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REGULATION AND PROTECTION OF CHILDREN’S DATA ON SOCIAL MEDIAPLATFORMS.

BACKGROUND:
TikTok Information Technologies UK Limited and TikTok Inc (TikTok) were fined £12,700,000 by
the Information Commissioner’s Office (ICO) for a number of data protection legislation
violations, including failing to use children’s personal data legitimately.

Despite its own policies prohibiting children under 13 from opening an account, the ICO
estimates that TikTok allowed up to 1.4 million UK children under 13 to use the site in 2020.

According to UK data protection law, organizations that provide information society services to
children under 13 must acquire parental or guardian agreements before using personal data
about them.

  • The UK General Data Protection Regulation (UK GDPR) was broken by TikTok between May2018 and July 2020 in the following ways, according to the ICO:
  • Offering its services to children under the age of 13 in the UK and processing their personal information without their parents’ or guardians’ permission;
  • Failing to adequately notify platform users about how their data is collected, utilized, and shared in a clear and understandable manner. Without that knowledge, platform users—especially young users were unlikely to be able to decide for themselves whether and how to interact with it;
  • Failing to make sure that the personal data of its UK users were handled fairly, lawfully, and in an open manner.

There has been a lot of controversy and heated debates on the use of this platform by minors.The majority of people believe this site is highly inappropriate for minors to use and believe. serious measures should be set in place to protect minors. This begs the question, does Kenya have laws or regulations to safeguard minors’ interests in online platforms such as Tik Tok?

KENYAN LEGAL FRAMEWORK

The Data Protection Act of 2019 defines sensitive personal data as revealing the names of a
person’s children. It further states that one cannot process the personal data of a child without
parental consent or unless it advances the best interests of a child. 2 Additionally, the Act states
that a data processor or controller should set in place mechanisms for age verification and
consent to process a child’s personal data namely;

  • Available technology;
  • Volume of personal data processed;
  • Proportion of such personal data likely to be that of a child;
  • Possibility of harm to a child arising out of the processing of personal data; and
  • Such other factors as may be specified by the Data Commissioner.

The are various harmful activities that can arise from the use of TikTok by minors which include;

  • Grooming – defined in the Children’s Act 2022 as the establishment of a relationship through electronic means to manipulate a child and facilitate sexual contact.
  • Online abuse, harassment, or exploitation in which minors may be subjected to cyberbullying and stalking from adults.
  • Child pornography – this is where a minor’s photos or images may be used and distributed for sexual purposes and is an offence as per the Computer, Cybercrimes and Misuse Act 2018.


These are some of the dangers that our children may be subjected to if online platforms such as
Tik Tok fail to set up and enforce regulatory mechanisms to protect them. However, it is evident
as per the issue in the United Kingdom, that these platforms are profit-based and will do
anything to gain more followers to boost its popularity and sales.

This is the main reason why the Office of the Data Protection Commissioner as established
under Section 5 of the Data Protection Act has the following powers;

  • Promote self-regulation among data controllers and data processors;
  • Conduct an assessment, on its own initiative of a public or private body, or at the request of a private or public body for the purpose of ascertaining whether the information is processed according to the provisions of this Act or any other relevant law;
  • Receive and investigate any complaint by any person on infringements of the rights under this Act;
  • Conduct inspections of public and private entities with a view to evaluating the processing of personal data.


The Data Protection Commissioner is thus mandated by law to ensure that TikTok and other
online platforms create mechanisms to protect the data of children using their platforms and
regulate the content that they view.

CONCLUSION

Kenya has the necessary legal framework to protect data of the minors. It is up to the Kenyan
public to raise issues or file a complaint against these online platforms if there are no
mechanisms to safeguard our children. Finally, the Data Protection Commissioner is legally
obliged to compel these platforms to protect children and raise punitive measures against
platforms that fail to do so.

REFERENCE

Data Protection Act 2019
Children’s Act 2022
Computer and Cybercrimes and Misuse Act 2018.

For More Information Please Contact
benson.ngugi@attorneysafrica.com
Gladys.kihara@attorneysafrica.com

Addressing Inefficiencies in Property Rate Collection and Unlocking Revenue Potential

The National Rating Act of 2024 marks a significant step in reforming Kenya’s property rating and valuation framework. This law was introduced to address long-standing issues, which have been holding counties back from earning their full potential. A study conducted in 2018 by the National Treasury, with the support of the World Bank, revealed that county governments had substantial unrealised revenue potential, particularly from property rates. This catalysed the introduction of a new law to replace the outdated Rating Act of 1963 and the Valuation for Rating Act of 1956, which had failed to align property rates with the rising market values.

The Rating Bill was initially passed by the National Assembly in October 2023. It then underwent amendments in the Senate before a mediated version was approved in November 2024. It received presidential assent on 4th December 2024, marking the beginning of a legislative journey aimed at unlocking the revenue potential of county governments.

The new law encourages the use of modern technology to make valuations more accurate and efficient, ensuring that property values reflect the current market rates. Counties are now required to review and update their valuation rolls every five years, with a possible two-year extension if approved by the county assembly. A valuation roll is a list of ratable properties showing owners, their addresses, locations of land, tenure, acreage and assigned value.

To streamline operations, the Act creates the Office of the Chief Government Valuer, which will offer expert guidance and strategies to counties and the national government to promote best-practice on handling various valuation issues. It further establishes the National Rating Tribunal, which will handle property disputes quickly within 60 days, fostering fairness and efficiency in adjudication processes. In addition, the Act introduces measures to ensure accountability and equity in revenue collection. Property owners are required to pay rates promptly, with counties empowered to enforce payment through notices and, if necessary, the seizure and sale of properties with unpaid rates after a 60-day notice period. However, property owners may apply for rate remission and applications not acted upon within 60 days are deemed approved, providing a safeguard against administrative delays.

Further, the law excludes freehold agricultural land from its scope, focusing instead on urban properties and other rateable properties. Counties are encouraged to consider different property categories such as residential, commercial or agricultural when determining rates, allowing for incentives that promote good land use. Counties can also employ the use of private valuers to expedite the preparation of valuation rolls, preventing backlogs and alleviating the workload on government valuers to ensure timely updates.

This new legal framework is designed to address inefficiencies that have previously cost counties billions of shillings in lost revenue. By aligning property rates with market values, fostering responsible financial management and promoting transparency and accountability, the Act is set to transform county revenue collection, enabling better delivery of services and infrastructure development for the benefit of citizens.

The Act establishes a flexible framework, allowing county governments to use one of four major methodologies for valuing properties, customized to their specific areas, as specified in Section 9(2) of the Act. This is not a one-size-fits-all strategy, and here are the options:

  1. Annual Rental Value: This method focuses on the potential rental income of your property. It considers either the actual rent you could get or the equivalent of comparable rents in the open market. As the Act defines it, “annual rental value” means the amount arrived at based on the actual annual rent realizable or the annual equivalent of comparable rents. This method is most relevant when your property is used for rental purposes.
  2. Area Rating: This is a straightforward approach that calculates rates based on the size of your land. Counties can use a flat rate, a graduated rate based on acreage, or a differential rate based on land use. As the Act defines it, “area rate” includes a flat rate, graduated rate or differential rate adopted by the county government. This method may appeal to owners of larger land holdings.
  3. Unimproved Site Value: This approach values the land as if it were vacant, without considering any buildings or improvements Sections 7, and 9(2)(c)]. In essence, “unimproved site value” is the value of vacant land that does not include the value of any improvements. This method highlights the raw value of your land.
  4. Combined Approach: This method blends the value of the land with the value of any improvements Sections 7, and 9(2)(d)]. This offers a more comprehensive approach.

Before any of these methods are implemented, county governments must seek public input Section 10(1). This is not a mere formality but a key opportunity for land owners to shape how their property rates are calculated. Notices about proposed methods will be published in the Kenya Gazette and in at least two newspapers of wide national and county circulation, and will be circulated through electronic media, ensuring you get at least 60 days to make your views known Section 10(2). As the Act states, “Prior to the adoption of any form of rating, the County Executive Committee member shall, issue a notice of not less than sixty days inviting comments from the members of public Section 10(1)

National Rating Tribunal

A key feature of this Act is the establishment of the National Rating Tribunal Section 39(1). This tribunal is will hear and determine appeals and objections related to property valuations and rates, aiming to resolve issues within six months. The Tribunal will not be bound by the rules of evidence in the Evidence Act Section 42(2). If you disagree with the Tribunal’s decision, you can appeal it at the Environment and Land Court.

On Exemptions:

Not all properties will be subject to rates. The Act exempts certain types of land, including properties listed under Section 38 which include:

• Land used exclusively for public purposes.
• Places of public religious worship.
• Cemeteries, crematoria, and burial grounds.
• Public health facilities.
• Public educational institutions and libraries

However, these exemptions do not extend to properties used for profit or for residential purposes Section 38(3). The Act also specifies that places of public religious worship with profit-earning ventures are only exempt for the place of worship and that rateable property leased for foreign embassies are still subject to rates if registered under the rateable owner.,

Paying Rates Consequences of Default

The County Executive Committee Member will determine when rates are due, and you will be able to pay through authorised bank accounts or electronic payment systems, or by any other means prescribed under Section 15(2), and 16(1). However, it’s crucial to pay on time as the Act introduces stricter enforcement measures for defaulters under Section 19(2). These measures can include penalties, denial of county services, or even the creation of a charge against your property under Section 19(2)(d).

Relief for Those Who Need It

If you’re struggling to pay your rates, the Act provides some routes for relief. You can apply for a remission of rates, where a portion or the whole of the rates may be reduced Section 17(1). There are also possibilities for discounts and waivers of interest and penalties, though these will have specific criteria set by each county under Section 18(1).

Public Land and Contributions

The Act also addresses the issue of public land, with provisions for contributions in lieu of rates under Section 20(1). The National Land Commission will create guidelines for including or excluding certain public lands from valuation rolls [20(2)].

What Does this Mean for You as a Property Owner?

  1. More clarity and consistency: The Act aims to create a more transparent and consistent system for property taxation Section3(a).
  2. Increased public participation: You have a greater say in the valuation process as prescribed in Section 10(1).
  3. A structured dispute resolution process: The National Rating Tribunal offers a formal avenue for addressing disagreements by the Tribunal established under Section 39(1).
  4. Potential changes to your tax liability: Depending on the new valuations, your property taxes might increase or decrease.
  5. Stricter enforcement: Be prepared for stricter measures if you fail to pay your rates as provided under Section 19(2).

In conclusion, this Act is a huge step towards modernizing property tax collection in Kenya. Keep a close eye on updates from your county, as they will be creating their own specific legislation and regulations to implement this Act. This change not only impacts property owners, but also shapes how property ownership and responsibility is understood in Kenya.

Analysis of the Business Laws – Amendment Bill

On 1st November 2024, the National Assembly published the Business Laws (Amendment) Bill, 2024 (“the Bill”) that seeks to amend several laws to enhance consumer protection, boost trade and manufacturing and harmonise our legal framework in the banking sector. We shall highlight and analyse the proposed amendments below and explore the positive and negative impact these changes may have on trade, businesses, manufacturers, financial institutions and potential local and international investors.

The Banking Act, Cap 488

The Bill proposes an amendment to Section 55 of the Banking Act by providing that the Central Bank of Kenya (CBK) can prescribe penalties on financial institutions, credit reference bureaus or any person that fails to comply with the provisions of the Banking Act, Prudential Guidelines or directions issued by the CBK. The CBK can impose penalties of up to Kshs. 20 million for institutions or credit reference bureaus, or an amount that is three times higher than the amount gained or loss avoided by failing to comply. This provision imposes stricter penalties that are aimed at enhancing overall compliance with the laws, rules and regulations that govern the operation of our banking sector.

The Second Schedule of the Banking Act may also be amended to increase the minimum core capital required to operate as a bank or mortgage finance company gradually from Kshs. 1 billion in 2024 to Kshs. 10 billion in 2027. Our current framework is out-of-date as it only sets out the core capital requirements until 31st December 2005. Therefore, this is a welcome amendment that promotes a stable market which aligns with the current growth of our financial industry and available banking products.

The Central Bank of Kenya Act, Cap 491

The proposed amendments to this Act largely broaden the definition of digital credit and digital credit providers by replacing it with non-deposit taking credit providers. The objective of this proposal is to cover all non-deposit taking credit providers, which includes digital lenders and peer-to-peer lenders. The CBK will also have the power to register, license and regulate non-deposit taking credit providers, including determining pricing parameters and prescribing a Code of Conduct that such entities must adhere to.

The Bill further increases the scope of the CBK’s regulatory powers by ensuring that the CBK licenses and monitors the operations of credit guarantee companies that are not currently regulated under any other written law. Credit guarantee companies typically act as guarantors to financiers by absorbing all or a part of the financier’s risk on a credit facility made to a Borrower in the event that the Borrower defaults on repayments.

Under the proposed law, the CBK will have the power to determine the capital adequacy standards, minimum liquidity requirements, anti-money laundering procedures, permissible and prohibited activities and corporate governance of the entity, including certifying whether a significant shareholder is a fit and proper person. Should this amendment pass, it’s crucial for the CBK to draft further regulations and directions on the requirements on the operations of credit guarantee companies. This ensures that there is further oversight and supervision over institutions operating in the financing sector to ensure standard levels of market conduct, transparency in credit dealing, integrity of our financial systems, and the prevention of predatory lending practices that protect borrowers.
Microfinance Act, Cap 493C.

The Bill proposes an amendment to Section 4A of the Act by including that a person cannot carry out any non-deposit taking microfinance business without being properly registered under the Companies Act and licensed under the Microfinance Act.

Additionally, non-deposit taking microfinance businesses would be obligated to furnish borrowers with accurate information on the procedure and conditions of loans, the cost implications and their rights and duties. They cannot collect additional fees, penalties or charges unless this is allowed under the agreement they have with borrowers.

The proposal also increases the duties these institutions owe to Borrowers because they cannot harass, oppress or threaten borrowers, loan guarantors or any person when collecting or recovering debts. It is evident that these new provisions are aimed at ensuring consumers are protected and abuse is prevented, particularly for digital lenders who would now fall under this purview. The amendments to the Act create a structured framework for their operations, fostering accountability and a more regulated environment.

The Standards Act, Cap 496

The Bill proposes the addition of several provisions for the registration of manufacturers and quality testing of products. It seeks to ensure that any person that wishes to manufacture goods and products must be registered by the Kenya Bureau of Standards (“KEBS”). This brings every manufacturer within the scope and regulatory compliance framework of KEBS, ensuring they meet minimum quality standards throughout the production process before products are available for consumers.

This is further evident in the proposed inclusion of Section 10D which details the duties of manufacturers to ensure every product is designed and manufactured in accordance with the relevant standards, conduct sample testing is before product releases, establish procedures for tracing products from the factory to end-consumers, ensure appropriate labelling, and investigate and keep records of all complaints.

The Bill further proposes the inclusion of Section 12A and 12B into the Standards Act which would allow KEBS to establish or designate competent labs to offer testing services, issue test certificates and develop national measurement standards. Section 14D enables KEBS to appoint an inspection body for goods in the country of origin to verify that the goods conform to Kenya’s standards. Such bodies are liable to pay taxes in Kenya. These three proposals create efficiency in the testing and examination of products, which will enhance our quality standards and ability to enforce product quality specifications. However, if Kenya doesn’t have a double taxation agreement with the country in which they appoint an inspection body, such bodies may be subject to double taxation.

These amendments may lead to the improved quality of products manufactured and increased accountability for manufacturers enhancing consumer safety. The Bill further provides a stronger regulatory framework that may counter the prevalence of substandard goods entering the Kenyan market. However, these provisions may impose additional costs on manufacturers including registration fees, and compliance costs which may disadvantage the small-scale manufacturers.

Special Economic Zones Act, Cap 517A

The Bill empowers the Cabinet Secretary for Investments, Trade and Industry to set the minimum requirements for acreage of land and thresholds for investments for land that may be considered for declaration as a special economic zone. The Bill also clarifies that goods that remain within a customs-controlled and special economic zone are entitled to the tax benefits conferred under the Act. Tax benefits and incentives that are granted to enterprises and developers in these zones last for 10 years from the date of issuance of a license.

The proposed amendment to Section 11 of the Act seeks to streamline the administrative process of creating and managing special economic zones by establishing a one-stop shop for all enterprises to channel their applications for permits, approvals and licenses and ensuring compliance with the law. These amendments encourage large-scale investments and emphasise the role that special economic zones play in the development of trade, manufacturing, industry growth and ultimately, our economy.

The Kenya Accreditation Service Act, Cap 496A

The proposed Bill aims to modify the Act by adding new sections that outline the accreditation process for foreign Conformity Assessment Bodies functioning in Kenya and to set up an Accreditation levy at a rate of 3% on the value of any accredited service delivered to a third party by an accredited conformity assessment body.

This may lead to various advantages, including a more competitive market with the entry of more international players, the introduction of a new revenue stream allowing for better funding of regulatory activities and enhancement of services provided to certified bodies and the improvement of Kenya’s trade relationships by ensuring that foreign goods and services meet specific quality and safety standards. It has, however, several disadvantages which include increased stringent and time-consuming accreditation procedures and increased prices for services which may be passed down to the consumers.

The Scrap Metal Act, Cap 503

The Bill proposes to amend the Act by making changes to the composition of the Scrap Metal Council. The chairperson will now be appointed by the President, with additional representation for collectors, agents, smelters, and millers, ensuring inclusivity and balanced decision-making. This aims to enhance inclusivity and representation which provides a more diverse range of perspectives in decision-making through increased oversight and stakeholder engagement.

Conclusion

The Bill has been submitted for public participation before it is put before the National Assembly for consideration. Our team is closely monitoring the developments and will continue to provide updates and advice as the process evolves.

 

A polite note: The Business Laws (Amendment) Bill, 2024 has now been assented into Law.

For further assistance or information, please contact Benson Ngugi, Kabu Karanja or Jessica Obimbo.

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LEGAL ALERT: Compliance with Beneficial Ownership Information Requirements

On 17 October 2024, the Registrar of Companies issued a public notice mandating that all companies and Limited Liability Partnerships (LLPs) comply with the beneficial ownership disclosure requirements under the Companies Act (Cap. 486) and the Limited Liability Partnership Act (Cap. 30). Non-compliance will result in removal from the Register of Companies. Private limited companies must meet the requirements by 30 November 2024. As of October 2024, 399,595 of Kenya’s 794,741 registered companies (representing 50.28%) have not disclosed their beneficial ownership information as required by law, thus risking delisting.

Beneficial Owners and Beneficial Ownership Information

A beneficial owner is a natural person who, either individually or jointly, directly or indirectly, holds at least 10% of a company’s shares, exercises 10% or more of its voting rights, can appoint or remove a majority of its board of directors, or has significant influence or control over the company (usually financial).

The legal framework for beneficial ownership information disclosure in Kenya includes the Companies Act, the Companies (Beneficial Ownership Information) Regulations, 2020, the Limited the Liability Partnerships Act, and the Business Registration Service Guide on Disclosure of Beneficial Ownership Information. These regulations are part of Kenya’s response to the Financial Action Task Force’s (FATF) recommendations to combat money laundering, terrorism, corruption, and organized crimes.

Companies are required to identify and verify their beneficial owners and record specific information about them including their full name, national identity card or passport number, KRA PIN, nationality, addresses, occupation, nature of ownership or control, and the date on which any person became a beneficial owner of the company. Companies must maintain this information in a register and submit a copy to the Registrar.

Companies must also document if they are aware of a beneficial owner whose details are incomplete, if a warning was issued and ignored, if a restriction notice was given, or if there are ongoing court proceedings concerning beneficial ownership.

Penalties for non-compliance

Failure to keep and file a register of beneficial ownership information with the Registrar of Companies is an offence punishable by a KES. 500,000. Continuing non-compliance incurs a further fine of up to KES. 50,000. Additionally, failure to file amendments to the beneficial ownership register within 14 days of a change attracts an administrative fine of KES. 2,000 for the company and each defaulting officer, with an additional penalty of Ksh. 100 for each day the default continues.

Companies have recourse under the regulations to issue warning notices and restrictions to beneficial owners who fail to provide the required information.

Conclusion

With the compliance deadline fast approaching, companies must act to comply with the disclosure requirements or risk removal from the register. This enforcement underscores Kenya’s commitments to global standards to combat money laundering, terrorism, corruption, and organised crime.

Should you require assistance to comply with the Registrar’s directive, please get in touch with Benson Ngugi, Kabu Karanja, or Jessica Obimbo.

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The Digital Nomad Work Visa

On 2nd October 2024, President William Ruto officially announced the launch of the Digital Nomad Work Visa (“Visa”), aimed at attracting high-earning global professionals, while providing them with the opportunity to experience Kenya’s rich natural beauty, people and culture. With the establishment of the Class N Digital Nomad Visa via Legal Notice Number 155 under our Citizenship and Immigration Regulations of 2012, remote workers no longer require tourist visas and can obtain a visa that grants them permission to operate remotely while living outside their country of permanent residency.

In an effort to grow our economy by encouraging increased spending on tourism, housing and local services, Kenya joins a short list of African nations that have recently introduced this type of visa, including Mauritius, Namibia and Seychelles. Over 50 countries across the globe, primarily in Central America and Europe, offer similar visas. This signals a growing trend towards accommodating flexible remote working.

 

What is the Digital Nomad Visa?

The Digital Nomad Visa is designed for individuals who can work independently of their location, including employees, freelancers, and business owners. The Visa allows these individuals—and in some cases, their family members—to reside in Kenya while maintaining employment or running businesses that are based outside of the country. This is an ideal option for professionals who seek to live abroad without giving up their employment or business activities in their home country.

Holders of this Visa will retain their foreign citizenship and may live and work in Kenya without needing to secure local employment. The Visa will also allow eligible remote workers to reside temporarily in Kenya and could potentially open the door for long-term residency and, eventually, citizenship.

 

Eligibility Criteria

 To qualify for the Visa, applicants must meet the following requirements:

  • Possess a valid passport;
  • Provide evidence that they are working remotely for an employer, clients, or businesses established outside Kenya. This proof may be in the form of an employment contract, ownership of a foreign company, or a freelancer’s business contract with a client;
  • Illustrate an annual income of at least $55,000 generated from sources outside of Kenya. We expect this amount to be clarified in the official gazette notice;
  • Proof of accommodation arrangements in Kenya during the applicants stay; and
  • Provide a police clearance certificate or equivalent document proving the applicant has a clean criminal record in their country of habitual residence.

 

Key Restrictions

 One of the distinguishing features of the Visa is its strict limitation on engaging in local employment. Visa holders are prohibited from accepting employment, whether paid or unpaid, from companies or employers based in Kenya. This restriction ensures that the Visa is reserved solely for those whose income is derived from sources outside of Kenya. Any individual found to be engaging in employment or income-generating activities within Kenya would be ineligible. This will allow Kenya to build its economy and tourism industry while safeguarding competition in the local job market.

While the President has launched this new Visa class, the Government is yet to provide clarification on the following:

  • The validity period of the Visa;
  • The application process and timeline;
  • Rules regarding dependants; and
  • Income tax considerations for Visa holders.

We expect the Government to publish an official notice in the Kenya Gazette that will provide for the above along with any additional information on how to obtain the Visa. This will also clarify the tax treatment of the foreign national’s income in Kenya. Currently Kenya’s Income Tax Act (Cap. 470) provides that foreigners become tax residents if they remain in Kenya for an aggregate period of 183 days in a year.

 

Comparative Analysis: Mauritius and Estonia’s Digital Nomad Visa

Estonia

In August 2020, Estonia became the first country to launch a digital nomad visa. The country offers both short-stay (up to 6 months) and long-stay (up to 1 year) Visas, which are available to remote workers with any nationality. Remote workers that wish to live in this country have two options. They can get a short-stay visa that is valid for 6 months or a long-stay visa that is valid for 1 year. Any person from any nationality can apply.

Some eligibility requirements are similar to the proposed Kenyan framework. For example, applicants must demonstrate proof of accommodation, proof that they can work remotely regardless of their location, and evidence of a clean criminal record. The other factors that will be considered are proof of sufficient funds through a bank statement from the last 6 months, valid health insurance of at least € 30,000 that covers the entire Schengen area and relevant academic certificates.

It is not possible to extend the visa, but a remote worker can apply for another visa while they are still in Estonia. If they apply for another digital nomad visa, they can only remain in Estonia for an additional 6-month period.

The Estonian framework also caters for dependants by allowing spouses and minor children to be included in the application. Adult children that are unable to cater for themselves due to a medical condition are also included as dependants.

A major difference in the visa restrictions between Kenya and Estonia is the latter allows visa holders to work for Estonian businesses or clients so long as their primary income is generated from outside of the country. Additionally, the threshold for the minimum income requirement is slightly higher since an applicant must illustrate that they receive at least € 4,500 per month. Digital nomads that reside in Estonia for more than 183 days are subject to a flat tax rate of 20%.

 

Mauritius

Mauritius introduced the Premium Visa, their version of the digital nomad visa in 2020. This visa targets professionals, retirees, travellers and their dependants who wish to live in the country for a term of 1 year (renewable for a further year). It offers a more attractive alternative to short-stay tourist visas. Only foreign nationals from an eligible country can apply directly. Others have the option of applying for a tourist visa, then submitting an application for the Premium Visa while they are in Mauritius.

Applicants must show evidence of remote work, health insurance, proof of accommodation, and travel itinerary (including a return flight ticket). Similarly, to Kenya’s proposed criteria, an applicant must not have any desire to participate in the local job market. However, the minimum requirement for sufficient funds is much less than in Kenya and Estonia, with applicants having to demonstrate that they receive a monthly income of at least $1,500. Additionally, the application process is online, it’s free and decisions on applications should take 48 hours. After digital nomads stay for a period that exceeds 183 days, they are subject to tax which is set at 15%. 

Conclusion

Kenya’s Immigration Department has not yet updated its electronic foreign national services (eFNS) portal to facilitate applications for this Visa category. We anticipate that the Department will soon issue additional guidance, including a more detailed list of documentation and procedural requirements for applicants. Our team is closely monitoring these developments and will continue to provide updates and advice as the process evolves.

 

For further assistance or information, please contact Jillian Ndirangu, Kabu Karanja or Jessica Obimbo.

Challenging Summons for Information from CMA is Premature – CMA Tribunal

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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