wka advocates south africa

Author: William Karoki

  • Property Lawyers in Kenya

    Property Lawyers in Kenya – Expert Conveyancing and Real Estate Services

    At WKA Advocates, we provide expert legal representation in all areas of conveyancing and real estate development projects. Our Conveyancing and Property practice has extensive experience in advising clients on property transactions, construction law, and real estate matters. If you’re looking for top real estate lawyers in Nairobi, our team offers comprehensive legal services across all aspects of property law.

    Best Real Estate Lawyers in Nairobi

    Our highly skilled property lawyers in Nairobi are equipped to handle a wide range of real estate transactions. From acquisitions to sales, leasing, and developments, WKA Advocates has built a reputation as one of the best law firms in Kenya for real estate law. Whether you’re an investor, developer, or property owner, we ensure all legal aspects of your property dealings are managed efficiently and effectively.

    Kenya Property Lawyers – Trusted Legal Counsel

    At WKA Advocates, our Kenya property lawyers provide professional legal counsel with years of experience in property law. We have successfully handled various cases and legal matters for a diverse range of clients, from private property owners to large real estate developers. Our trusted team of property attorneys ensures that clients receive personalized legal solutions for every case.

    Experienced Kenya Property Lawyers

    When you choose WKA Advocates, you’re partnering with some of the most experienced property lawyers in Kenya. Our team fully embraces each case, delivering more than just legal advice. We are dedicated to protecting our clients’ interests, ensuring that each case is handled with care, precision, and a strategy tailored to achieve the best outcomes.

    Real Estate Legal Services for Developers, Investors, and Property Owners

    At WKA Advocates, we have the technical expertise to advise on all aspects of real estate projects, including structuring complex developments for commercial and residential properties. Our services include the acquisition and disposal of land, title processing, lease extensions, subdivisions, and drafting construction contracts. We represent real estate investors, developers, commercial and residential property owners, and private clients.

    Comprehensive Legal Services in Real Estate

    Our real estate lawyers in Kenya provide legal services in the following areas:

    • Real estate sales and purchase processes
    • Land use and planning
    • Joint venture agreements
    • Shareholder agreements
    • Real estate dispute resolution
    • Investment planning
    • Real estate tax and tax planning

    For reliable and expert property law services in Kenya, WKA Advocates is your trusted legal partner.

  • WHAT IS SERVICE CHARGE?

    How Can a Management Company Increase the Service Charge in Nairobi or Kenya?

    Under Section 255 of the Companies Act, 2015, members of a company can pass resolutions either as written resolutions or at a meeting of the members. This means that in Nairobi or other parts of Kenya, a Management Company can increase the service charge by passing a special resolution. According to Section 257 of the Companies Act, 2015, this requires a majority vote of at least 75%. Once passed, the Management Company can increase the service charge while ensuring transparency and fairness by following these steps:

    Steps to Increase Service Charge in Kenya

    • Consultation: The Management Company may consult with professionals to determine the appropriate service charge based on the services provided.
    • Justification: A clear justification for the increase should be provided. Factors like inflation, rising maintenance costs, service upgrades, and facility improvements can all be valid reasons for adjusting the service charge.
    • Transparency: Maintaining transparency is key. The Management Company should provide property owners with all relevant information, allowing them to ask questions and seek clarifications during the process.

    Legal Developments on Service Charges in Kenya

    If a Management Company in Nairobi or elsewhere in Kenya neglects its duties or fails to account for service charge funds, property owners and shareholders can seek legal redress in court. It is important to know your legal rights to protect your interests.

    How Can a Management Company Recover Service Charges from Defaulters in Kenya?

    In cases where some owners refuse to comply with paying service charges, the Management Company has several legal options:

    • Issue a Demand Letter: The company can issue a demand letter for payment of all outstanding service charges and any arrears.
    • Disconnect Services: The company may disconnect communal services such as water or electricity, deny gate access, and restrict use of facilities like gyms and swimming pools for defaulters.
    • Right of Forfeiture: If the owner continues to default, the Management Company can exercise its right of forfeiture, terminate the lease, and take possession of the premises.
    • Institute a Civil Suit: The company may file a civil suit in the Commercial Court to recover the unpaid service charges as a debt.

    Key Court Cases on Service Charge in Kenya:

    • Melisa Awour Odera v Keringet Estates Limited [2021]: The court emphasized the importance of service charges for maintaining communal facilities and stated that service charge payments are essential for the upkeep of the development.
    • Debra Limited v Board of Trustees National Social Securities Fund & Another [2017] eKLR: The court ruled that service charge is a debt recoverable through civil action rather than through distress for rent.

    Conclusion: Understanding Service Charges in Nairobi and Kenya

    Before purchasing or leasing an apartment or office in Nairobi or other parts of Kenya, it is crucial to consult a lawyer to understand the service charge structure, especially if it is not clearly outlined in the lease agreement. If a service charge increase is proposed, seek legal assistance to ensure that the Management Company follows the correct procedures.

    For further information or legal assistance on service charge compliance or any other legal issue, feel free to contact us at info@wka.co.ke or visit our website at wakilihub.co.ke/. You can also reach us at +254 798 03 580, Nairobi Hub: Parklands, Valley View Business Park, 6th Floor, City Park Drive, Off Limuru Road.

  • Best Data Protection lawyers in Kenya

    Best Data Protection lawyers in Kenya

    At WKA Advocates, we pride ourselves on being the leading data protection lawyers in Kenya, offering specialized legal services to ensure businesses comply with local and international privacy laws. Our team has a deep understanding of the Kenyan Data Protection Act, 2019, as well as global standards such as the EU General Data Protection Regulation (GDPR), making us the go-to legal partner for companies navigating data privacy regulations in Kenya and beyond.

    Kenyan Data Protection Act Compliance Experts

    We assist clients with the interpretation and application of the Kenyan Data Protection Act to ensure full compliance. Whether you are a local business or a global entity handling the personal data of Kenyan citizens, we provide comprehensive legal advisory services. Our expertise includes guiding data controllers and data processors on safeguarding personal data, building robust compliance frameworks, and providing capacity-building support for corporate clients.

    Cybersecurity, Privacy, and Data Protection Legal Experts

    As businesses adopt digital solutions and international data exchanges increase, securing personal data and ensuring compliance with cybersecurity and privacy regulations becomes a top priority. WKA Advocates has a proven track record of developing legal structures that protect organizations from cyber threats while ensuring adherence to data protection laws in Kenya. We assist with creating cybersecurity strategies, implementing incident response plans, and addressing data privacy concerns, reducing exposure to cyber risks.

    Data Protection Law in Kenya – Constitutional Foundation

    The Kenyan Data Protection Act derives its authority from the Constitution of Kenya, specifically Article 31(c) and (d), which enshrine the right to privacy. Our team ensures that organizations comply with this constitutional mandate by providing expert legal advice, audits, and policy development services. WKA Advocates stays ahead of legal developments to ensure your business complies with Kenya’s evolving data privacy landscape.

    Comprehensive Cybersecurity, Privacy, and Data Protection Services

    Our legal team provides tailored solutions for businesses operating in various sectors, including e-commerce, internet-based industries, and other regulated fields. We ensure that your organization meets both national and international data protection standards, covering every aspect of data privacy, cybersecurity, and cross-border data transfers.

    For leading legal support in data protection, privacy, and cybersecurity, trust WKA Advocates to safeguard your business and ensure compliance with the complex and evolving legal landscape in Kenya.

  • Kenya’s 2025 Immigration Overhaul

    Kenya’s 2025 Immigration Overhaul: A Blueprint for Africa’s Travel Revolution

    How JKIA’s Transformative Policies Are Reshaping East Africa’s Economy

    In a bold move to accelerate pan-African integration, Kenya’s Cabinet unveiled Kenya immigration reforms 2025 on February 11, 2025, targeting Jomo Kenyatta International Airport (JKIA) – East Africa’s busiest aviation hub. These reforms, part of President William Ruto’s Vision 2030 economic plan, aim to quadruple tourist arrivals, streamline cross-border trade, and position Nairobi as Africa’s premier business gateway.

    JKIA’s upgraded terminal under Kenya immigration reforms 2025

    The 7 Pillars of Kenya’s 2025 Immigration Strategy

    1. Africa-First Travel Policy

    • ETA Exemption: All 54 African nations now enjoy visa-free entry, eliminating the $30 Electronic Travel Authorization (ETA) fee (Kenya Gazette Notice 2025).
    • Impact: Projected 45% surge in intra-African business travel by 2026 (AfDB Report).
    • Regional Example: Follows Rwanda’s 2024 visa-free model for Africans, which increased tourism by 22% (Rwanda Development Board).

    2. Supercharged Duty-Free Allowances

    • New Threshold: Returning Kenyans can import goods worth KSh250,000 tax-free (up from KSh50,000).
    • Permitted Items: Electronics, household goods, and business tools – full list on Kenya Revenue Authority.
    • Case Study: Diaspora Kenyans saved $8.2 million collectively in Q1 2025 through the new allowance (Central Bank of Kenya).

    3. Smart Airport Infrastructure

    • E-Gates Expansion: 40 automated gates to be installed by December 2025, reducing immigration wait times to <15 minutes.
    • Global Benchmark: Inspired by Amsterdam Schiphol’s AI-driven passenger flow system.
    • Funding: $120 million joint investment by Kenya Airports Authority and Afreximbank.

    4. Risk-Based Security Screening

    • AI Luggage Scanners: Reduces manual checks by 65%, using algorithms trained on 10 million scan images.
    • Staff Training: 500 JKIA personnel certified in ISO 23065 security protocols by IATA (IATA Press Release).

    5. Transparent Staff Accountability

    • Body Cameras: Mandatory for all Kenya Revenue Authority (KRA) officers to deter bribery.
    • Public Feedback System: Real-time rating of staff via QR codes at immigration desks.

    6. Enhanced Passenger Amenities

    • New Facilities:
      • 12 breastfeeding pods (UNICEF-compliant)
      • Free Wi-Fi zones sponsored by Safaricom
      • Charging stations with USB-C/USB-A compatibility

    7. Green Airport Initiative

    • Solar Power: 30% of JKIA’s energy from new rooftop solar panels by 2026.
    • Waste Management: Partnership with Sanergy to recycle 90% of airport waste.

    Economic Opportunities: Sector-by-Sector Analysis

    Tourism & Hospitality

    • Projection: 2.1 million African tourists expected in 2026 (up from 1.4 million in 2024).
    • Hotel Boom: 15 new 4-star hotels announced near JKIA, including a Radisson Blu expansion.
    • Cultural Tie-In: “Magical Kenya” campaign now promotes cross-border roadshows with Tanzania and Uganda.

    Real Estate & Construction

    • Diaspora Demand: 62% spike in property inquiries from Kenyans abroad (HassConsult Q1 2025 Report).
    • Commercial Growth: New $200M JKIA Aerotropolis project linking the airport to Nairobi’s CBD via light rail.

    Technology & Innovation

    • Smart Airport Tech: Tenders open for:
      • Facial recognition systems
      • Baggage tracking IoT sensors
      • Multilingual AI info kiosks
    • Local Partners: Nairobi’s iHub incubator developing custom solutions.

    Legal Framework & Compliance

    WKA Advocates provides end-to-end support under the Kenya immigration reforms 2025:

    1. For Travelers

    • ETA exemption eligibility checks
    • Duty-free dispute resolution (Submit inquiry)
    • Emergency visa assistance

    2. For Investors

    • Tax-efficient company registration
    • Work permit processing (72-hour express service)
    • Real estate due diligence

    Success Story: A Nigerian fintech startup saved 6 months on licensing by using our East Africa Business Portal.

    Regional & Global Implications

    1. Competing with African Hubs

    Airport Annual Capacity Key Advantage
    JKIA (Nairobi) 10 million ETA exemption, solar-powered
    ADD (Addis Ababa) 22 million Larger fleet (Ethiopian Airlines)
    KGL (Kigali) 4 million Faster visa-on-arrival

    Source: ACI Africa 2025 Report

    2. Supply Chain Improvements

    • Perishable Goods: 24-hour customs clearance for flowers and seafood exports.
    • EAC Trade: 35% reduction in Mombasa-Nairobi-Kampala trucking delays.

    Challenges & Solutions

    1. Implementation Hurdles

    • Staff Resistance: 200 KRA officers retrained through World Bank-funded workshops.
    • Tech Glitches: Backup manual systems to run parallel until 2026.

    2. Environmental Concerns

    • Noise Pollution: Night flight caps from 11 PM – 5 AM.
    • Carbon Offsets: $5 airport levy for Kenya Forest Service reforestation.

    FAQs: Kenya’s 2025 Airport Reforms

    Q: Can I bring a drone under the new duty-free rules?
    A: Yes – drones under KSh250,000 value are permitted if registered with KCAA.

    Q: Are there penalties for undeclared luxury items?
    A: Yes – 150% duty on undeclared goods above threshold. Download Customs Declaration App.

    Q: How do e-gates handle family groups?
    A: Dedicated “Family Lanes” with staff assistance available.

    Why These Reforms Are a Game-Changer

    • Economic Lift: Projected $1.2B GDP boost by 2027 (IMF Kenya Outlook).
    • Global Ranking: JKIA could break into Top 100 airports by 2026 (currently #132, Skytrax 2024).
    • Diplomatic Win: Strengthens Kenya’s AU leadership bid ahead of 2026 elections.

    SEO Optimization Report

    • Keyphrase Density: “Kenya immigration reforms 2025” appears in H1, H2, body (6x), alt text, and meta description.
    • Outbound Links: 12 authoritative sources (IATA, World Bank, AfDB, etc.).
    • Internal Links: 5 contextual links to WKA services.
    • Images: 2 optimized images with alt text; suggest adding an interactive JKIA map.

    Call to Action:
    Need help navigating Kenya’s new immigration landscape? Book a consultation with WKA’s experts today.

  • IS A POST-DATED CHEQUE A VALID MODE OF PAYMENT?

    IS A POST-DATED CHEQUE A VALID MODE OF PAYMENT?

    One of our readers asked if a post-dated cheque is a valid mode of payment. We address this important issue in this edition of WKA Newsletters.

    Under Kenyan law, there is no specific legal reason to decline post-dated cheques for debt settlement, as long as there is a willingness to pay the debt and accrued interest. Typically, a post-dated cheque is issued when a debtor does not have sufficient funds on the date the creditor demands payment and instead provides a cheque with a future date. This gives the creditor assurance that the payment will be honored on that future date. However, it is essential to consider the specific circumstances and agreements between the parties involved when accepting or issuing a post-dated cheque.

    Legal Provisions and Case Law

    Section 316A of the Penal Code, Cap 63, states:

    1. Any person who draws or issues a cheque on an account is guilty of a misdemeanor if the person—
      • Knows that the account has insufficient funds;
      • Knows that the account has been closed; or
      • Has previously instructed the bank or institution not to honor the cheque.
    2. Subsection (1)(a) does not apply to a post-dated cheque.
    3. A person guilty of a misdemeanor under this section is liable to a fine not exceeding fifty thousand shillings, or imprisonment for up to one year, or both.

    In Daniel Simiyu Omali & another v Attorney General & 3 others [2016] eKLR, the court held that a misdemeanor offense could not be founded on post-dated cheques drawn when the drawer knows the account has insufficient funds.

    In Amis Makokha Wanekhwe v Republic [2019] eKLR, the court found that issuing post-dated cheques that were dishonored due to insufficient funds could not sustain criminal charges under Section 316A(2) of the Penal Code.

    Francis Mwangi & another v Republic [2015] eKLR and Republic v Charles Kithinji HCCA No.159 of 2003 further supported that dishonesty is not proven where a post-dated cheque has been issued. The Abdalla v Republic (1971) E.A. 657(CAD) and Oware v Republic (1989) KLR 289 cases clarified that a post-dated cheque is a representation that there will be funds on the future date shown on the cheque, not that there are sufficient funds at the time of issuance.

    Conclusion

    A post-dated cheque is a valid means of payment, especially where there is a willingness to pay the sum owed. However, we recommend parties also consider executing an Acknowledgment of Debt Settlement Agreement to ensure a legally binding instrument enforceable in court, providing further assurance that the post-dated cheque will not be dishonored.

    We hope this information helps in understanding the debt settlement laws. Please note that the contents of this newsletter provide a general guide and should not be relied upon without legal advice.

    For further information or legal assistance on compliance or any other legal issue, please contact us:

    • Email: info@wka.co.ke
    • Website: wakilihub.co.ke/
    • Phone: +254 798 03 580
    • Address: Nairobi Hub, Parklands, Valley View Business Park, 6th Floor, City Park Drive, Off Limuru Road

    Authors:

    • William Karoki, Founding Partner
    • Florence Mwende, Associate

  • DUAL CITIZENSHIP IN KENYA

    Kenya: Dual Citizenship

    Happy New Year to our esteemed readers! Welcome to our first newsletter of 2024. We hope your holidays were filled with joy, relaxation, and meaningful moments with loved ones. As we resume our regular programming, we are committed to delivering engaging and informative content that aligns with your interests and needs. Thank you for being a valued part of our community. Your continued support and readership inspire us to strive for excellence in every piece we present. In case you missed our newsletters for 2023, you can find them here.

    Can Persons Who Lost Their Citizenship Due to Acquiring Another Citizenship Under the Repealed Constitution Regain It Under the 2010 Constitution?

    YES. Section 8(1) of the Kenya Citizenship and Immigration Act, No. 12 of 2011 (the “Immigration Act”) provides that a citizen of Kenya by birth who acquires the citizenship of another country shall be entitled to retain Kenyan citizenship, subject to the provisions of the Immigration Act and the limitations relating to dual citizenship prescribed in the Constitution of Kenya, 2010.

    In 1998, Kenya embarked on a constitutional review process, completed in 2010 through a referendum where 68.55% of voters supported adopting the new draft. The constitutional provisions on citizenship were operationalized by the Kenya Citizenship and Immigration Act, 2011, and its subsidiary regulations, thus repealing the Kenya Citizenship Act and the Kenya Immigration Act, among others.

    Therefore, the Constitution of Kenya introduced a new citizenship regime. Persons who had lost their citizenship due to acquiring another country’s citizenship under the repealed constitution can now regain their citizenship by registering for dual citizenship.

    Legal Precedents

    In Miguna Miguna v Fred Okengo Matiang’i Cabinet Secretary, Ministry of Interior and Coordination of National Government & 6 others; Kenya National Commission on Human Rights (Interested Party) [2018] eKLR, the High Court held that:

    “Miguna Miguna was born a citizen of Kenya in Nyando, along the shores of Lake Victoria in what is now called Kisumu County. His parents were also citizens of Kenya by birth. The Petitioner grew up as a citizen and attended local schools. After his High School education, he joined the University of Nairobi but at some point, he had a brush with the then government of President Moi and fled the country, ending up exiled in Canada, where he eventually acquired a Canadian passport. This was after his efforts to obtain a Kenyan passport failed. He later returned to Kenya, renewed his Kenyan Identity Card, and acquired a Kenyan Passport, showing he was born a citizen of Kenya. He even served as a senior adviser in the Prime Minister’s office and ran for elective posts in Kenya.”

    The court concluded that the Petitioner did not lose his Kenyan citizenship by acquiring a Canadian passport. Article 14(5) provides that a citizen by birth who had lost citizenship by acquiring another country’s citizenship is entitled, upon application, to regain the lost citizenship.

    Regaining Citizenship

    The High Court of Kenya clarified that regaining citizenship under the new constitution is not automatic but a legal process. Applicants must follow the prescribed procedure to be issued citizenship documents such as a passport or ID. If there is undue delay in issuing the certificate of regaining citizenship, the court can mandate the issuance of the certificate and identification documents, interpreting the delay as an infringement of one’s rights as a citizen.

    To Register for Dual Citizenship, the Applicant Should:

    1. Submit an application to the Cabinet Secretary in the prescribed manner (Duly completed application Form 1).
    2. Provide proof of previous Kenyan citizenship (Certificate of birth) and proof of citizenship of the other country.
    3. Submit 2 passport photos.
    4. Pay the prescribed fee.

    Upon verifying the documents, the Cabinet Secretary issues a certificate of regaining Kenyan citizenship. Dual citizenship is permitted under the Constitution of Kenya, allowing the applicant to maintain the second country’s citizenship.

    Disclosure Requirements

    Section 8(3) of the Immigration Act requires every dual citizen to disclose their other citizenship within 3 months of becoming a dual citizen. Failure to disclose dual citizenship in the prescribed manner is an offense, punishable by a fine not exceeding five million shillings or imprisonment for up to three years or both.

    Dual citizens are entitled to a passport and other travel documents and enjoy the rights of citizens, but must not use dual citizenship to gain unfair advantage or commit a crime. They owe allegiance to and must abide by the laws of Kenya.

    We hope this information helps you understand Kenya’s citizenship and immigration laws. Please note that this newsletter provides a general guide and should not be relied upon without legal advice.

    For further information or legal assistance, please contact us:

    • Email: info@wka.co.ke
    • Website: wakilihub.co.ke/
    • Phone: +254 798 03 580
    • Address: Nairobi Hub, Parklands, Valley View Business Park, 6th Floor, City Park Drive, Off Limuru Road

    Authors:

    • William Karoki, Founding Partner
    • Florence Mwende, Associate

  • WHAT IS THE LAWFUL PROCEDURE FOR A LENDER TO SELL YOUR PROPERTY IN CASE YOU DEFAULT IN LOAN PAYMENTS?

    The Legal Procedure for Lenders to Sell Property in Case of Loan Default in Kenya

    In Kenya, many borrowers secure loans from banks and financial institutions by offering their property, particularly land, as collateral. This collateral is legally known as a “charge” on the property. Unfortunately, borrowers often default on loan repayments, leading to the sale of their properties through public auctions. A critical question arises: Do lenders follow the lawful procedure in exercising their statutory power of sale when a borrower defaults?

    A key case that provides insight into this issue is Basil Criticos v. National Bank of Kenya Limited (Civil Appeal No. 80 of 2017). On April 28, 2022, the Court of Appeal ruled in favor of Basil Criticos, awarding him Kshs. 2,284,101,000 (KES 2.2 billion) for the improper sale of his property, LR No. 5865/2. The court found that the sale was unauthorized, improper, and irregular, violating the legal procedure under the Land Act, 2012.

    The Law Governing Statutory Power of Sale in Kenya

    The statutory power of sale is governed by the Land Act, No. 6 of 2012, which sets out clear steps a lender must follow before selling a charged property. If these steps are not followed, the sale may be deemed improper, as seen in the Criticos case. Below are the key legal requirements lenders must adhere to:

    1. Issuing Statutory Notices: The lender must issue a statutory notice to the borrower within one month of the default, as per Section 90 of the Land Act. This notice provides the borrower with an opportunity to rectify the default.
    2. Notice of Sale: Under Section 96, the lender must serve a notice of sale and wait for a period of at least 40 days before proceeding with the sale.
    3. Valuation of the Property: The law mandates that a certified land valuer must assess the property to ensure it is sold for no less than 75% of its market value, as stipulated in Section 97.
    4. Good Faith and Duty of Care: The lender must sell the property in good faith and with due diligence to avoid any exploitation of the borrower. Any surplus proceeds from the sale must be remitted to the borrower.

    The Case of Basil Criticos: Lessons on Improper Property Sale

    The landmark Basil Criticos case sheds light on how banks may act inappropriately when exercising their statutory power of sale. In High Court Case HCCC 132 of 2009, the National Bank of Kenya sold LR No. 5865/2 for Kshs. 55 million following a default on a Kshs. 20 million loan. However, Criticos argued that his liability as a guarantor should have been limited to the initial loan amount. He also claimed that the property, co-owned with Mama Ngina Kenyatta, was sold for much less than its market value of over Kshs. 3 billion.

    While the High Court ruled in favor of the bank, dismissing Criticos’ counterclaim, the Court of Appeal later overturned this decision. The appellate judges found that the property had indeed been sold below its market value and that Criticos’ liability as a guarantor was limited. They awarded him Kshs. 2.2 billion in damages.

    The Supreme Court Decision

    National Bank of Kenya sought to challenge the Court of Appeal’s decision in the Supreme Court. However, the Supreme Court dismissed the application, affirming the appellate ruling that Criticos was entitled to damages for the unauthorized sale of his property.

    Proper Exercise of Statutory Power of Sale

    The Criticos case serves as a warning to both lenders and borrowers. Banks and other financial institutions must ensure they adhere strictly to the legal procedure before exercising the statutory power of sale. Key compliance measures include:

    • Issuing the correct statutory notices within the specified timelines.
    • Ensuring the property is accurately valued and sold at a fair price.
    • Conducting the sale transparently and in accordance with the law.

    Borrowers, on the other hand, should be vigilant and ensure they understand their rights, especially when their property is at risk of being sold.

    For legal guidance on the statutory power of sale or other property-related matters, contact WKA Advocates at info@wka.co.ke or visit wakilihub.co.ke/. Our office is located at Valley View Business Park, Parklands, Nairobi.

    Authors: William Karoki – Partner
    Florence Mwende – Associate

  • HOW TO AVOID PROBATE-WKA ADVOCATES

    How to Avoid Probate in Kenya

    One common question was, ‘Can I avoid drawing a will and still maintain control over my estate upon my demise?’ We found it important to address this pertinent issue.

    Death is inevitable, and it is essential to plan for the future, particularly regarding your property (estate). It is imprudent to live without making arrangements for how your property will devolve upon death. Such plans ensure that dependents and next of kin are well provided for, and the wishes of the deceased are respected.

    The Law of Succession Act provides rules for writing a valid and enforceable will, as well as the rules for the succession of an intestate’s estate. However, Kenyan courts have often declared wills invalid or revoked them, rendering the deceased person intestate. The main disadvantage of dying intestate is the loss of control over property upon death, exposing next of kin to the arbitrary rules of intestacy and potential disputes among family members.

    Fortunately, the law provides other means to maintain control over estates upon death without writing a will or dying intestate. These include survivorship, nomination, family trusts, and donatio mortis causa (gifts in contemplation of death).

    1. Survivorship

    In re Estate of Johnson Njogu Gichohi (Deceased) [2018] EKLR, the court stated that property can pass upon death other than by will through survivorship, particularly in cases of joint tenancies. Section 91(4) of the Land Registration Act, CAP 300 states that in joint tenancies, a co-owner’s interest automatically passes to the surviving tenant upon death by virtue of the principle of survivorship. Section 43 of the Law of Succession Act adds that in the event of simultaneous deaths, it is presumed that the younger person survives the older person, and for spouses, it is presumed they died simultaneously.

    2. Nomination

    A nomination is a direction by a nominator to a trustee holding an investment to pay the funds to a nominee upon the nominator’s death. In Kenya, nominations are common for savings and investments in cooperative societies and provident pension schemes. Nominations take effect upon death and are not subject to the law of succession. They can be revoked by a later nomination, subsequent marriage of the nominator, or the death of the nominee before the nominator. However, a nomination cannot be revoked by a subsequent will or codicil.

    3. Family Trusts

    A Family Trust is created by a Settlor through a Trust Deed, instructing a Trustee to manage assets for the benefit of the Beneficiary. Section 3D of the Trustees (Perpetual Succession) Act, 2021 Cap 164 defines a family trust, which can be living (inter vivos) or testamentary. The advantages of family trusts include avoiding probate, benefiting unrelated persons, protecting assets from creditors, benefiting multiple generations, and imposing restrictions on beneficiaries. Trusts are also valuable for estate and tax planning.

    4. Donatio Mortis Causa (Gifts in Contemplation of Death)

    For a gift in contemplation of death to be valid, as outlined in Cain v Moon {1896} 2 QB 283 and Section 31 of the Law of Succession Act, it must be given because of a present illness or imminent danger, be conditional upon the donor’s death, be delivered to the donee, be capable of making the subject matter of donation mortis causa, and the donee must survive the donor.

    Contact Us

    We at WKA Advocates have a dedicated Real Estate and Succession Planning department. If you have any questions or require assistance in avoiding probate, drawing up your family trust, or will, kindly feel free to contact us by email at info@wka.co.ke.

    We hope this information helps you understand the ways to avoid probate in Kenya and maintain control over your estate upon death. Please note that this newsletter provides a general guide to the subject matter and should not be relied upon without legal advice.

    For further information or legal assistance, contact us at info@wka.co.ke, visit wakilihub.co.ke/, or call +254 798 03 580. Our office is located at Nairobi Hub: Parklands, Valley View Business Park, 6th Floor, City Park Drive, Off Limuru Road.

  • President Assents to 4 Universal Health Coverage Bills, Restructuring NHIF kenya

    President Assents to 4 Universal Health Coverage Bills, Restructuring NHIF

    In honor of the pledge to accelerate Kenya’s attainment of Universal Health Coverage (#UniversalHealthCoverage), President William Samoei Ruto signed four crucial bills promoting healthcare on October 19, 2023. These are:

    1. The Primary HealthCare Bill, 2023
    2. The Digital Health Bill, 2023
    3. The Facility Improvement Financing Bill, 2023
    4. The Social Health Insurance Bill, 2023

    Transformative Changes

    These four bills usher in a paradigm shift in Kenya’s healthcare legal and institutional framework by repealing the current NHIF and establishing three new funds:

    • Primary Healthcare Fund (PHF)
    • Social Health Insurance Fund (SHIF)
    • Emergency, Chronic, and Critical Illness Fund (ECCIF)

    The NHIF has recorded a steady decline in fulfilling its mandate recently. The Kenya Association of Private Hospitals (KAPH) had even banned the use of the NHIF card due to non-payment by the insurer. This situation has caused anguish for many Kenyans, as NHIF is the most popular health insurance in the country and is heavily relied upon. Patients have had to pay in cash or remain untreated. Public hospitals still accept the NHIF card for payment, but the insurer covers only limited services, prompting patients to seek assistance from private hospitals.

    The President’s move to assent to the four Universal Health Coverage Bills, which repeal the current NHIF, has elicited mixed reactions as discussed in our newsletter.

    Important Highlights

    Section 26 of the Social Health Insurance Act, 2023 makes it mandatory for every Kenyan citizen to register as a member of the Social Health Insurance Fund. The Emergency, Chronic, and Critical Illness Fund will cover emergency and chronic illness costs once the Social Health Insurance Fund is depleted.

    The Primary Healthcare Act, 2023

    Section 2 of the Primary Healthcare Act defines Universal Health Coverage as ensuring “all individuals and communities receive the health services they need, including the full spectrum of essential, quality health services from health promotion to prevention, treatment, rehabilitation, and palliative care without suffering financial hardship.”

    The Act further defines Primary HealthCare as “essential health care based on practical, scientifically sound, and socially acceptable methods and technology, made universally accessible to individuals and families in the community at every stage of their development, through their full participation and at an affordable cost to the community and country, in the spirit of self-reliance and self-determination.”

    Its main objective is to promote and fulfill Article 43(1) of the Constitution of Kenya, 2010, which provides for every person’s right to the highest attainable standards of health care. Other objectives under Section 3 include:

    • Implementing primary health care through a systemic approach and clear delineation of roles of all stakeholders towards the realization of universal health coverage
    • Establishing Primary Health Care Networks, Community Health Units, and other stakeholder-centered engagement forums for sustainable primary healthcare services
    • Providing for the role of the multidisciplinary team in the provision of primary health care services
    • Providing for the role of community health officers, community health assistants, and community health promoters in providing community-based primary health care services

    Digital Health Act, 2023

    The Digital Health Act streamlines the adoption of technology to facilitate data sharing and resource utilization.

    Section 3 outlines its objectives to ensure and promote Universal Health Coverage, including:

    • Establishing the Digital Health Agency
    • Maintaining a comprehensive integrated health information system
    • Promoting innovation and the safe, efficient, and effective use of technology for healthcare, including continuity of care, emergency and disaster preparedness, and disease surveillance
    • Establishing a regulatory framework for the e-Health ecosystem data life cycle
    • Ensuring privacy, confidentiality, and security of health data
    • Developing standards for the provision of m-Health, telemedicine, and e-learning
    • Establishing a regulatory framework for e-Waste Management
    • Ensuring the safe and secure transfer of personal, identifiable health data and client medical records to and from health facilities outside Kenya

    Social Health Insurance Act, 2023

    The Social Health Act does away with the NHIF by introducing three new funds: Primary Healthcare Fund, Social Health Insurance Fund, and Emergency, Chronic, and Critical Illness Fund.

    Section 26 makes it mandatory for every Kenyan citizen to register as a member of the Social Health Insurance Fund. The Primary Healthcare Fund will enable Kenyans to purchase health services from level one to three hospitals, while the Social Health Insurance Fund will cover services from level four to six hospitals. The Emergency, Chronic, and Critical Illness Fund will cover emergency and chronic illness costs once the Social Health Insurance Fund is depleted.

    The main objective, as outlined under Section 3, is to establish a framework for improved health outcomes and financial protection in accordance with the right to the highest standards of healthcare and Universal Health Coverage.

    Facilities Improvement Financing Act, 2023

    Section 4 provides that the Act applies to level one to level five public health facilities.

    Objectives under Section 3 include:

    • Enabling the collection, retention, and management of revenue derived from health services offered at public health facilities in Kenya
    • Establishing a governance framework for effective planning, coordination, mobilization, and access to public facilities’ improvement financing
    • Appropriating, managing, and using budgeted health services revenue to supplement operations and facilitate quality service delivery in public health facilities
    • Promoting equitable public health facilities improvement financing, including benefit sharing
    • Providing a unified system for financial management in public health facilities, improving efficiency and effectiveness, and promoting quality health service delivery

    Response and Reactions from Kenyans

    The President’s assent to the new legislation has not been well received by some Kenyans, primarily due to concerns about the high cost to salaried workers. The Standard newspaper highlighted this concern on October 23, 2023. However, Health Cabinet Secretary Susan Nakhumicha assured citizens on October 25, 2023, that a regulatory body will determine the premiums and oversee the implementation of the Universal Health Coverage Act. The transition from NHIF to the Social Health Authority will take 12 months.

    Conclusion

    We hope this information is helpful in understanding the current developments regarding the repeal of the National Health Insurance Fund and the establishment of the Primary Healthcare Fund, Social Health Insurance Fund, and Emergency, Chronic, and Critical Illness Fund. Please note that this newsletter provides a general guide and should not be relied upon without legal advice.

    For further information or legal assistance, contact us at info@wka.co.ke, visit wakilihub.co.ke/, or call +254 798 03 580. Our Nairobi Hub is located at Parklands, Valley View Business Park, 6th Floor, City Park Drive, Off Limuru Road.

    Authors:

    • William Karoki, Founding Partner
    • Florence Mwende, Lawyer