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LEGAL UPDATE ON THE CENTRAL BANK OF KENYA (AMENDMENT) BILL 2020

Introduction

On 30th November 2020, the Central Bank of Kenya (Amendment) Bill, 2020 (‘the Bill’) was published in the Kenya Gazette and seeks to have the Central Bank of Kenya (‘CBK’) regulate providers of digital money lending services.

Contents of the Bill

The Bill describes digital money lenders as any entity that offers credit facilities in the form of mobile money lending applications. Should the Bill pass into law, such persons will be required to apply for and obtain an annual license from CBK. The Bill also grants CBK the power to impose on the license any conditions it considers fit. A list of all licensed digital lenders shall then be published in the Kenya Gazette.

Some notable features of the Bill include the requirement for a digital money lending institution to be managed by at least two Directors, one of whom must be a Kenyan citizen. Digital lenders are also required to expressly announce their interest rates in any advertisements they publish.

Implications of the Bill

The Bill aims to address the concerns of low income earning borrowers who apply for quick digital loans and end up paying exorbitant interest rates or being bound by unfair and unfavourable loan terms due to the lack of regulation of the digital money lending industry.

The Bill would also aid in curbing money laundering and terrorism financing as lenders would be required to disclose to the CBK the source of their funds.

The CBK may also impose restrictions on the misuse of borrowers’ information to pester relatives and friends of defaulters which has become common practice for some digital lenders.

Conclusion

The Bill sponsored by Hon. Gideon Keter is one among several previous efforts to regulate the business of the ever growing Kenyan digital credit market. It is now in the hands of our legislators to ensure consumer protection in digital lending.

For more details and professional advice on the information in this legal update, please do not hesitate to contact

Benson Ngugi (benson.ngugi@attorneysafrica.com) ,

Ken Rutere (ken.rutere@attorneysafrica.com)

Martin Moturi (martin.moturi@attorneysafrica.com)

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The Obligation to Explain vs. the Obligation to Protect: Disclosure Post-Schrems II

Introduction: The Obligation to Report and Explain

The obligation not only to ensure the privacy of stored data but also to disclose and explain the steps taken to safeguard that data is becoming increasingly costly to companies.

Government regulators, customers, shareholders and individuals routinely now demand explanations of both security protocols and also responses to data incidents and the steps taken to remediate the damage from such incidents.

To the extent that these disclosures can be made without compromising a company’s network, they are effectively involuntary at this point. This is true from the regulatory, legal and public relations standpoints.

The protection of data measures and the disclosure and reporting requirements related to the protection of that data is now a primary cost for any organization aggregating data.

More importantly, reporting needs are also bumping up against data privacy protection requirements, posing yet another legal challenge for companies aiming to do the right thing.

SCCs and the Privacy Shield Framework: Prior Efforts at Easing the Compliance Process

In 2016, the concern for the protection of personal data resulted in the U.S.-E.U. Privacy Shield framework.

This framework was enacted by the United States, the European Union and Switzerland in order to establish guidelines for companies’ compliance with data protection requirements when transferring personal information between them.

The Privacy Shield framework is administered by the International Trade Association (“ITA”) within the U.S. Department of Commerce.

Previously, U.S.-based organizations were able to apply to obtain Privacy Shield certification from the ITA. Privacy Shield certification, for approved U.S. organizations, meant compliance with E.U. data privacy laws.

This process was approved in 2016 by the European Commission.

In addition to the Privacy Shield, an alternative system of privacy compliance has also been utilized by companies conducting business between the U.S., the E.U. and Switzerland.

The Standard Contractual Clauses (“SCCs”) system allowed companies trading personal data cross-border to utilize contractual clauses approved by the European Union to ensure data compliance.

A number of large data companies, including Facebook, took advantage of the SCC system to conduct cross-border business.

However, in July, 2020, both of these compliance systems changed when an Austrian data privacy activist named Max Schrems filed a suit in Europe to contest Facebook’s use of SCCs.

The Schrems II Decision: Goodbye, Yellow Brick Road …

Max Schrems filed a suit in Ireland seeking a ruling that Facebook’s cross-border transfers of E.U. personal data utilizing the SCCs was invalid, on the basis that the SCCs did not offer sufficient privacy protection for E.U. nationals.

Ultimately, the Court of Justice of the European Union (“CJEU”) agreed that this was the case —sort of.

In a surprise ruling, the CJEU ruled that the U.S.-E.U.-Switzerland Privacy Shield framework was invalid for that very reason. The CJEU ruled that U.S. law failed to grant E.U. individuals a cause of action for a breach of data privacy rights equivalent to that guaranteed under E.U. law.

As to the SCCs, the Court held that organizations can continue to utilize these contractual provisions — but only where case-specific risks have been properly assessed. The SCCs, the Court said, “… cannot amount to a tick box exercise.”

Conclusion: Where to Go With This?

The takeaway here is that, while, domestically, U.S. businesses and other organizations face a rising demand for disclosure regarding damage-mitigation efforts around data events, any disclosure made will face tough scrutiny in the E.U. if personal data arising from the E.U. is overly revealed in the process.

Likewise, the risk of governmental sanction exists if disclosures reveal that personal data with an E.U. origin has been compromised.

Neither the Privacy Shield framework (which the ITA continues to operate) nor the SCCs will safeguard a company from litigation or sanction if the level of governmental access to personal data is overly generous.

Going forward, companies will need to assess on a case-by-case basis whether the SCCs may be relied upon.

For More Information Please Contact:

benson.ngugi@attorneysafrica.com

Jillian.ndirangu@attorneysafrica.com

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The Conversion of Land Reference Numbers in Nairobi

Pursuant to the Land Registration Act, 2012 (“the LRA”) and the Land Registration (Registration Units) Order, 2017, the Ministry of Lands and Physical Planning (“the Ministry”) has begun the process of conversion of various Land Reference Numbers in order to consolidate the land registration regimes in the repealed legislations to create one amalgamated registration process and curtail fraud and delays in delivery of services.

A special issue of the Kenya Gazette published on the 31st of December 2020 announced the conversion of various parcels of land in Nairobi. This shall affect land owners and parties with an interest in the Land Reference Numbers that are listed. A copy of the Gazette can be accessed at http://kenyalaw.org/kenya_gazette/gazette/volume/MjI2OA–/Vol.CXXII-No.242/. We advise those who are affected to take the following steps:

  1. Take note of the old and new registration numbers and ensure that the corresponding acreage details of the affected parcel are correct;
  2. Inspect the cadastral maps of the land; and
  3. Once the Ministry invites registered owners to apply for replacement of title documents, registered owners should apply for the same and surrender their title documents under the old repealed regime in order to receive their new title under the LRA.

If there are any inconsistencies in the details of the old Land Reference Numbers and new Parcel Numbers, interested parties may lodge a complaint with the Registrar of Lands, and pending its resolution, register a caution on the affected land.

Please note that all documents pertaining to the parcels specified in the Gazette shall be transferred and maintained in the new registration units on the 1st of April 2021 (“the commencement date”). We therefore advise all interested parties to inspect the details in the Gazette and in the case of grievances, take all necessary action before the commencement date.

Igeria & Ngugi Advocates are ready and willing to provide further assistance to any interested party relating to the steps detailed above and the entire conversion of title process.

For any further queries, please send an email to

conveyancing@attorneysafrica.com or benson.ngugi@attorneysafrica.com.

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MINIMUM TAX.

On 30th June 2020 the president of Kenya assented the Finance Act, 2020.

One of the key changes was on the corporation tax with the introduction of the minimum tax regime. The minimum tax payment is 1% of the gross turn over.

The effective date of the tax is 1st January 2021

The tax is a base tax payable by all whether one has made a profit or not. The income that are exempted from the minimum tax are: –

  1. Income exempted by the Act
  2. Employment income
  3. Income that is subject to residential income tax
  4. Income that is subject to Turn over Tax
  5. Income that is subject to capital gains tax.
  6. Income of extractive sectors

The minimum tax will be payable in four instalments by the 20th day of the 4th, 6th, 9th, and 12th month of the year of income.

It’s important to note that instalment tax is still applicable, but however this has been set such that where the instalment tax is higher that minimum tax, then minimum tax is payable. On the other hand, if the minimum tax is higher than instalment tax, then the minimum tax becomes payable.

Of concern is that companies which report tax losses due to investment incentives granted by the government will suffer the minimum tax which claws back the intended benefit to the investor.

Covid-19 has impacted many businesses negatively and its expected that such business will suffer loses in the coming years. The irony is that whilst the government is reducing the rate of tax for profit making companies, the introduction of the minimum tax will definitely have an impact on loss making companies and some startups.

For more information on this, please feel free to contact

Benson Ngugi – benson.ngugi@attorneysafrica.com

Ken Rutere – ken.rutere@attorneysafrica.com

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PROCESS OF PURCHASING REAL ESTATE IN KENYA

Acquisition of assets is one of the main signs of growth and investments into your future. Real estate investment is the purchase of a future income stream from property and can offer several advantages over other types of investments. These include;

• Potentially higher returns,
• Stability,
• Inflation hedging (Investments in real estate is not finite on purchases of Property
• and diversification.

Once you have decided on Real estate as one of your investments, We, at Igeria & Ngugi Advocates will gladly walk you through the process of purchasing property and any other matters that may arise from the said acquisition.
Here are the 9 major steps of Acquisition of Property:

1. Searches and Inspection of the Title
Once you identify land it’s always recommended that you visit the lands registry so as to conduct a search of the land in question. You will need a copy of the land title deed from the seller to enable the search. This will normally take three days to get the results of the current registered owner of the land and if there is any encumbrance (third-party rights) entered against the land.

2. Preparation of Offers and Price Negotiation
Once you are satisfied with the search results as presented by your Advocates from the lands registry and the company registry (where a company is involved), then you can have the Vendor’s Advocate prepare an offer for your consideration. The letter of offer/letter of intent contains the basic terms of the agreement between the Parties including;
2.1 the details of the seller and purchaser;
2.2 the description of the property on offer;
2.3 the proposed purchase price and modes of payment; and
2.4 any other special term that informed the Agreement between the Parties.
The Letter of Offer/ Letter of Intent is executed by both Parties and it is drafted subject to contract (meaning that it is subject to the Parties execution the Agreement for Sale). It is therefore worth noting that the Letter of Offer/ Letter of Intent comes with an allowable period for execution of the Agreement for Sale. Therefore, if parties fail to execute the Agreement for Sale over the grace period, the Offer lapses.

3. Sale Agreement and Deposit Payment
The Agreement for Sale, as a matter of legal practice, is drafted by the seller’s advocate and presented to the buyer’s advocate for approval. It is important to understand that an Agreement for Sale is created based on the Parties’ agreement as to its commercial terms. However, as a matter of practise, once the agreement has been executed, the agreed deposit is paid by the purchaser through their advocate to the seller’s advocate’s account to hold as stakeholder pending the registration of the Property in favour of the Purchaser.
4. Payment of Land Rates and Land Rent over Property
Buyers should confirm whether the Property they intend to purchase have been assessed for land rates (payable to the county government) and/or land rent (payable to the lands offices). The settlement of the land rates and land rent is a legal obligation of landowners and the seller should clear any pending rent and rates and provide their respective clearance certificates. Of note, the parties apportion the settlement of the land rates and land rent between themselves as at the date of completion.

5. Completion Documents
The Purchaser’s Advocate prepares transfer documents that will be executed by both the buyer and the seller, subject to review by the seller’s Advocate. In turn, the seller’s Advocate is responsible for providing all the Completion Documents necessary to transfer the Property to the Purchaser.
6. Exchange of Documents
Upon receipt of the completion documents from the seller, the buyer is obligated in exchange of the documents, to pay to the seller’s advocates the entire balance. The amount is held as stakeholder pending the successful registration of the Property in favour of the Purchaser.

7. Valuation
With respect to the stamp duty payable, an application for valuation is always made to the government valuer, who makes a site visit to enable him or her to prepare the requisite valuation report.
The payable duty is determined by a government valuer and the valuation is done to determine the value of the land on the open market as at the date of Transfer.

8. Payment of Stamp Duty
It is the responsibility of the buyer to pay the stamp duty subject to the assessment and finding of the Government Valuer.
9. Registration of the Transfer
Once the Stamp Duty is settled, the Completion Documents are booked for registration at the Lands Office. At the completion of this process, the legal and beneficial ownership of the land shall have changed hands to the intended beneficiary. At this point, the seller’s Advocate is free to release to the seller the full purchase price amount that was being held on a stakeholder basis. In exchange of release of the purchase price, the purchaser is given vacant possession over the Property.

Our Property and Real Estate team are always available to assist in all these seemingly daunting steps.
With so many fraudulent cases arising, it is only prudent that you get an Advocate involved from the onset.

Your solution starts here