rule 79 (1): a Respondent to an appeal is required to file and serve on the appellant a notice of address for service within 14 days of receipt of service of the notice of service. Rule 79 (2): a Respondent to an appeal is required to serve the notice of address of service on any other party to the appeal within 14 days from the date of its filing. Rule 82 (1): the record of appeal must be lodged in quadruplicate within 60 days from the date the notice of appeal was lodged. Proviso to Rule 82 (1): the period for preparation of a copy of the proceedings in the High Court is

applications and take directions. Currently the judiciary is delivering judgments and rulings electronically via video conferencing and email.

Consideration should also be given to extension of time for physical service of the Notice and Record of Appeal in the circumstances.


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excluded in computing time provided the request for such proceedings was made within 30 days from the date of the decision. Rule 90 (1): the appellant should serve the record of appeal on every respondent who has filed a notice of address of service within 7 days of lodging the record.

14.10 Tax Appeals Tribunal Act, 2013



d) Tax Appeals Tribunal Act, 2013.

S.18: empowers the Tribunal to stay the implementation of decision under a review. Parties may move the Tax Appeals Tribunal pursuant to the provisions of the Fair Administrative Actions Act in instances where

Parties will usually move the Tribunal by way of an application under Certificate of urgency for interim orders. Rationale for proposed amendment Although Parties may under the current circumstances still file these applications, there are no directions as to how the Tax Appeals Tribunal intends to dispense with them.

We recommend that directions be issued to enable the Tax Appeals Tribunal issue ex-parte orders electronically in instances where the aggrieved party is deserving pending an inter-partes hearing or the hearing of the main appeal on priority when normalcy resumes. In the alternative, the Tax Appeals Tribunal should make provision for electronic hearings of such applications.


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an administrative decision has been issued without reason or without following due process.

15 TAX

15.1 Our firm actively engaged in liaison with the National Treasury and the business community in respect of the recently proposed tax measures in

response to the COVID-19 pandemic. Please find annexed hereto the letter to the National Assembly dated 6 April 2020.


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ANNEXURE: LETTER TO NATIONAL ASSEMBLY ON TAX LAWS

Our Ref: DNG/KKN/GEN

Your Ref: TBA

Date: 06 April 2020

The Clerk’s Chambers

National Assembly, Parliament Buildings

P.O. Box 41842 – 00100, Nairobi, Kenya

Attention: Michael R. Sialai, EBS – Clerk of the National Assembly

Dear Sir,

RE: SUBMISSION OF MEMORANDUM ON THE TAX LAWS (AMENDMENT) BILL, 2020

We refer to your letter dated 1 April 2020 seeking comments on the consideration by the National Assembly to amend various tax statutes by enacting the

Tax Laws (Amendment) Bill, 2020 (the Bill). First, it is our recommendation that in order to allow adequate opportunity for public participation, in line with

the provisions of the Constitution of Kenya, that the Bill only deals with the tax measures introduced to mitigate the effects of Covid-19, in line with the

President’s address delivered on 25 March 2020.

The rest of the measures should follow the usual framework that exist with respect to enactment of tax measures in Kenya.

Secondly, we have set out our comments with respect to the Bill below:

1. Protecting incomes of low income employees

a. We welcome the lowering of the marginal tax rate on individual income from 30% to 25% (Income Tax Act, Third Schedule Head B) as well as

the increase in the annual personal relief from KES 16,896 to KES 28,800 (Income Tax Act, Third Schedule Head A).This effectively brings the

tax-free monthly income to KES 28,800 which we believe will cushion low income earners in these difficult times during the COVID-19

Pandemic.


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b. In light of this, and with a view to protecting this economically vulnerable group, we propose that the Committee reconsiders the deletion of

Paragraph 53 of the First Schedule to the Income Tax Act which provides that overtime pay, bonus pay and retirement benefits pay to persons

in the lowest PAYE bracket (of 10%), be exempt from tax.

2. Fostering foreign direct investment

a. Increase in non-resident withholding tax on dividends

We note that under paragraph 3(d) seeks to increase the withholding tax applicable on non-resident withholding tax from 10% to 15%. We

are of the view that this may lead to a shrinkage in the foreign direct investment that Kenya relies on to grow its economy, as foreign investors

shy away from Kenyan equities in listed and private entities. We recommend that this proposed amendment is re-considered owing to its

potential adverse impact.

b. Green bonds

i. The Finance Act, 2019 amended the Income Tax Act to exempt from withholding tax, interest income accruing from all listed bonds,

notes or other similar securities used to raise funds for infrastructure, projects and assets defined under Green Bonds Standards and

Guidelines (Standards and Guidelines) and other social services provided that such bonds, notes or securities have a maturity of at

least three years. Green bonds as provided for in the Standards and Guidelines refer to a fixed income instrument, either unlisted or

listed on a securities exchange, approved by the Capital Markets Authority whose proceeds are used to finance or refinance new or

existing projects that generate climate or other environmental benefits that conform to green guidelines and standards.

ii. It was expected that the exemption from tax would encourage investments in green bonds in green projects which are carbon neutral.

However, the Bill proposes to amend the Income Tax Act by deleting the provision that provides for exemption from tax for interest

income from green bonds. In effect, if the Bill is enacted into law, interest income from green bonds will be subject to withholding

tax.


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iii. The withholding tax exemption became effective on 1 January 2020 and subsequently Kenya’s first green bond worth approximately

KES 4.3 billion was listed for trading on the Nairobi Securities Exchange. We are of the view that the policy motive of the current

exemption status on Green Bonds is noble and justified in the circumstances but sufficient time ought to be given before a critical

mass of investors leverage this exemption.

c. Special economic zones and industrial parks

i. We note the proposed deletion of paragraph 46 of the First Schedule to the Income Tax Act – exempting dividends received by a

licensed SEZ entity and paragraph 55 of the First Schedule to the Income Tax Act – exempting dividends received by a non-resident

person from a licensed SEZ entity. This is particularly the case because there is also a proposal to increase withholding tax on non-

resident dividends from 10%-15% (Paragraph 3 (d), Third Schedule, Head B to the Income Tax Act). We hold the view that these

amendments may have an adverse impact on the attractiveness of Kenya’s SEZ regime and meeting Kenya’s export goals.

ii. Currently, under paragraph 55 of the First Schedule of the Value Added Tax Act, 2013 – Section A, Part I - taxable goods purchased or

imported for direct and exclusive use in the construction and infrastructural works in industrial parks, is exempt from VAT. The Bill

proposes to make these goods taxable at 14%, which we believe will have an adverse impact on industrialization.

3. Capital Gains Tax Exemptions

a) The First Schedule to the Income Tax Act provides for two important exemptions, namely:

i. a CGT exemption a private residence if the individual owner has occupied the residence continuously for the three-year period

immediately prior to the transfer; and

ii. a CGT exemption where the land sold has a value of less than KES 3 million (approx. USD 30,000) or consists of agricultural land

outside a municipality and which is less than 50 acres in size.

The Bill proposes to delete paragraph 35 of the First Schedule to the Income Tax Act, which will, in effect, abolish these two exemptions.


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We are of the view that these exemptions should be retained, for the following reasons:

a) the private residence exemption exists in almost every country where CGT exists, primarily because it is appreciated that people progressively

develop themselves over time through accumulation of capital in the form of their family home. When the time comes, home owners will sell

their home to aggregate funds to buy a new home, thereby continuously improving themselves. The abolishment of this exemption will greatly

damage long-term savings through acquisition of a home, and will go against the President’s Big Four agenda; and

b) most countries have a low end threshold that protects those who are making capital transactions of a low value. In Kenya, the National Treasury

recognized this need and amended the CGT threshold effective 1 January 2016 from KES 30,000 (approx. USD 3,000) (which was the relevant

figure in 1985 when CGT was abolished) to KES 3 million (approx. USD 30,000). Similarly, the acreage was reduced from 100 acres of agricultural

land to 50 acres. This exemption should be retained in line of the Government’s earlier policy to protect the capital of the lower income categories

in Kenya.

4. Value Added Tax - Transfer of Business as a Going Concern

a) The Bill proposes to delete paragraph 94 of the First Schedule to the VAT Act, 2013 which provides that a Transfer of Business as a Going Concern

is exempt from VAT. This provision should be retained for the following reasons:

i. This provision is usually applied by companies undertaking internal restructuring exercises which do not involve a transfer of

property to third parties. Such restructuring transactions would usually qualify for stamp duty and CGT exemptions and it would

therefore only be fair if a VAT exemption continues to be available in such circumstances, where the criteria set out under the

law has been fulfilled; and

ii. Withdrawal of this exemption would increase transaction costs by at least 16% and could be a barrier for foreign investors who

would like to acquire existing businesses in Kenya due to the additional cash flow implications.

5. Energy Sector

a. The Bill proposes to abolish a number of tax incentives enjoyed by independent power producers (IPPs), namely:


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i. VAT exemption on importation of taxable supplies for construction of a power generating plant to supply electricity to the national

grid;

ii. VAT exemption on specialized equipment for the development and generation of solar and wind energy, including deep cycle

batteries which use or store solar power;

iii. 100% or 150% investment deduction on capital costs incurred in the construction of a power generating plant; and

iv. Exemption from compensating tax.

b. We are of the view that these tax incentives and exemptions should be retained in the VAT Act and the Income Tax Act, for the following

reasons:

i. IPPs which have signed Power Purchase Agreements (PPA’s) with Kenya Power are usually granted a Letter of Support by the

Government of Kenya (GoK), pursuant to which, the GoK undertakes to compensate IPPs on occurrence of events such as any changes

in the tax legislation which result in the IPPs being in an unfavorable financial position. It is therefore the case that, if these proposed

changes are passed into law and these incentives and exemptions are withdrawn, the IPPs are likely increase the tariffs at which

electricity is sold to KPLC, which will ultimately result in an increase in the cost of power in Kenya, as the increase in tariffs will be

passed on to the final consumer. In addition, GoK is likely to receive a number of compensation claims from the IPPs, in the event

that the PPA does not provide adequate financial compensation to the IPPs. It is therefore the case that, any tax which is suffered by

the IPPs as a result of withdrawal of the tax incentives and exemptions would not only result in a higher financial burden to consumers

and the GoK but would also significantly impair the growth of key sectors such as manufacturing which depend on reliable and

affordable power; and

ii. Withdrawal of these incentives would have a detrimental effect on the development of large-scale infrastructure projects in the

country and will stifle investor confidence and growth. This is because the financial returns which investors would ordinarily make on

these capital intensive and high risk investments would be significantly impaired as a result of imposition of additional taxes which

would reduce the net earnings derived from Kenya. Foreign investors are therefore likely to channel their investments to other

jurisdictions which have regimes that incentivize infrastructure investment.

6. Promoting a clean environment


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We note that various exemptions available to biogas digesters and plastics recycling plants have been proposed to be subject to VAT at the standard

rate of 14%. We would propose that the items are zero rated instead.

Legal provision Value Added Tax Act

Goods Current tax status

Proposed amendment

A&K recommendation

Paragraph 52 of the First Schedule (Section A Part I) to the VAT Act

Plastic biogas digesters

VAT exempt Taxable at 14% Zero rate for VAT


biogas VAT exempt Taxable at 14% Zero rate for VAT

Paragraph 53B of the First Schedule (Section A Part I) to the VAT Act

Leasing of biogas producing equipment


Legal provision Income Tax Act

Corporate tax status Proposed amendment

A&K recommendation

Paragraph 2(l) – Third Schedule (Head B) – Income Tax Act

15% corporate tax for any company operating a plastics recycling plant from the first year of commencement of operations

Increase this rate to 30%

Retain current lower tax rate

We believe that the recommendations above will promote the use of biogas as an alternative fuel and encourage recycling within the country, where

there is an urgent need for solutions in the solid waste management space.

7. Securing food security

We note the following proposed amendments impacting the agricultural sector:


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Legal Provision Value Added Tax

Goods Current tax status

Proposed amendment

A&K recommendation


Fertilisers VAT exempt Taxable at 14% Zero rate for VAT


Materials for animal feeding



Tractors and semitrailers



Inputs or raw materials locally purchased or imported by manufacturers of agricultural machinery and implements



Inputs for pesticide manufacture



Equipment for grain storage



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Taxable goods supplied marine fisheries and fish processors


We recommend that these supplies be made zero rated for VAT purposes so that suppliers are able to claim VAT on their purchases where they are

sourced locally. Where these goods are imported, the zero rated status may reduce shelf prices of the goods above.

8. Securing universal healthcare

We note that Part C of the Second Schedule to the VAT Act has been repealed and moved to the First Schedule, meaning that certain medicines and

vaccines are proposed to be VAT exempt.

When the goods are zero rated, this allows the supplier to net off any input VAT incurred in production of the goods, allowing for the cost of these

goods to remain low. The effect of the proposed introduction of the exempt status is that the cost of manufacturing medicines and vaccines locally is

likely to increase as suppliers will not be able to claim full input VAT. In a bid to encourage local manufacture of medicines and vaccines, this proposal

could be re-considered. However, if these medicines and vaccines are exclusively imported, their VAT exempt status may lead to a reduction in shelf

prices.

We recommend that the current zero rated status is maintained.

9. Infrastructure bonds

The Bill proposes to subject interest on infrastructure bonds to withholding tax. In our view, this would not be in the best interest of the Kenyan

Government, for the following reasons:


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(a) Infrastructure bonds allow the Government to undertake development work and therefore the repayment period of the bonds is usually very

long (usually over 15 years). For this reason, infrastructure bonds are tax free so as to attract longterm investors. A change of tax rate will make

these bonds unattractive to investors thereby harming the potential for infrastructure projects by the Government;

(b) the investors who bought the bonds had a legitimate expectation that the tax regime applicable to infrastructure bonds would not be changed

over the period they held the bonds. This change of tax rate could expose the Government to potential litigation;

(c) if the tax regime is changed, investors will not trust the Government’s tax regime advertised in respect of bonds in the future. This will have a

longterm impact on attractiveness of bonds issued by the Government of Kenya;

(d) a significant number of holders of infrastructure bonds are international investors. The effect of introducing this tax rate may result in negative

international perceptions, resulting in lower international ratings of Kenyan bonds, to the disadvantage of the country as a whole.

We would recommend that this proposal is not implemented with respect to infrastructure bonds.

We remain available to clarify our comments and would like to register our gratitude for the opportunity to give our views on this important proposed

legislation. Meanwhile should you require any clarifications, please do not hesitate to contact Ken Njuguna ([email protected]) or myself

([email protected]).

Yours sincerely,

For and on behalf of Anjarwalla and Khanna LLP

cc: Ms. Leah W. Mwaura – Committee Clerk – Departmental Committee on Finance and National Planning

mailto:[email protected]

mailto:[email protected]