Challenging Summons for Information from CMA is Premature – CMA Tribunal

Capital Markets, Litigation

On Thursday 19th September 2024, the Capital Markets Tribunal under the chairmanship of Paul Lilan ruled that investigations carried out by the Capital Markets Authority (CMA) prior to issuance of a Notice to Show Cause are inquisitorial in nature. As such, persons aggrieved with the decision to investigate them ought to wait until CMA issues them with a Notice to Show Cause in order to demand to be furnished with reasons and particulars of the allegations against them. In this regard, they stated that they were guided by the judgement of the High Court (Lady Justice H.I. Ong’udi) in Hongo & 2 others vs Muthaura & 4 others (2022).

The Tribunal also held that the right to be given written reasons for the investigation under Article 47(2) of the Constitution arises if the right has been or is likely to be adversely affected by the administrative action. In other words, the act of investigating must have adversely affected the person’s right to fair administrative action or is likely to adversely affect their right to fair administrative action. In this regard, the Tribunal stated that in order to challenge the decision to investigate, persons under investigation need to show bias, procedural impropriety, ulterior motive, failure to take into account relevant matters, abuse of discretion or unreasonableness on the part of CMA.

Furthermore, the Tribunal ruled that CMA’s findings and recommendations on Corporate Governance with respect to a person under investigation cannot be used to determine an inquiry. The Tribunal stated that the inquiry and the evaluation on Corporate Governance are two distinct processes that are empowered by different sections of statute.

Additionally, the Tribunal ruled that an Advocate representing a party to proceedings can sign the Memorandum of Appeal even though Rule 4(3) of the Capital Markets Tribunal Rules 2002 states that

the Memorandum of Appeal shall be signed by the appellant, if the appellant is an individual, or by a director and the Chief Executive officer of the Corporation.

The Tribunal however acknowledged that an advocate signing a Statement of Facts will expose the advocate to the risk of being invited to the witness box. In this regard, the Tribunal opined that the Statement of Facts is equivalent to a witness statement.

For further info, contact Jillian Ndirangu or Peter Mumu.

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Igeria & Ngugi Celebrates Jillian Ndirangu’s Recognition as One of the Top 40 Under 40 Women 2024 by Business Daily

Achievements

Igeria & Ngugi Advocates is delighted to announce that our partner, Jillian Ndirangu, has been recognized as one of the Top 40 Under 40 Women 2024 by the Business Daily newspaper. This accolade highlights Jillian’s commitment to contribute to the legal profession in Kenya and beyond.

The recognition of Jillian Ndirangu as one of the Top 40 Under 40 Women 2024 by Business Daily is a proud moment for Igeria & Ngugi Advocates. This award not only underscores her outstanding achievements but also highlights the firm’s commitment to nurturing talent and fostering professional growth.

Jillian’s dedication, hard work, and exemplary leadership continue to inspire her colleagues and set a benchmark for excellence in the legal field. We at Igeria & Ngugi are proud to have Jillian as a partner and look forward to her continued contributions to the firm and the broader legal community.

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COMPETITION AUTHORITY OF KENYA CRACKING DOWN ON HIDDEN FEES

Bank And Financial, Legal Advice

The Competition Authority of Kenya (CAK) is cracking down on banks that impose charges on customers, charges that had not been previously disclosed to the customer. This is in line with the authority’s prerogative under Section 56(3) of the Competition Act, which states as follows: –

A person shall not, in the provision of banking, micro-finance, insurance and other services, impose unilateral charges and fees, by whatever name called or described, if the charges and the fees in question had not been brought to the attention of the consumer prior to their imposition or prior to the provision of the service.

CAK has accused some tier-one banks of providing misleading information to customers or failing to disclose additional charges to customers during lending, violating agreements with customers, and imposing unfair charges on customers. These practices have led to financial hardships, defaults in loan repayment, and damaged credit scores.

The move by CAK has come amid growing concerns by members of the public of additional and hidden charges imposed by lenders in the conduct of their business.

Previously, the banks handled complaints of this nature, often leading to dead ends. Now, with increased consumer education initiatives, borrowers are more aware of their rights and can escalate issues to the CAK for investigation.

The CAK investigates most of these cases; however, some are forwarded to the Central Bank of Kenya and the Insurance Regulatory Authority for further action.

This move by the CAK, aimed at improving information symmetry between banks and their customers, is a step towards fostering customer trust in banks and ensuring fairness in the banking sector.

For more information please contact

info@attorneysafrica.com

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REVISED STAMP DUTY RATES FOR GAZETTED URBAN AREAS AND MUNICIPALITIES

Land, Legal Advice

Pursuant to the Stamp Duty Act, the Ministry of Lands, Public Works, Housing and Urban
Development (“the Ministry”) has declared that on the transfer of land, the stamp duty payable by
purchasers on the list of gazetted urban areas and municipalities is now 4% of the value of the
property or land. This doubles the amount payable from the previous rate of 2%.


Stamp duty is tax that is imposed by the government on various legal instruments, including
instruments that affect property, assets and the transfer of land. Purchasers bear the obligation of
paying for stamp duty on the transfer of land. For example, when buying a house, apartment or piece
of land. The amount of stamp duty payable is calculated based on a percentage of the value of the
subject-matter.


The Ministry announced the new rates, which are to be implemented with immediate effect, via a
letter addressed to all Land Registrars on 5th April 2024. The directive will be implemented in various
cities and urban areas, such as Nakuru, Naivasha, Kiambu, Eldoret, Kisumu, Ngong, Kitengela and
Kajiado. We advise all affected parties, particularly those that are in the process of purchasing
property or land in these areas, to ensure they comply with the new directive.
Below is a table with the full list of Gazetted Urban Areas and Municipalities.

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LEGAL ALERT ON THE DRAFT ENERGY (ELECTRICITY MARKET,BULK SUPPLY, AND OPEN ACCESS) REGULATIONS, 2024

Bank And Financial, Legal Advice

      Introduction:

      On 21 February 2024, the Energy and Petroleum Regulatory Authority (EPRA) released the Draft Energy (Electricity Market, Bulk Supply, and Open Access) Regulations, 2024 (the Proposed Regulations). The Proposed Regulations are aimed at governing the electric power, coal, renewable energy, and petroleum subsectors. They apply to the generation, importation, exportation, transmission, distribution, and retail supply of electrical energy in Kenya.

      Key Objectives:

      The objectives of the Proposed Regulations are as follows:

      • providing guidance on reviewing the electricity market;
      • governing operations and management of the electricity market, open access, and bulk supply;
      • promoting competition, efficiency, reliability, and service quality;
      • ensuring non-discriminatory open access to enhance competition;
      • attracting investment in energy infrastructure; and
      • enhancing accountability, transparency, and efficiency in the electricity market.

      Key Provisions:

      We set out below some of the key provisions in the Proposed Regulations:

      • The Electricity Market Structure: The Proposed Regulations provide for the conduct of a market review to be conducted by EPRA in consultation with the Cabinet Secretary responsible for energy (the Cabinet Secretary). EPRA is also required to involve stakeholders in the energy sector while undertaking the market reviews and subsequent guidelines. This review should be done within 3 years. Subsequent reviews should be undertaken at least once every five (5) years. Upon conclusion of the market reviews, EPRA is required to publish a report in the Kenya Gazette within 30 days of concluding the review. The first market review will be essential in informing Kenya’s electricity market structure and design.Once the first report is gazetted, EPRA in consultation with the Cabinet Secretary to issue and gazette guidelines on the structure of the electricity market within 6 months after gazettement of the market report.
      • Open access: transmission and distribution licensees will be required to provide ‘non-discriminatory open access” to their transmission or distribution system. This will enable any other licensees or eligible consumers to use the systems, upon payment of wheeling or use of system charges and other prescribe fees. Consumers will also have the liberty of selecting their preferred retail suppliers provided that the consumer has not entered into two supply contracts for the same premises.
      • Minimum roles: The Proposed Regulations outline the minimum roles of a generation licensee, transmission licensee, distribution licensee, retail supply licensee, eligible consumers and system operators all in an effort to promote equity and fairness in Kenya’s electricity market.
      • Tariffs: The Proposed Regulations require EPRA to prescribe generation and retail tariffs and charges for network service, wheeling, use of system and ancillary services. Licensees will be required to apply to EPRA for approval for approval of tariffs which will take effect on the commercial operation date under the respective commercial agreement. Licensees will be able to recover capital costs, O&M costs, depreciation, return on equity, other finance costs and taxes from the tariffs.
      • Bulk Supply: The Proposed Regulations set out a framework for bulk supply. Under the Proposed Regulations bulk supply shall be the supply of electrical energy by a licensee to another licensee and not to a consumer. The format of the bulk supply application and agreement are prescribed by the Regulations.
      • Non-compliance sanctions: Offences and penalties under the Proposed Regulations include giving false and misleading information at application stage and failure to comply with the regulations, orders or prohibitions of the Authority. The proposed sanctions where one is found liable are both custodial and non-custodial.
      • Dispute resolution: The Proposed Regulations require that where there are disputes and/or complaints that the internal mechanisms provided under the complaints and dispute resolution regulations. Additionally, a person aggrieved or dissatisfied with the decision of the Authority may appeal the same at the tribunal and then the High Court within 30 days of the Tribunal’s decision.

      Stakeholder Engagement Workshop:

      EPRA has scheduled a stakeholder engagement workshop on 4March, 2024, at the Sarova Stanley Hotel in Nairobi, running from 8:00 a.m. to 3:00 p.m. The workshop aims to provide a platform for stakeholders to gain insights into the Proposed Regulations and to express their views. The proceedings will be accessible remotely through Zoom, YouTube, and Facebook.

      Public Participation:

      Stakeholders and members of the public are encouraged to actively participate in the regulatory process. The Proposed Regulations can be accessed here. Comments can be submitted through email at info@epra.go.ke or physically delivered to EPRA’s regional and headquarter offices.

      Conclusion

      The Proposed Regulations signify a significant step towards enhancing the regulatory framework in the energy sector, promoting transparency, competition, and efficiency. Stakeholder input is crucial in shaping the final regulations, and interested parties are encouraged to participate actively in the upcoming workshop and submit their comments for consideration.

      Note: This legal alert provides a general overview and is not a substitute for legal advice. Stakeholders are advised to review the full text of the Proposed Regulations for comprehensive understanding and seek professional advice as needed.

      For More Information Please Feel Free to Contact Us
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