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Appointment of an Employee In an acting capacity - Robson Harris LLP
The article examines the legal framework governing appointment of employees in acting capacity in Kenya, noting that the Employment Act and Regulations of Wages (General) Order provide limited guidance. For public officers, the Public Service Commission Act allows acting appointments for up to six months. Courts have held that prolonged acting appointments without substantive confirmation may constitute unfair labour practices and discrimination under Article 41 of the Constitution, as illustrated in Edah Cherono Maiywa vs. University of Nairobi Enterprises and Services Limited.
Data Protection & Corporate Governance - Robson Harris LLP
The article discusses the integration of data protection into corporate governance frameworks, emphasizing the board's responsibility in managing cyber risks and IT security. It outlines a three-step process for a Data Protection Impact Assessment: evaluating current data holdings, assessing IT infrastructure adequacy, and implementing access controls for personnel. The author stresses that boards must proactively adopt data protection measures to avoid legal liabilities and financial penalties.
Surrogacy in Kenya: burden or heaven? - Robson Harris LLP
The article examines surrogacy in Kenya, highlighting the lack of a legal framework and associated challenges such as high costs and registration issues under the Births and Deaths Registration Act. It discusses the proposed Reproductive Healthcare Bill, 2019, which would establish conditions for surrogacy agreements, including age requirements, written contracts, and legal parenthood for commissioning parents. The article also notes the Employment (Amendment) Bill, 2019, which sought maternity leave for commissioning mothers but was rejected due to the absence of a surrogacy legal framework.
Operations of the Small Claims Court (Highlights) - Robson Harris LLP
The article discusses the establishment and operations of the Small Claims Court in Kenya, created under the Small Claims Court Act (2016, amended 2020/2021) to enhance access to justice per Article 48 of the Constitution. The Court handles civil claims up to Kshs. 1,000,000, including contracts, torts, and personal injury, but excludes defamation, land disputes, and employment matters. It emphasizes expedited proceedings (60-day resolution), simplified procedures, and allows representation by non-lawyers with court permission. Initially launched in Nairobi County, plans exist to expand to other regions.
Legal Insights: Contribution to Lexology Getting The Deal Through - Corporate Governance, 2022 - Robson Harris LLP
Robson Harris LLP authors Jane S. Mwangi, Chepchirchir Sego, Gregory Manyala, and Jack Otieno contributed to the Lexology Getting The Deal Through – Corporate Governance 2022 Guide for Kenya. The guide covers sources of corporate governance rules, responsible agencies, shareholder powers, board structure, director duties, remuneration, disclosure, and recent trends. It serves as a quick reference for corporate governance issues in Kenya.
Finance ACT, 2021 - Impact On Corporate Trustees - Robson Harris LLP
The Finance Act, 2021, effective 1 July 2021, introduces a registration, reporting, and oversight regime for corporate trustees under the Retirement Benefits Act. Corporate trustees must register with the Retirement Benefits Authority (RBA) and meet capital, professional, and operational criteria. They are required to submit annual audited financial statements and disclose changes in shareholding or management. The RBA can inspect corporate trustees, and non-compliance may result in fines or imprisonment.
Setting up a fintech firm in Kenya - Robson Harris LLP
The article provides an overview of regulatory considerations for setting up a fintech firm in Kenya, highlighting the fragmented regulatory framework and the need to engage multiple regulators. It categorizes fintech solutions into deposit taking, credit, payment, investment, and insurance, each governed by specific laws. The regulatory approach in Kenya is noted as welcoming innovation, based on past approvals of novel fintech solutions.
Highlights Of Kenya’s New Anti-Bribery Regulations - Robson Harris LLP
Kenya's Bribery Act, No. 47 of 2016, requires all public and private entities to implement anti-bribery procedures. The Bribery Act Regulations, 2021, operationalize the Act and mandate that entities must have written policies addressing risk assessment, training, reporting, and whistleblowing by May 2022. Subsidiaries may adopt parent entity procedures, but joint ventures must establish separate policies. The regulations also specify reporting requirements to the Ethics and Anti-Corruption Commission.
Challenges of Voluntary Tax Disclosure Programme: Which Way Forward? - Robson Harris LLP
The article examines Kenya's Voluntary Tax Disclosure Programme (VTDP) introduced by the Finance Act 2020, which offers a three-year tax amnesty for undisclosed liabilities from 2015 to 2020. Despite benefits like waiver of penalties and immunity from prosecution, the programme suffers from low uptake due to taxpayer mistrust of the Kenya Revenue Authority and lack of guarantees. The article highlights conditions for eligibility, including exclusion of taxpayers under audit or litigation, and suggests the need for KRA to rebuild trust to ensure the programme's success.
Recovery of unremitted Pension contributions by Pension funds – Key changes under Finance ACT, 2021 - Robson Harris LLP
The Finance Act, 2021 introduces Section 53B(2)-(8) to the Retirement Benefits Act, empowering pension funds to appoint the Kenya Revenue Authority (KRA) as an agent to recover unremitted pension contributions from defaulting employers. Before appointing KRA, the pension fund must obtain approval from the Retirement Benefits Authority (RBA) and demonstrate that all reasonable recovery efforts have been exhausted. Once appointed, KRA can issue notices and attach the employer's bank accounts to collect outstanding contributions, interest, penalties, and recovery costs. The amendment aims to address the persistent issue of underfunding in occupational pension schemes by providing a more effective enforcement mechanism.