Monthly Archives: October 2026

Introduction

Kenya has undergone a significant transformation in its approach to workplace injury compensation, evolving from the colonial-era Workmen’s Compensation Act to a modern, comprehensive statutory regime under the Work Injury Benefits Act, Cap. 236, Laws of Kenya. The Act, which came into force on 2^nd June 2008, fundamentally modernised the country’s approach to workplace safety and compensation. This article provides a comprehensive examination of the work injury compensation framework in Kenya, with a focus on recent judicial developments that have shaped the law.

The Work Injury Benefits Act (WIBA)

The primary legislation governing work injury compensation in Kenya is the WIBA. The Act was enacted to provide for compensation to employees for work-related injuries and diseases contracted in the course of their employment. It establishes a comprehensive scheme covering accidents arising in the course of an employee’s employment, resulting in personal injury.

• Scope of Application

The Act applies to all employees working under a contract of service or apprenticeship, whether local or foreign, covering both the private sector and government institutions, with the only category excluded being members of the armed forces. This broad application ensures that virtually all workers in Kenya are protected under the statutory compensation scheme.

• Types of Compensation

WIBA provides a comprehensive range of compensation benefits to employees who suffer work-related injuries. These include compensation for:

1. Temporary Partial Disablement/Incapacity

2. Temporary Total Disablement/Incapacity

3. Permanent Partial Disablement/Incapacity (PPD)

4. Permanent Total Disablement/Incapacity (PTD)

5. Fatal Workplace Accidents (Dependency Claims)

6. Occupational Diseases

Compensation for the injuries is calculated according to the employee’s earnings and the extent of incapacity. In cases where a workplace injury or occupational disease results in death, the deceased employee’s dependants are entitled to compensation.

• Limitations on Compensation

It is important to note that WIBA contains certain limitations in relation to claims for compensation. First, an employee is not entitled to compensation if an accident that does not result in serious disablement or death is proven to have been caused by the deliberate or wilful misconduct of the employee. Secondly, the law requires that claims be made within twelve (12) months of the accident or discovery of the occupational disease.

One of the most noteworthy features of WIBA is its approach to fault. WIBA operates on a no-fault basis, meaning that an employee does not have to prove negligence on the part of the employer to receive compensation. Instead, the focus is on whether the injury or illness occurred in the course of employment.

• Employer and Employee Obligations

Under WIBA, all employers are legally required to take out a WIBA-compliant insurance policy to cover their workforce against work-related injuries, occupational diseases, permanent disability, or death. Failure by an employer to provide adequate insurance is not only a violation of the Act but also a criminal offence. Additionally, employers have an obligation to report workplace injuries promptly and to ensure that affected employees receive the benefits they are legally entitled to.

Employees also have obligations under WIBA, including reporting workplace injuries promptly, submitting to medical examination as required and cooperating with the claims process.

• Procedure for Lodging and Determining Claims

The procedure for lodging and determining claims entails the following:

1. Reporting the Injury – Upon a work injury or an employee contracting an occupational disease, the injury must be reported to Director of Occupational Safety and Health Services (DOSHS) who has exclusive jurisdiction to hear work injury claims under sections 23 and 25 of WIBA.

2. Medical Examination – Upon lodging a claim, the Director refers the injured employee for medical assessment to determine the degree of incapacity.

3. Assessment and Award of Compensation – Once the degree of incapacity has been determined, an award will be made based on the employee’s monthly earnings and the degree of injury.

4. Enforcement of the Director’s Award – Where a decision has been made and there is no objection or appeal, one can move the ELRC for enforcement of the Director’s award through miscellaneous or ordinary cause pursuant to Rule 69 of the Employment and Labour Relations Court (Procedure) Rules. The ELRC’s role is strictly limited to adoption of the award, and once adopted, the award assumes the character of a court judgment and is executable through ordinary civil execution proceedings.

5. Objection and Appeal – A person aggrieved by the Director’s decision may may file an objection before the Director within 60 days of such decision as provided for under Section 51 of the Act. The Director is mandated to give a written decision on the objection within 14 days of receiving it. An objector may, within 30 days of receiving the Director’s decision on the objection, appeal against the decision to the Employment and Labour Relations Court (ELRC).

Recent Jurisprudence

1. Law Society of Kenya v Attorney General & another [2019] KESC 16 (KLR)

Immediately the Work Injury Benefits Act, Cap. 236 was enacted in 2007, the constitutionality of the same was challenged by the Law Society of Kenya (LSK), leading to a protracted legal battle that would span over a decade and culminate in a landmark Supreme Court decision. On 4^th March 2009, the High Court declared several provisions of WIBA unconstitutional for being inconsistent with various Sections of the former Constitution. Consequently, all WIBA claims found their way back into the courts, with the bulk of them being filed in the Magistrates’ courts because of their pecuniary jurisdiction. Eight years later, the Court of Appeal reversed the High Court’s decision, reinstating the impugned provisions of WIBA.

Aggrieved by the Court of Appeal’s decision, the Law Society of Kenya filed Petition No. 4 of 2019 before the Supreme Court. On 3^rd December 2019, the Supreme Court delivered its landmark judgment in which it upheld the constitutionality of the Act, including the provisions that had been challenged by LSK. The Court affirmed that the DOSHS has exclusive jurisdiction to hear work injury claims and issue awards, and that employees must exhaust the statutory mechanism before approaching the courts.

Following the Supreme Court decision, a critical question arose: what was to become of the thousands of WIBA claims that had been filed in courts during the period between the High Court’s declaration of unconstitutionality (2009) and the Supreme Court’s decision (2019)? To resolve this uncertainty, the Chief Justice issued Practice Directions through Kenya Gazette Notice No. 5476 dated 24^th April 2023 directing that all claims filed after the commencement of WIBA and before the Supreme Court decision at the ELRC or the Magistrates’ Courts shall proceed until conclusion before the said courts. Only suits filed after the Supreme Court Decision with respect to compensation for work-related injuries and diseases shall commence before the DOSHS.

2. Charles v Cheto [2025] KECA 784 (KLR)

The most significant judicial development in recent years is the Court of Appeal’s decision in Charles v Cheto [2025] KECA 784 (KLR), delivered on 9^th May 2025. This decision addressed two persistent issues under WIBA: the absence of an explicit enforcement mechanism for the Director’s awards and the procedural options available to employers who dispute such awards.

First, the Court affirmed that the ELRC is the proper forum to entertain enforcement proceedings of the Director’s award. This conclusion is rooted in Article 162(2)(a) of the Constitution, Section 12 of the ELRC Act, and Section 86 of the Employment Act. The Court noted that, in the absence of a statutory enforcement mechanism, judicial precedent has established that award holders may approach the ELRC to enforce Director’s awards.

Second, the Court provided a workable enforcement framework as follows: Enforcement is to be initiated through miscellaneous or ordinary causes in the ELRC, strictly confined to matters of enforcement. The ELRC’s role is strictly limited to adoption, it cannot entertain factual or merit-based challenges to the Director’s award. In the absence of any valid objection to the award, adoption is a matter of course. Once adopted, the award assumes the character of a court judgment and is executable through ordinary civil execution proceedings.

Lastly, the Court held that where the statutory window for objecting or appealing has lapsed, the only remedy available is judicial review. This must be pursued before adoption proceedings are concluded, and the employer should seek a stay of enforcement proceedings pending determination of the judicial review application. The judgement essentially delivered clarity, finality and enforceable direction in an area where the law has long been plagued by procedural uncertainty.

3. Timsales Limited v Director of Occupational Safety and Health [2025] KEELRC 1626 (KLR)

In this case, the court addressed a critical procedural question: whether the Director, as a decision-maker, can be named as a party on appeal. The court held that the Director is a decision-maker, not a party to the work injury dispute. The procedure under the Act involves the Director making an award, an aggrieved person filing an objection, the Director giving a written decision, and the objector appealing to the ELRC.

Conclusion

Kenya’s work injury compensation regime under the Work Injury Benefits Act (WIBA) has developed into a comprehensive and employee-centred framework founded on the principle of no-fault compensation. Recent judicial decisions have clarified the jurisdiction of the Director of Occupational Safety and Health Services and the Employment and Labour Relations Court, bringing greater certainty to the administration and enforcement of work injury claims. Although challenges such as delayed compensation and insurance non-compliance remain, ongoing legislative and judicial developments continue to strengthen the effectiveness of the system. Employers, employees, and insurers must therefore remain informed and compliant to safeguard their rights and ensure the efficient resolution of work injury disputes.

How ESK Advocates LLP Can Help

ESK Advocates LLP is uniquely positioned to assist employers, employees and insurers in navigating the complex landscape of work injury compensation in Kenya. The firm advises on regulatory compliance, workplace safety and claims management, while representing clients in objections, appeals and enforcement proceedings before the ELRC. We also assist employees in pursuing compensation claims, securing appropriate medical assessments, and enforcing awards, while helping insurers resolve disputes and meet statutory obligations. With extensive experience in employment and labour law, the firm delivers practical, strategic and results-oriented legal solutions tailored to the evolving landscape of work injury compensation in Kenya.

INTRODUCTION

Imagine dedicating several years of your life to creating an innovative product or invention, spending valuable resources, time, skills, and money on its creation, only to find out later that someone else has already started manufacturing, selling, or making money out of it. Few things can be as frustrating as such for innovators, and Patent Law is designed specifically to protect innovators and inventors from such exploitation of their inventions.

Patents are intellectual property rights, which award inventors exclusive rights over their invention for a certain period of time, thus stimulating innovation, investments in research and development, and economic growth.

Patent rights in Kenya are regulated mainly through the Industrial Property Act, 2001, with the Kenya Industrial Property Institute (KIPI) being the government agency that is responsible for the registration and administration of patents. Nevertheless, having a patent certificate is only half of the battle. Patent owners should also know about the process of patent registration, its rights and limitations, what constitutes an infringement of patent rights, as well as legal actions that can be taken in case of violation of their rights.

This article examines the legal framework governing patent registration and infringement in Kenya, highlighting the patent application process, the rights available to patent holders, common instances of infringement, and the available legal remedies.

WHAT IS A PATENT?

A patent is an exclusive legal right granted to an inventor for a new invention that offers a technical solution to a specific problem. The invention may relate to a product, a process, or an improvement of an existing product or process.

A patent does not grant the holder the right to utilize the invention without limitation. Rather, it grants the right to prevent others from making, using, selling, importing, offering for sale, or otherwise commercially exploiting the patented invention without the patent owner’s authorization.

In Kenya, patents are territorial rights. Protection is only available within Kenya unless the inventor also secures protection in other jurisdictions.

WHAT CAN BE PATENTED?

Under the Industrial Property Act, an invention is patentable if it satisfies the following three essential requirements:

1. Novelty

The invention must be new. It should not have been disclosed anywhere in the world before the patent application is filed, whether through publication, public use, sale, or any other means. Even disclosure by the inventor before filing may destroy novelty.

2. Inventive Step

The invention must not be obvious to a person skilled in the relevant field of technology. An invention that merely combines existing knowledge without producing an unexpected technical result may fail this requirement.

3. Industrial Applicability

The invention must be capable of being made or used in some kind of industry. “Industry” is interpreted broadly to include technology, healthcare, agriculture, manufacturing, commerce, and other productive sectors.

WHAT CANNOT BE PATENTED?

The Industrial Property Act excludes certain subject matter from patent protection. These include:

• Discoveries, scientific theories, and mathematical methods;

• Schemes, rules, or methods for doing business, performing mental acts, or playing games;

• Methods for treatment of the human or animal body by surgery or therapy;

• Diagnostic methods practiced on the human or animal body;

• Plant varieties (which are protected under separate legislation);

• Literary, artistic, and other aesthetic creations protected under copyright law; and

• Inventions whose commercial exploitation would be contrary to public order or morality.

THE PATENT REGISTRATION PROCESS IN KENYA

Patent applications are filed with the Kenya Industrial Property Institute (KIPI). The registration process generally involves the following stages:

1. Filing the Application

The applicant submits:

• A completed application form; (Form IP 3 for patents or IP 4 for utility models).

• Patent specification document; describing the invention, the scope of protection sought, drawings where necessary, and an abstract summarizing the invention.

• Payment of the prescribed fees.

The application may be filed by the inventor or an assignee.

2. Formal Examination

KIPI examines the application to determine whether all procedural requirements have been satisfied. Have all the requisite documents been filed or not.

If the application is not procedurally compliant, KIPI issues a formality examination report, and the applicant has 90 days (extendable by another 90 days) to address them.

3. Search and Substantive Examination

KIPI conducts or relies upon an international search and substantive examination to determine whether the invention satisfies the requirements of:

• Novelty;

• Inventive step; and

• Industrial applicability.

Where objections arise, the applicant may amend the application or respond to the examiner’s observations.

4. Grant of Patent

Once the application satisfies all legal requirements, KIPI grants the patent and records it in the Patent Register.

The patent is then published in the Kenya Industrial Property Journal.

Duration of Patent Protection

A patent remains valid for twenty (20) years from the filing date, provided annual maintenance fees are paid. Failure to pay renewal fees may result in lapse of the patent.

Once the patent expires, the invention enters the public domain and may be freely used by anyone.

Rights Conferred Upon a Patent Holder

Registration grants the patent owner exclusive rights to:

• Manufacture the patented product;

• Use the patented process;

• Sell or offer the invention for sale;

• Import the patented product;

• License the invention to third parties;

• Assign ownership of the patent; and

• Institute legal proceedings against infringers.

These exclusive rights enable inventors to commercialize their innovations and recover investments made during research and development.

PATENT INFRINGEMENT

Patent infringement occurs where a person, without the authorization of the patent owner, performs acts reserved exclusively to the patent holder.

Common acts of infringement include:

• Manufacturing a patented product;

• Using a patented manufacturing process;

• Selling or offering for sale patented products;

• Importing patented products into Kenya;

• Stocking patented products for commercial purposes; and

• Inducing another person to infringe the patent.

DEFENCES TO PATENT INFRINGEMENT

A person accused of infringement may rely on certain defences, including:

• 1. Prior Use

Where a person had already begun using the invention in good faith before the filing date of the patent application, they may continue such use.

• 2. Experimental Use

Acts carried out solely for scientific research or experimentation may not amount to infringement.

• 3. Private and Non-commercial Use

Certain private acts undertaken without commercial purpose may fall outside the scope of infringement.

• 4. Invalidity of the Patent

The alleged infringer may challenge the validity of the patent on grounds such as:

• Lack of novelty;

• Obviousness;

• Lack of industrial applicability;

• Insufficient disclosure; or

• Failure to satisfy statutory requirements.

If the patent is declared invalid, the infringement claim fails.

REMEDIES FOR PATENT INFRINGEMENT

Where infringement is established, Kenyan courts may grant various remedies depending on the circumstances of the case.

• 1. Injunctions

The court may issue interim or permanent injunctions restraining further infringement.

• 2. Damages

The patent owner may recover monetary compensation for losses suffered as a result of the infringement.

Where appropriate, damages may include lost profits or reasonable royalties.

• 3. Account of Profits

Instead of damages, the patent owner may elect to recover profits earned by the infringer from the unlawful exploitation of the invention.

• 4. Delivery Up or Destruction

The court may order infringing goods, machinery, packaging materials, or implements used in infringement to be surrendered or destroyed.

LICENSING AND ASSIGNMENT OF PATENTS

Patent owners may also derive benefits from their innovations without necessarily or directly manufacturing their products.

Instead, they may;

• Grant licences to third parties in exchange for royalties;

• Assign ownership of the patent outright; or

• Enter into joint commercialization arrangements.

To be enforceable against third parties, assignments and licences should be registered with KIPI in accordance with the Industrial Property Act.

INTERNATIONAL PATENT PROTECTION

Patent rights are territorial. Registration in Kenya does not automatically protect an invention in other countries.

Kenya is a member of several international intellectual property treaties, including the:

• Paris Convention for the Protection of Industrial Property;

• Patent Cooperation Treaty (PCT); and

• Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

These treaties facilitate international filing procedures but do not automatically confer worldwide patent protection.

CONCLUSION

Every successful invention starts with an idea, but only a protected idea can truly become a valuable asset. Registering your patent is an investment in your innovation, your business, and your future. Taking the right legal steps today can save you significant time, money, and disputes tomorrow.

At ESK Advocates LLP, we provide reliable legal support on all aspects of patent law, from registration and licensing to enforcement and dispute resolution. Contact us today and let us help you protect what you’ve created before someone else claims it.

Introduction

The proliferation of digital communication platforms has fundamentally transformed the manner in which disputes arise, are investigated and ultimately determined by courts. Further, the digitalization of communication has altered the evidentiary landscape of modern litigation where litigants place before Courts WhatsApp conversations, screenshots, social media posts, emails, audio recordings, photographs, videos, CCTV footage, call logs and other forms of electronically generated material as evidence in support of their cases.

However, the fact that information exists electronically does not, by itself, make it automatically admissible or conclusive as such, various laws have been passed establishing the framework intended to ensure that electronic evidence is sufficiently authentic, reliable and capable of being properly attributed to its alleged originator.

In the circumstance, the Kenyan courts are mandated to ensure that the electronic evidence produced by a party is relevant, authentic, admissible and compliant with the statutory provisions.

The principal provisions governing electronic and digital evidence are enshrined in Sections 78A, 106A and 106B of the Evidence Act, Cap. 80 as read together with Articles 31 and 50 of the Constitution of Kenya (2010) that is right to privacy and the right to a fair hearing respectively.

1. Admissibility of electronic and digital evidence

The production of electronic evidence does not automatically guarantee admissibility of the said evidence. Section 78A of the Evidence Act (Cap 80, Laws of Kenya) provides for the admissibility of electronic and digital evidence in legal proceedings. Section 78A(2) provides that a court should not reject electronic or digital evidence merely because it is not presented in its original form. This is significant because most of the electronic evidence tendered in the Kenyan courts take the form of printouts, copies, screenshots or extracts rather than the original electronic file or device.

The courts have repeatedly held that Sections 78A and 106B must be considered together where the electronic record falls within the statutory requirements of Section 106B.

In Mwaganda v Mbangha [2022] KEHC 17091 (KLR), the High Court considered printed WhatsApp messages and observed that the process of taking screenshots, transmitting them electronically, downloading them and subsequently printing them constituted electronic records. The court consequently held that Sections 78A and 106B had to be complied with.

In Mugania & 3 Others v Meru County Government & 3 Others [2026] KEELC 117 (KLR), the court rejected the argument that Section 106B applies only to criminal proceedings and held expressly that the provision applies to both civil and criminal proceedings. The court further held that WhatsApp messages could be admitted subject to compliance with Section 106B.

Thus, in Kenyan Courts, the practical position is that Digital evidence may be admissible, but the party seeking to rely upon it must still establish the necessary evidentiary foundation.

2. The Authentication Framework

Authentication is the process of establishing that the digital evidence fits and relates to the intended use and parties, i.e has not been altered and/or manipulated. Section 106A of the Evidence Act provides that the contents of electronic records may be proved in accordance with Section 106B, therefore establishing Section 106B as the central test for admissibility of electronic records that are tendered as computer output.

In the case of Commissioner for Human Rights & Justice (CHRJ) vs Victoria Mutuku & others (2021), the court stated that there must be sufficient certainty that digital evidence was handled in a manner that did not compromise its integrity.

Section 106B(4) provides for need of a certificate that the party relying on electronic evidence is required to produce in court in order to assess the authenticity and integrity of the electronic record. The Certificate should:

a) identify the electronic record;

b) describe the manner in which the record was produced;

c) provide appropriate particulars of the device involved in producing the record;

d) address the statutory conditions under Section 106B(2); and

e) be signed by a person occupying a responsible position in relation to the operation of the relevant device or management of the relevant activities

In County Assembly of Kisumu & 2 Others v Kisumu County Assembly Service Board & 6 Others [2015] KECA 397 (KLR), the Court of Appeal explained that Mandatory Statutory requirement for a certificate exist because electronic evidence is susceptible to manipulation. The court also pointed out that the Evidence Act does not prescribe a particular format for the certificate. It may take different forms, including, in appropriate circumstances, averments contained in an affidavit which satisfy the statutory requirements.

Kenyan courts have frequently rejected electronic evidence where the statutory foundation has not been established. In Shorcha v Republic [2024] KEHC 5835 (KLR), the High Court held that the failure to produce the requisite Section 106B certificate rendered the electronic photographs inadmissible and directed that they be expunged from the record.

In the circumstance, it is therefore important to comply with Section 106B where the digital evidence is central to your case. Its evidentiary foundation should also be considered at the point of collection, preservation and preparation of the evidence for trial. For example,

i. WhatsApp messages – they may contain admissions, contractual negotiations, instructions, threats, acknowledgements of debt, employment communications, disciplinary discussions or other information directly relevant to a dispute. In AWG v SG & 2 Others [2025] KEHC 12614 (KLR), the High Court Judge illustrated the nature of objections that may arise in relation to WhatsApp screenshots, including concerns about whether the identity of the sender and recipient, date, time and context can be established and stated that a screenshot should not automatically be treated as conclusive merely because it appears to show a conversation.

ii. Emails printouts – they are relied upon to provide a stronger evidentiary trail than screenshots because they may contain information such as sender and recipient details, dates, timestamps, subject lines and attachments. In Florence Mueni Mbuvi v Faustina Holdings Limited & Another [2021] KEELC 265 (KLR), the court considered emails downloaded and printed from a computer and found that the emails and accompanying certificate satisfied the Section 106B requirements.

iii. CCTV, photographs, audio and video are also widely relied upon as evidence and require authentication and proper storage as they are prone to manipulation and editing. In the case of Keter & another vs Republic (2022), the Court considered the admissibility and authentication of video evidence and emphasized the importance of the authentication process.

Digital evidence at times may be subjected to expert witness/evidence in order to verify, confirm and/or provide evidence where the authenticity and integrity of the evidence is seriously disputed and/or challenged.

3. Privacy and Data Protection Considerations

Article 31 of the Constitution protects the right to privacy, including the right not to have the privacy of a person’s communications infringed. This is particularly significant where digital evidence has been obtained from another person’s phone, a private email account, a WhatsApp account, a password-protected computer, private cloud storage, workplace systems containing personal communications and/or another person’s private electronic account.

Article 50(4) is relevant to the above discourse, and it reads “Evidence obtained in a manner that violates a right or fundamental freedom in the Bill of Rights should be excluded if admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice”. In Cheruiyot v Ethics and Anti-Corruption Commission [2023] KEHC 3918 (KLR), the High Court observed that not all illegally obtained evidence is automatically excluded; the constitutional test under Article 50(4) requires consideration of whether admission would render the trial unfair or otherwise be detrimental to the administration of justice.

At the same time, recent decisions demonstrate that privacy violations can have serious evidentiary consequences. In Muchemi v Muchemi [2025] KEELRC 2862 (KLR), the court considered Article 31 alongside Article 50(4) and emphasized the importance of the manner in which covert recordings are obtained, authenticated and presented. The Kenyan Court have adopted the approach of constitutional balancing, rather than an automatic rule of inclusion or exclusion.

The Data Protection Act, 2019 adds another dimension to the analysis of the issue as to whether the collection, disclosure, storage or use of such material complies with applicable data-protection obligations. Digital communications frequently contain personal data: names, telephone numbers, photographs, financial information, employment information, location information and private correspondence.

4. Chain of Custody and Preservation

Where digital evidence is likely to be contested, preservation should begin immediately. This is particularly important for audio recordings, videos, photographs, exported WhatsApp conversations and other files capable of being edited. This is to ensure that the authenticity of the evidence is preserved.

5. Digital Evidence and Trial by Ambush

It is trite in the Kenyan Courts that, electronic evidence should not ordinarily be introduced at the last minute in a manner that deprives the opposing party of a fair opportunity to examine or challenge it, this is based on the principle of procedural fairness. Article 50(2)(j) of the Constitution protects an accused person’s right to be informed in advance of the evidence the prosecution intends to rely upon and to have reasonable access to that evidence.

Article 50(4) requires the court to consider whether admission of digital evidence would render the trial unfair or otherwise be detrimental to the administration of justice following collection of such evidence through an infringement of privacy or another fundamental right.

Conclusion

Digital communications are now an established and increasingly important category of evidence in Kenyan litigation. Section 78A of the Evidence Act expressly recognizes the admissibility of electronic and digital material, while Sections 106A and 106B provide the statutory framework through which electronic records may be produced and proved.

A party seeking to rely upon digital evidence must be prepared to establish its authenticity, integrity, origin and reliability and, where applicable, comply with Section 106B, including the certificate requirement.

How ESK Advocates LLP Can Help

At ESK Advocates LLP, our Dispute Resolution Team advises and represents clients across a broad spectrum of civil, commercial and labour disputes. We approach each matter with a clear understanding of the client’s commercial, legal and strategic objectives, developing focused litigation strategies designed to protect our clients’ interests and achieve effective outcomes.

Modern disputes increasingly turn on evidence generated, stored or communicated electronically. Our team is adept at navigating the evidentiary issues that arise from digital material, including its preservation, relevance, authenticity, admissibility and presentation before courts and tribunals. We apply the relevant statutory and evidentiary principles to ensure that electronic evidence is properly identified, preserved and deployed, while anticipating challenges to its admissibility and evidentiary weight.

Whether dealing with contractual disputes, employment and labour claims, commercial conflicts or complex civil litigation, we combine rigorous legal analysis with a practical appreciation of how evidence-including digital evidence-can shape the outcome of a dispute. Our objective is not simply to respond to litigation, but to build and advance cases strategically, with the evidence and the client’s interests at the centre of our approach.

Article By:

Anastacia Njambi

Legal Assistant

Disclaimer:

This publication is for informational purposes only and does not constitute legal advice. For tailored legal support, kindly consult our team.

CONTACT US

0717991970

info@eskadvocates.co.ke

eskadvocatesllp.co.ke

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@eskadvocatesllp

THE ESK LEGAL BRIEF

FINANCING & SECURITIZATION OF INTELLECTUAL PROPERTY RIGHTS: KENYA’S IPR FINANCING AND LESSONS FROM THE USA AND THE UK

Introduction

For many businesses, some of their most valuable assets cannot be seen or touched. A company’s brand, patent, copyright, designs or other intellectual property (IP) may be central to its business and may generate significant income, yet when that business approaches a bank for financing, the conversation often turns to whether it has land, buildings, motor vehicles or other tangible assets.

So, can intellectual property itself be used to secure financing in Kenya? The answer is yes. The Movable Property Security Rights Act, 2017 (MPSRA) provides a legal framework for creating security rights over movable property, including intangible assets such as intellectual property rights. The Act expressly recognises intellectual property as an intangible asset and provides a framework for creating security rights over movable assets. This creates an opportunity for businesses to look beyond traditional forms of collateral.

Internationally, however, the concept has gone further. In the United States, intellectual property has been used not only as collateral for lending but also in securitisation. The United Kingdom has developed practical tools to help lenders and businesses identify, evaluate, and use IP in financing.

In this article, we look at how businesses in Kenya can secure financing through their intellectual property, while considering what Kenya can learn from international practice.

Intellectual Property as Collateral

The Movable Property Security Rights Act recognises this reality, and that is one of the issues it was intended to solve. The Act defines an “intangible asset” to include intellectual property rights, among other forms of intangible property.

It permits a security right to be created over movable property, including intangible assets. This is important because the economic value of businesses may be more in assets such as software, patents, copyrights, trademarks and other intangible assets.

From an international perspective, Kenya has a lot to borrow from other countries. In the United States, for example, Article 9 of the Uniform Commercial Code (UCC) provides a general framework for security interests in personal property. Its definition of “general intangible” encompasses a broad range of non-physical assets, including software, and Article 9 provides mechanisms for attachment and perfection of security interests, including filing in the ordinary case.

The UK has similarly recognised the importance of identifying and valuing IP in financing transactions. The UK Intellectual Property Office has published the IP Finance Toolkit specifically intended to help businesses present the IP as security when seeking finance and to help banks recognise the value of IP within a business.

How Is a Security Right Created Over IP?

In Kenya, the MPSRA generally requires a security agreement between the parties. Under Section 6 of the Act, a security right is created by a security agreement where the grantor has rights in the collateral or the power to encumber it.

The security agreement must be in writing and signed by the grantor. It must identify the parties, describe the secured obligation and describe the collateral in a manner that reasonably allows it to be identified.

This is where proper IP due diligence becomes particularly important. A lender should not simply receive a general statement that a company owns “valuable intellectual property.” The relevant IP should be identifiable, and the borrower should be able to demonstrate its rights in that IP.

For example, where the security concerns a trademark, the parties should establish its registration and ownership. Where copyright is involved, the title or licences should be examined. For patents, the parties should consider the registration, ownership, remaining term and any existing licences.

The Importance of IP Ownership and Chain of Title

One of the most important questions when intellectual property is offered as collateral is simple: Does the borrower actually own the rights it is offering as security?

Intellectual property can pass between individuals and companies through assignments, employment arrangements, licences or other arrangements. In some cases, businesses may assume that because an employee created something for the company, or because a director of a company owns intellectual property, the company automatically owns every relevant right.

This wrong assumption can create significant problems. The Court of Appeal’s decision in Mhubiri Productions Ltd v Safaricom Ltd & another [2020] KECA 74 (KLR) illustrates the importance of establishing ownership and documenting transfers of IP rights. The case concerned musical works by Tanzanian artist Upendo Nkone. Gaudencia Mkakeni had acquired rights in the works before Mhubiri Productions Ltd was incorporated. After the company was incorporated, it claimed that its copyright had been infringed when the music was made available as ringtones through Safaricom’s Skiza platform.

A key issue was whether Mhubiri Productions Ltd had actually established ownership of the copyright. The copyright registration was in Gaudencia Mkakeni’s name, although she was a director and shareholder of the company. The Court of Appeal emphasised that Gaudencia and the company were separate legal persons and found insufficient evidence that the relevant copyright had subsequently been transferred or assigned to the company. The Court therefore upheld the finding that Mhubiri Productions Ltd had failed to establish ownership of the copyright it sought to enforce. Although Mhubiri Productions was not a financing case, its significance to IP financing is clear.

A lender can only take effective security over rights that the borrower actually owns or has the legal power to encumber. The case therefore illustrates the importance of establishing a clear chain of title before intellectual property is used as collateral. A lender should establish who owns the relevant IP, how ownership was acquired and whether the transfer of rights was properly documented.

This is important for companies whose IP may have been developed by founders or employees.

Registration of Security Rights and Why the Collateral Registry Matters

Creating a security agreement is only part of the process. The MPSRA establishes the Collateral Registry, which provides a system for registering notices of security rights in movable property.

Registration is important because it provides notice to third parties and plays an important role in determining priority.

Under Section 15 of the MPSRA, a security right in movable property becomes effective against third parties when a notice concerning the security right is registered with the Registrar. The Act also provides rules for determining priority between competing security rights.

The importance of registration where there are competing securities was demonstrated in I & M Bank Limited v ABC Bank Limited & another [2021] KEHC 12977 (KLR). The High Court has noted that, under Section 38 of the MPSRA, priority among competing security rights created by the same grantor in the same collateral is generally determined according to the time of registration. In this instance, the court held that because ABC’s debenture was not registered under the MPSRA while I&M’s debenture was duly registered, I&M’s security ranked first in priority. A lender considering financing against IP needs to know whether another creditor has already taken security over the same assets.

A security agreement creates the security right, while registration relates to effecting the security against third parties and their priority.

International Practice: From IP Collateral to IP Securitisation

Using intellectual property as collateral for a loan is different from IP securitisation. An ordinary IP-backed loan involves a lender advancing money to a borrower and taking a security interest over specified IP.

Securitisation, on the other hand, involves a more sophisticated process, but in simple terms, securitisation involves taking assets or income streams that generate, or are expected to generate, cash flows and structuring them to support securities issued to investors.

For example, imagine a record label owns the rights to a portfolio of music and receives royalty payments every year.

Instead of waiting for those royalties to be paid over several years, the company could structure a transaction under which the relevant income-generating assets or receivables are transferred to a special purpose vehicle (SPV). The SPV could then issue securities to investors, with the investors’ returns being supported by the future royalty income.

This is different from simply using a trademark, patent or copyright as collateral for a conventional loan. Securitisation involves a more structured transaction, usually involving an SPV, a transfer or assignment of assets or receivables, investors, trustees and arrangements for collecting and distributing the resulting cash flows.

IP Securitization in the United States of America

The United States provides one of the clearest examples of the development of this concept. Its secured-transactions framework under Uniform Commercial Code (UCC), Article 9 provides a broad legal structure for taking security interests in personal property, including general intangibles. In addition, the USA has developed sophisticated capital markets capable of transforming predictable IP-related revenues into investment products.

One of the most famous examples is the transaction popularly known as the “Bowie Bonds.” In 1997, David Bowie raised US$55 million through securities backed by future royalty income associated with 25 of his pre-1990 albums. The transaction allowed Bowie to receive substantial financing upfront rather than waiting for the royalties to be received over time. The transaction has since become one of the best-known examples of the securitisation of IP.

The United Kingdom: Making IP Visible to Lenders

The UK provides a somewhat different, more relevant lesson for Kenya. Rather than focusing only on sophisticated securitisation, the UK has placed considerable emphasis on making IP understandable and usable within business.

The UK Intellectual Property Office has developed guidance specifically directed at businesses and lenders. Its IP Finance Toolkit is intended to help businesses document their IP, present its economic worth when seeking finance and help lenders recognize the value of IP within a business.

The UKIPO also identifies several methods for valuing IP, including cost-based, market-based and income or economic-benefit approaches. It notes that the value of IP can depend upon the future income it generates and that valuation necessarily involves consideration of future risks.

How does the UK IP Finance framework look like? Securing financing against intellectual property typically involves three key stages:

i. Identification and Profiling – The borrower must identify and document the IP proposed as security, including ownership, registration status, existing encumbrances and its contribution to the business. A clear and properly maintained IP register is therefore critical at the outset.

ii. Valuation – The identified IP is subjected to a formal valuation by a suitably qualified valuer using an appropriate and recognised valuation methodology. The valuation provides the lender with an assessment of the asset’s economic value and its potential as collateral.

iii. Collateral and Credit Assessment – The lender then considers whether the IP is legally enforceable, transferable and sufficiently marketable to constitute acceptable security. The assessment also considers the concentration and commercial significance of the IP, alongside the borrower’s broader creditworthiness.

The process may take several weeks, particularly where the business has not previously undertaken an IP audit or maintained a comprehensive IP register. Proper IP documentation, clear ownership and early identification of potential encumbrances can therefore significantly improve the borrower’s preparedness for IP-backed financing.

The above is particularly relevant to Kenya and its local credit and financing options. One of the difficulties facing Kenyan financial institutions is not that the law prohibits taking security over IP. The issue is in determining what the IP is worth, whether it can generate cash flow and what would happen if the borrower defaults.

Conclusion

Intellectual property has traditionally been discussed mainly in terms of protecting it. That is, for instance, registering a trademark, obtaining a patent, protecting a design or enforcing copyright. However, businesses need to think about IP in another way as an economic asset.

The Movable Property Security Rights Act, 2017 provides an important foundation for recognising the said economic value by allowing security rights over movable property, including intangible assets and intellectual property rights.

There is a lot to learn from the international perspective, but the most important first step is to create the conditions in which IP can be identified, owned, protected, valued, commercialised and accepted as an economic asset.

How ESK Advocates LLP Can Assist

At ESK Advocates LLP, we advise businesses on the protection, ownership and financing of intellectual property. Our work includes IP due diligence, reviewing security documentation, registration and advice on the legal issues arising where intellectual property is involved.

As many businesses rely on intangible assets, understanding how those assets can be protected and commercialised is becoming an important part of business planning. Reach out to ESK Advocates LLP to discuss how your business can better protect and leverage its intellectual property.

Article By:

Charles Chahilu

Associate Advocate

Disclaimer:

This publication is for informational purposes only and does not constitute legal advice. For tailored legal support, kindly consult our team.

CONTACT US

0717991970

info@eskadvocates.co.ke

eskadvocatesllp.co.ke

Occidental Plaza, Westlands

@eskadvocatesllp

THE ESK LEGAL BRIEF

THE COMPLIANCE GAPS HIDING IN PLAIN SIGHT: WHAT RECENT ODPC DETERMINATIONS TEACH BUSINESSES

Introduction

The Data Protection Act, 2019 places significant obligations on organisations that collect, use, disclose, store or otherwise process personal data. These obligations extend beyond registration with the ODPC or having a privacy policy on a website. Businesses must be able to demonstrate, in their day-to-day operations, that personal data is processed lawfully, fairly and transparently, for specified purposes and in accordance with the rights of data subjects.

Recent determinations by the Office of the Data Protection Commissioner (ODPC) demonstrate the consequences of failing to do so. Depending on the circumstances, non-compliance may result in compensation, enforcement notices or other corrective measures. In some cases, the ODPC has also recommended prosecution for failure to cooperate with regulatory investigations. This article considers a selection of recent determinations and identifies the recurring compliance gaps that businesses should look out for and address before they crystallise into legal disputes.

Compliance Gaps

a) The Duty to Notify and Compliance During Mergers & Acquisitions

Section 29 of the Data Protection Act imposes a duty on a data controller or processor to inform a data subject of prescribed matters when collecting personal data. The duty to notify under this section is proactive, mandatory, and continuous.

In Margaret Manyange v Brites Management Services Limited (ODPC/CIE/CON/2/3(199)), the ODPC found that emails sent to the Complainant containing links to the Respondent’s website did not fulfil the requirements of Section 29 as they did not notify the data subjects of their rights, the nature of the data collected, the purpose of processing, third-party disclosures, or the consequences of withholding data. The determination underscores the importance of specific and substantive notification at the appropriate stage of the processing rather than merely directing a data subject to a generic privacy policy buried in a website.

Likewise, in Catherine Wairimu Gabriel v Penda Health Limited (ODPC/CIE/CON/2/3(211)), the ODPC considered the position of personal data acquired following a corporate acquisition. The Complainant’s data had originally been collected by Grace Health. Following the acquisition, Penda Health became the new data controller. The ODPC held that the acquisition of the data did not extinguish Penda Health’s independent obligation to notify the data subject, in clear terms, of the fact of processing, the purpose, her rights as a data subject, the identity of the new controller, and the safeguards in place. The ODPC found that a single WhatsApp message inviting the Complainant to continue accessing similar services did not meet the statutory requirements.

The Penda Health determination has particular significance for mergers and acquisitions, which transactions mostly involve the transfer of customer databases, employee records, subscriber information and other personal data from one entity to another. The ODPC’s approach in this determination demonstrates that the acquiring entity cannot simply assume that all data protection obligations have been discharged because the acquired entity previously collected the data lawfully. The acquiring entity should therefore establish what categories of personal data are being acquired, the purposes for which the data was originally collected and whether the proposed post-acquisition use is compatible with the original purpose, among others.

b) Consent Must Be Documented and Capable of Proof

One of the recurring weaknesses emerging from recent determinations is the inability of organisations to demonstrate the consent upon which they rely. Section 32(1) of the Data Protection Act places the burden of proving consent on the data controller. Where an organisation relies on consent as its lawful basis for processing, it should therefore be able to demonstrate when, how and for what purpose that consent was obtained.

In Merceline Akoth Odeyo v St. Luke Orthopaedic & Trauma Hospital Eldoret (ODPC/CIE/CON/2/3(247)), the hospital claimed the Complainant gave verbal consent to the outsourcing of her testing to a third-party laboratory. The ODPC held that the failure to provide any record of written consent meant the hospital could not demonstrate that the alleged verbal consent met the legal standard of explicit and informed consent. Therefore, where an organisation relies upon consent, it must maintain adequate evidence demonstrating that the consent was validly obtained and related to the relevant processing.

The issue of consent does not end with obtaining consent. Businesses must also respect its withdrawal. In Catherine Wairimu Gabriel v Penda Health Limited above, the Complainant withdrew consent, but a subsequent communication was sent to her. The Respondent’s characterisation of the subsequent message as an operational error did not absolve it of liability. Consent is therefore not a one-time event. Organisations should have systems for recording consent, identifying the purposes for which it was given and promptly implementing withdrawals.

c) Purpose Limitation: Consent for One Purpose Is Not a Blank Cheque

Section 25(c) of the Data Protection Act requires personal data to be collected for explicit, specified and legitimate purposes and not further processed in a manner incompatible with those purposes.

In Margaret Manyange v Brites Management Services Limited discussed above, the Complainant had shared her CV with one specific prospective employer. The CV was subsequently shared with a different law firm. The ODPC found that the original consent did not provide a blanket authority to share it with whoever the organisation thinks might be interested.

The principle has practical consequences for businesses whose operations involve repeated sharing of personal data including customer information. Businesses must therefore ask a simple question before undertaking secondary processing: Is this use of the data consistent with the purpose for which the data was originally collected, or do we need a new lawful basis?

d) Third-Party Service Providers Do Not Take Away the Controller’s Responsibility

Businesses frequently rely on external service providers for website development, cloud storage, marketing, payroll processing, customer relationship management and other functions involving personal data. This however, does not transfer the obligations under the Data Protection Act to the third-party service providers. In Arthur V.O Opinya & 2 Others vs. Brainstorm Insurance Brokers Limited (ODPC/CIE/CON/2/3(198)), the Respondent attempted to blame its web developer for mistakenly uploading the Complainants’ names, titles, and professional accolades onto its website and in a licence application. The ODPC rejected this defence, holding that the Respondent, as the data controller, remained fully responsible for ensuring compliance.

Likewise, in Merceline Akoth v St. Luke Orthopaedic & Trauma Hospital, the ODPC held that the existence of a Data Sharing Agreement with a referral laboratory did not negate the Respondent’s obligations concerning the sharing of sensitive health data. This decision also reinforced the obligations when processing sensitive data which includes data relating to one’s health. The ODPC held that Section 45 of the Act sets out the permitted grounds for processing sensitive data, and legitimate interest of the Respondent does not fall within those grounds.

The Respondent’s reliance on legitimate interest as a lawful basis for transferring the Complainant’s samples to a third-party laboratory was therefore misplaced. The ODPC further found that the admission of an administrative error in processing the test results demonstrated a failure to implement adequate technical and organisational measures under Section 41 of the Act.

Practical Recommendations for Businesses

a) Operationalize Privacy Policies

Businesses must move beyond tick-box compliance and embed data protection into their operational DNA. The starting point is to operationalise privacy policies by ensuring that the stated channels, processes, and escalation mechanisms actually work. A published policy that lists an email address no one monitors is not compliance, it is a liability waiting to crystallise.

b) Build an Evidence Trail for Consent

Where consent is relied upon, businesses should maintain evidence showing: what the data subject consented to; when consent was obtained; the purpose for which it was obtained; how it was obtained; whether consent was subsequently withdrawn; and what action was taken following withdrawal. The organisation should be able to retrieve this information when required.

c) Map Purposes Before Sharing Data

Before transferring personal data to another department, affiliate, customer, contractor or service provider, businesses should establish the original purpose of collection and the legal basis for the proposed disclosure. A simple internal approval process for new uses of personal data can prevent significant compliance failures.

d) Strengthen Third-Party Data Governance

Businesses should identify every third party that handles personal data on their behalf and establish whether that party is acting as a processor, controller or another form of data recipient. Contracts should address the applicable data protection obligations and should be supported by practical monitoring and oversight.

e) Include Data Protection in M&A Due Diligence

Where personal data forms part of the assets or operations being acquired, due diligence should cover the target’s data collection practices, consent records, privacy notices, data-sharing arrangements, processors, retention policies, complaints, breaches and regulatory history. The transaction documents should also address the allocation of data protection responsibilities following completion.

How ESK Advocates LLP Can Help

Our data protection and privacy team advises businesses across Kenya on the full compliance lifecycle, including ODPC registration, compliance gap assessments and audits, data protection impact assessments, breach response, data processing and sharing arrangements, and representation in ODPC complaints and enforcement proceedings. The recent enforcement environment demonstrates the importance of proactive compliance. Businesses that identify and address compliance gaps early are better placed to manage regulatory exposure and respond effectively when complaints or investigations arise.

Article By:

Frankline Ojanji

Associate Advocate

Disclaimer:

This publication is for informational purposes only and does not constitute legal advice. For tailored legal support, kindly consult our team.

CONTACT US

0717991970

info@eskadvocates.co.ke

eskadvocatesllp.co.ke

Occidental Plaza, Westlands

@eskadvocatesllp

THE ESK LEGAL BRIEF

SPOTCHECK ON THE LAW OF SUCCESSION: OVERLOOKED AND UNDERUTILISED PROVISIONS IN KENYA

Introduction

When people think about succession in Kenya, the conversation usually revolves around obtaining a grant, confirming it and distributing the deceased’s property. All these are, of course, the central parts of succession proceedings, but far beyond these, the Law of Succession Act, Cap. 160 contains several other provisions that are often a times overlooked, yet they are equally as important.

This article highlights some of these provisions and why they matter in practice.

1. Reasonable Provision for Dependants (Sections 26-29)

Not every person who depends on a deceased person will necessarily receive what they consider to be a fair share of the estate.

This is why Sections 26-29 of the Law of Succession Act provide a remedy where the deceased’s will or the rules governing intestacy have not made reasonable provision for a dependant. The court has discretion to make appropriate orders, including awarding a specific share of the estate or providing for periodic payments.

This is particularly important because succession is not always simply a question of applying a mathematical formula. The circumstances of the dependants also matter.

In Okello v Onyango [2023] eKLR, the High Court discussed the distinction between persons who qualify as dependants by virtue of their relationship with the deceased and those who must demonstrate actual dependency. In this case, the court defined who a dependant is, and whether they are entitled to reasonable provision. The court held as follows.

“The categories of dependants in section 29 are 2. The first category is of the spouses and children of the deceased. These do not have to prove dependency, that is that they were dependent on the deceased. The appellant was not a spouse nor child of the deceased, so he did not fit within this category. The second category is of those who have to prove dependency. It comprises largely of individuals who were not immediate survivors, that is individuals who do not fall within the circle of spouses and children. Those in the second category are parents, stepparents, grandparents, grandchildren, stepchildren, children whom the deceased had taken into the family as his own, siblings, halfsiblings and the husband of the deceased, if the deceased was a woman. Going by the second category, it would appear that the appellant herein qualified to bring an application, being a brother or sibling of the deceased.

19.Being a brother is one thing, being dependent on the deceased is another. A brother of the deceased would qualify to bring an application, under section 26, as a dependant, upon proof that he was dependent on the deceased during his lifetime. Dependency is gauged along the lines of depending on the deceased for his wellbeing. The best test would be whether he was dependent in the same mode as an immediate family member, a wife or child of the deceased. Did he depend on him for food, shelter, clothing, medical care, educational or schooling needs, among others? If the alleged dependency was within that mode, then he would fit the definition of a dependant.”

The upshot of this is that where a person believes that they have been inadequately provided for, Sections 26-29 may provide an additional avenue for relief.

2. Previous Gifts May Affect the Final Distribution (Section 42)

It is not uncommon for parents to give property to some of their children during their lifetime. The question is what happens when the parent eventually dies and the remaining estate is being distributed.

Section 42 requires certain previous benefits given to children, grandchildren or spouses should be taken into account when determining their shares of the estate.

The Court of Appeal considered this issue in Patrick Munene Migwi v Simon Nyamu Migwi [2017] eKLR, emphasizing the importance of accounting for property previously given to beneficiaries. The facts of this case were fairly straightforward.

The deceased died on 1st August 2005 leaving behind two children, the Respondent and Margaret Wanjiku Migwi (Margaret).

Unfortunately, Margaret died on 29th January, 2012 leaving behind two children surviving her, the appellant and his sister, Purity Wawira Wanjiku. It was also not in dispute that the deceased gave the Respondent 3 acres of land as a gift inter vivos during his lifetime. It was further not disputed that the Respondent sold the 3 acres to one Peterson Kinyua as the Respondent conceded as much. The deceased had 6 acres of land and having already gifted the Respondent 3 acres, the Court held that Margaret was entitled to the remaining 3 acres.

The practical significance is straightforward: two beneficiaries may not necessarily be entitled to identical portions of the remaining estate if one has already received a substantial benefit from the deceased.

3. Grandchildren and the Principle of Representation (Section 41)

The fact that a person is a grandchild of the deceased does not, by itself, determine whether they inherit directly from the estate.

Section 41 provides for the principle of representation. Where a child of the deceased has died before the deceased, that child’s children may step into their parent’s place and take the share their parent would have received. For example, if John (deceased) had three children (Peter, James and Paul), but one child (Peter) died before John, leaving children of his own, those grandchildren may inherit the share that would have gone to Peter.

The High Court reaffirmed this principle in In re Estate of Habel Karobia Thumi (Deceased) [2025] eKLR.

Practical takeaway: When preparing a succession application, it is important to look beyond the surviving children and establish whether any deceased child left descendants.

4. Intermeddling (Section 45)

Family disputes sometimes begin immediately after death, particularly where one person takes control of the deceased’s property. This is what is referred to as intermeddling.

Section 45 prohibits intermeddling with the free property of a deceased person without lawful authority. Intermeddling is not limited to selling land. It may include unlawfully taking possession of, disposing of, collecting or otherwise dealing with estate property.

In In re Estate of Augustine Muita Kahare (Deceased) [2019] eKLR, the court considered the handling of estate money without authority in the context of Section 45. In this case, an objector had received the sum of Kshs. 2,975,000/= on behalf of the estate of the deceased from the sale of a piece of land. She is said to have received the money on behalf of her children who were entitled to the estate of the deceased. Although she was not the one who disposed of the property, the fact that she had received the money meant that she was an intermeddler who ought to account to the legitimate personal representative of the deceased.

The provision is important because it protects an estate during the period between death and proper administration. It is an important reminder that a family member does not acquire the right to deal with estate property simply because they are a spouse, child or other relative of the deceased.

5. A Grant Does Not Make an Administrator the Owner (Sections 79, 82 and 83)

Another common misconception is that once someone obtains a grant of representation, the estate property effectively becomes theirs. That is not the position. The fact that the property may be registered in the name of the administrators does not make it their property.

Section 79 vests the deceased’s property in the personal representative, but the administrator holds and manages that property for purposes of administering the estate and for the benefit of those entitled to it.

The administrator’s powers are set out under Section 82, while Section 83 imposes important duties, including collecting the assets of the estate, paying debts and expenses, accounting for the estate and completing the administration.

In In Re Estate of Christom Kinyua Wainaina (Deceased) [2014] eKLR, the High Court emphasised the fiduciary nature of the administrator’s position and held as follows;

“Be that as it may, Section 79 of the Law of Succession Act vests the property of the deceased in the personal representatives, that is to say the executors named in the will of the deceased or the administrators of the estate appointed by the court. It is the personal representatives who should hold legal title to the property. They can sue or be sued over the said property, and can enter into and enforce contracts over the property on behalf of the estate. They therefore exercise the powers of the owner over the estate, and are subject to the same duties over the property as the deceased would have been subject to.”

6. Confirmation of Grant is More Than a Formality (Section 71)

Confirmation of a grant is sometimes treated as the final administrative step in a succession matter. However, it is much more important than that.

Under Section 71, the court must satisfy itself as to the persons beneficially entitled to the estate and their respective shares before confirming the grant. This means that the confirmation stage is an opportunity to identify omissions, resolve questions concerning beneficiaries and ensure that the proposed distribution is lawful. It is mandatory that all relevant parties must be present.

In Gerald Ambosa Liona & 4 Others v Ernest Shipoche Liona [2020] eKLR, the High Court emphasised the importance of the confirmation process in succession proceedings. It held as follows:

“20. Confirmation of grant is the most critical stage in the life of a succession cause. It sets in motion the process of the distribution of the estate, which is the reason the succession cause is filed in the first place. After confirmation, the cause comes to a close. Since distribution is the reason for the filing of the succession cause, it is important that the same be handled with care, for whenever the confirmation proceedings are bungled the parties do not get closure.”

Therefore, a confirmation application should be prepared carefully. It should reflect the actual family structure, all relevant beneficiaries and the proposed distribution of the estate.

7. Revocation of Grant Has Several Grounds (Section 76)

When people hear about revocation of a grant, they often immediately think of fraud. Fraud is certainly one ground, but it is not the only one.

Section 76 also allows a grant to be revoked where, among other things:

• the proceedings were defective;

• material information was concealed;

• an administrator fails to diligently administer the estate;

• required accounts or inventories are not produced; or

• the grant has become useless or inoperative

A beneficiary who is concerned about the conduct of an administrator should consider the specific grounds under Section 76 rather than simply alleging that the grant was “irregular.”

8. Limited Grants (Section 54)

Not every succession problem requires waiting for a full grant. Section 54 allows the court to issue limited grants for particular purposes. For example, a grant ad colligenda bona may be appropriate where estate property requires urgent collection or preservation, while a grant ad litem may be used where representation of an estate is required in legal proceedings.

These limited grants are particularly useful where immediate action is required, but the circumstances do not yet justify, or permit, the issuance of a full grant.

Conclusion

Succession practice is not simply about obtaining a grant and dividing property. The Law of Succession Act provides a range of safeguards and remedies designed to protect estates and the people who are entitled to benefit from them.

In summary, and before filing or responding to a succession application, it is useful to ask:

• Are all dependants accounted for? Sections 26-29.

• Did any beneficiary receive property during the deceased’s lifetime? Section 42.

• Did any child of the deceased predecease them? Section 41.

• Is anyone dealing with estate property without authority? Section 45.

• Has the administrator properly performed their duties as required by law? Sections 82-83.

• Have all beneficiaries and their shares been identified? Section 71.

• Are there grounds for revoking an existing grant? Section 76.

• Does the estate require urgent action through a limited grant? Section 54.

Need Assistance With a Succession Matter?

Succession disputes can become complicated quickly, especially where there are competing beneficiaries, disputed assets, questions of dependency, or concerns about the conduct of an administrator.

At ESK Advocates LLP, we advise and represent clients on a wide range of succession matters. If you are dealing with a succession matter and are unsure of your rights or the appropriate legal steps to take, our team can help you understand your position and guide you through the process. Contact us for professional legal advice and representation on succession matters.

Article By:

Charles Chahilu

Associate Advocate

Disclaimer:

This publication is for informational purposes only and does not constitute legal advice. For tailored legal support, kindly consult our team.

CONTACT US

0714 548 682 | 0712 629 335

Occidental Plaza, Westlands

THE ESK LEGAL BRIEF

SPOTCHECK ON THE CHILDREN ACT, 2022: OVERLOOKED PROVISIONS, UNDERUTILISED MECHANISMS AND EMERGING PRACTICE IN KENYA

Introduction

The Children Act, 2022 (Act No. 29 of 2022) was enacted principally to give effect to Article 53 of the Constitution marking an important milestone in the development of Kenya’s child-rights and child-protection framework, while consolidating and modernizing the law relating to children’s rights, parental responsibility, alternative care, care and protection, and children in conflict with the law.

The Act elevates the best interests of the child to a paramount consideration by strengthening procedural safeguards for children in conflict with the law, protects children’s privacy and establishes institutional structures intended to coordinate child-protection services. Further, the act addresses the child’s rights to survival and development, name and nationality, parental care, healthcare, education, privacy and protection from abuse and harmful practices.

Four years after commencement, the emerging jurisprudence suggests a mixed picture. Some provisions have been judicially developed and are increasingly influential while others remain underutilized. Some have been overtaken by developing regulations and institutional practice while others still contain genuine statutory gaps which courts have been unable to resolve comprehensively without legislative intervention.

The implementation of the Children Act is evolving backed by other Acts enacted to protect the Children’s rights such as the Children (Foster Care) (Practice and Procedure) Rules, 2024 and the Children (Guardianship) (Practice and Procedure) Rules, 2024. At the same time, the Government has been promoting more regulations dealing with adoption, foster care, welfare programmes, care and protection, charitable children’s institutions and the National Council for Children’s Services.

However, despite the Act being enacted, its implementation remains uneven, transitional and incomplete, particularly in areas where statutory rights depend upon coordinated administrative action. This article seeks to focus on areas where the distance between the statutory text and everyday practice remains particularly significant.

i. Evolving Cardinal Principle of Best Interests of the Child

Section 8 of the Children Act requires that, in all actions concerning children undertaken by courts, administrative authorities, social welfare institutions and legislative bodies, the best interests of the child shall be the primary consideration. Further, this provision requires judicial and administrative institutions exercising statutory powers to treat the child’s interests as the first and paramount consideration, subject to the objectives specified in the Act and that a child be given an opportunity to express an opinion in appropriate cases, having regard to age and maturity.

The First Schedule is more practical as it moves the principle beyond abstraction by identifying considerations such as the child’s age, maturity, development, background, special needs, relationships, and other circumstances relevant to the child’s welfare. This has an important practical consequence as a substantive decision-making obligation. A decision-maker dealing with a child should not merely state that the decision is “in the best interests of the child”; rather the decision should demonstrate how the best-interests assessment was undertaken.

In the case of PM (as father and next friend to TK a minor) & another v Republic through the DPP [2025] KEHC 17675 (KLR) the High Court of Kenya in its decision emphasized that “Section 8 imposes a mandatory obligation on persons exercising executive and judicial authority to promote the welfare of children and that the best interests analysis is not limited to the child accused; where several children are involved, the interests of all affected children must be considered.”

The unresolved issue is how consistently Section 8 is applied outside the courtroom, i.e in school disciplinary decisions, medical and reproductive-health decisions, child-protection interventions, police investigations, adoption and guardianship proceedings, child labour interventions and decisions concerning children with disabilities. Rarely are children’s opinion and best interest prioritized in decision making.

Section 8 should be treated as a decision-making tool, not merely a statutory slogan in all areas involving the best interest of a child. This can be implemented as follows:

• Identifying competing interests;

• Explaining the child’s circumstances;

• Addressing the child’s views where appropriate;

• Identifying the statutory factors and demonstrate why the proposed order advances the child’s welfare; and

• Making the child aware of the issues and decisions.

ii. Privacy and Confidentiality: Section 220 and the Digital Courtroom

The protection of a child’s identity is one of the areas where recent jurisprudence provides a particularly powerful warning to practitioners and institutions and the child’s entitlement to privacy and confidentiality is enshrined under Sections 27 and 220.

Section 27 protects children from unlawful interference with privacy and requires personal data concerning a child to be processed in accordance with the Data Protection Act, 2019.

Section 220 provides that a child offender has a right to privacy during arrest, investigation and at every other stage of the proceedings. This section prohibits the release of information for publication which may lead to identification of the child. Contravention constitutes an offence punishable by a fine of up to Ksh. 500,000/=, imprisonment for up to twelve months or both.

In the case of Law Society of Kenya (Suing as Next Friend of and on behalf of DMM & BNM) v Chief Registrar of the Judiciary & 4 others [2026] KEHC 861 (KLR), it was found that children’s names appeared in charge sheets, court registers, cause lists and the Judiciary’s electronic systems. The High Court held that the disclosure violated the children’s constitutional and statutory rights to privacy and dignity and stated that “the use of initials rather than full names was required in the circumstances and issued orders requiring offending names to be expunged and substituted with initials. It also directed the National Police Service Commission to implement children’s-rights training concerning the handling of matters involving minors and prohibited disclosure of a minor’s identity in legal proceedings unless sanctioned by the court.”

iii. Reproductive Health and Children’s Access to Information

Section 16 provides that every child has a right to healthcare and expressly includes access to age-appropriate information concerning health promotion, mental health and reproductive health. It also recognizes confidentiality concerning health status, subject to the child’s best interests. The Act further provides for information affirming human dignity in human relationships and promoting sexual-risk avoidance.

However, we note that the Act does not provide for mechanisms for implementation and access of this rights, it fails to spell out what constitutes age-appropriate information, who is responsible for providing it, the role of health facilities, parental consent, confidentiality, children with disabilities and more importantly the consistency between legislation, education policy and health policy.

Section 16 also expressly provides that reproductive health services to children are subject to the express consent of a parent or guardian. This provision therefore requires practitioners to draw a careful distinction between the information, healthcare, confidentiality and consent.

iv. Alternative Care, Foster Care and Adoption

The Children Act, 2022 expressly prioritises family-based care and establishes frameworks for alternative care, foster care, kinship adoption, guardianship and adoption. The Children (Foster Care) (Practice and Procedure) Rules, 2024 further provide a procedural framework for foster-care applications, extensions and termination, with the best interests of the child guiding implementation and home-based foster care being prioritised in the first instance.

Recent practice also demonstrates the child-centred approach contemplated by the Act. In Re SN (Baby) [2025] KEHC 123 (KLR), the High Court, in a kinship adoption proceeding, considered the applicants’ suitability, the requisite consents and the

child’s own consent before determining that the adoption was in the child’s best interests.

Sections 11 and 12 reinforce the right to parental care and the obligation to provide appropriate alternative care where separation from parents is necessary. Yet, a pressing question remains: are these statutory protections translating into meaningful family-based care for children who are abandoned, separated from their parents or living on the streets? The increasing number of children falling into the care of charitable institutions and societies suggests a potential disconnect between the Act’s vision and its implementation.

Failure to comply with the rules can have adverse consequences and depending on the circumstances, the court may strike out the suit, require the appointment of the proper representative or allow an amendment where the defect is minimal or curable.

v. Child Protection Units and Institutional Accountability

The Children Act establishes child protection units as facilities intended to provide a safe and non-threatening environment for children. The statutory framework also assigns responsibilities to police, children’s officers, county governments and other institutions. Section 223 requires that detention-pending trial be replaced, where reasonably practicable, by alternative measures and that detention conditions take account of the child’s age, gender, offence, health and special needs.

How ESK Advocates LLP Can Help

At ESK Advocates LLP, we provide comprehensive legal advice and representation in children matters ensuring the child’s best interest is preserved and protected. Our services include child custody and maintenance matters, adoption matters and defending and watching brief in cases where the child is in conflict with the law. We also assist clients in making the right decision on the cause of action to take in the event child rights are violated. By identifying potential legal and procedural issues at an early stage, we help our clients protect their child’s interests, explore the legal structures and make informed decisions in relation to their child’s rights.

Article By:

Anastacia Njambi

Legal Assistant

Disclaimer:

This publication is for informational purposes only and does not constitute legal advice. For tailored legal support, kindly consult our team.

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