Changes effected to Trusts in Kenya by the Trustees (Perpetual Succession) (Amendment) Act, 2021

The Trustees (Perpetual Succession) (Amendment) Act, 2021 (hereinafter “the Amendment Act”) has introduced some key changes to the law of trusts in Kenya helping to clarify the landscape of trust formation and registration in Kenya.

Prior to this Amendment Act being passed, trusts were generally defined in the Trustee Act Chapter 167 of the Laws of Kenya as “implied and constructive trusts , cases where the trustee has a beneficial interest in the trust property, and to the duties incidental to the office of a personal representative”.

With respect to registration and incorporation of trusts, trusts created other than by operation of law were required to first be registered as simple trusts with the (or a) registrar of documents under the Registration of Documents Act, then thereafter, if the creator of the trust desired the trust to be a corporate body with perpetual succession, the creator then had to make a separate application to the Cabinet Secretary in charge of lands under the Trustees (Perpetual Succession) Act Chapter 164 of the Laws of Kenya, for incorporation of the trust.

The Act also did not set out timelines for registration of the trust deed or for incorporation of the trust and accordingly registration of a trust deed could take up to a month or more and incorporation of a trust could take up to 2 years or more.

Continue reading “Changes effected to Trusts in Kenya by the Trustees (Perpetual Succession) (Amendment) Act, 2021”

Looking to book tourists on Airbnb? Careful, the Tourism Regulatory Authority in Kenya is watching

Under the Kenyan Tourism Act No. 28 of 2011, no person is permitted to carry out tourism activities or services in the country without a licence. The applicable tourism activities and services are listed in the Ninth Schedule of the Act and are categorized into Classes “A” to “H” Enterprises.

The application for licensing is required to be made to the Tourism Regulatory Authority in Kenya using a prescribed form which can be downloaded from the Authority’s website. The licence granted is an annual licence which must be renewed every year. There is also supporting documentation that will need to be submitted together with the application depending on the person, entity or business seeking licensing.

Short term rentals and accommodation targeted at tourists fall under Class “A” Enterprises which includes hotels, motels, inns, hostels, serviced flats and apartments, beach and holiday cottages, villas, homestays, guest houses and time shares.

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How To Change Your Name Under Kenyan Law

Names are not cast in stone and it is possible to change them. You can change your name at any time (in your adult life) and for any reason provided that it is not to deceive or defraud or to avoid an obligation. The Registration of Documents Act (CAP 285) read together with the Registration of Documents (Change of Name) Regulations provide the legal basis for this process. Continue reading “How To Change Your Name Under Kenyan Law”

Breach of Contract by the Government: Available Measures in Law for Businesses

Introduction

Tender season! It comes around every year and every time it does, our local newspapers and websites are awash with tender invitations placed by various government ministries or agencies across the country for the supply of goods and services or for the conduct of building and civil works. Numerous Kenyan businesses, from various industries, scan the dailies and reload website pages almost religiously with a view to tracking such advertisements. The businesses identify the invitations to tender falling within their field of expertise and submit their bids. Putting those bids together is often time consuming and cost intensive especially for large construction projects where the business entity is required to offer tender security, guarantees, informed technical proposals and detailed financial proposals.

The excitement is almost palpable when the relevant government ministry or agency evaluates the submitted bids and awards the tender to the successful business entity. The letter of award is quickly accepted by the successful tenderer, and the parties then prepare and sign the necessary contract documents spelling out, among other terms, the obligations of the parties. Some of these obligations are usually standard. One of these would be that the successful tenderer is expected to supply the goods and services or conduct the building and civil works in a satisfactory manner. On the other hand, the government ministry or agency commits to settle payments in a timely fashion.

For the successful business entity, the tender might often be its guaranteed source of income, its super profit machine or its business deal of the decade in light of the perceived financial stability of government ministries or agencies.

That is, until the government ministry or agency in question defaults in making scheduled payments despite the satisfactory performance of the business entity’s obligations, the ministry’s or agency’s officials remain non-responsive to the business entity’s constant emails, letters and telephone calls. It then becomes necessary to evaluate the available options for recovery or recourse.

What are the legal remedies available to the business entity for breach of contract by a government ministry or agency? What is the manner in which these remedies would be enforced? Continue reading “Breach of Contract by the Government: Available Measures in Law for Businesses”

Electronic Signatures in the Kenyan Legal Context

Technology has brought a lot of developments in our country in the recent years. You can now undertake bank transactions in the comfort of your home through your mobile phone. You can send any sums of money back and forth as needed, pay your bills and pay for your groceries at the till through MPesa. You can even withdraw money from your bank account through your phone.

And now we also have eGovernment. Government services are also going digital, allowing you to carry out and receive several government services online through https://accounts.ecitizen.go.ke while in the comfort of your home and pay for these services using mobile money.

In the commercial context, more and more people are preferring to do online shopping with the advent of local sites such as Jumia and Kilimall and foreign sites such as Amazon and Ebay. You can order whatever you want online, pay for it using mobile money, electronic card or cash on delivery and have it delivered to your doorstep. You never have to leave your house to look for it.

Inevitably, the question arises for businesses, as the world becomes a little oyster with everybody being able to reach everybody else and transactions being carried out across borders and countries all the time, “Can we also enter into binding contracts online where everything including signing of the document can be done electronically?” Continue reading “Electronic Signatures in the Kenyan Legal Context”