• Limited access to retirement benefits by members of defined contribution schemes who have not attained the retirement age, to only 100% of their member contributions, with the employers’ contributions being inaccessible and locked in until the member attains the retirement age;

• Reduction of the transfer period of Schemes that invest in Guaranteed Schemes from three years to one year; and Allowing members of Umbrella Schemes to make additional voluntary contributions towards funding a post-retirement medical fund.

These changes are mainly aimed to enhance the welfare of retirees and promote the growth of pension schemes.

The segment on Bills highlights the Constitutional (Amendment) Bill 2019 which has been dubbed as the “Punguza Mizigo” Bill as it mainly seeks to address the issue of over-representation in Parliament as well as other matters, including the term of the presidency. The section also discusses the Gaming Bill, the Data Protection Bill, the draft Huduma Number Bill, the Finance Bill and the Land (Amendment) Bill as well as their impact.

From the courts, we focus on developing of jurisprudence on criminal matters, data protection, taxation of Advocates’ Bill of Costs, succession, among others. We also highlight the impact of these cases on the citizens, both individual and corporate.

These are only a few of the numerous legislative as well as jurisprudential decisions from the courts which offer guidance on various areas of our laws and it is our hope that you find the Digest informative. We would appreciate your feedback on this issue and previous issues of the Digest, as we continue to strive to share local and global legal developments with you.

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Participants take a photo outside the Freida Brown Student Centre during the annual legal awareness workshop

By Division of Legal Services & Company Secretary

The Legal Services Division held its annual Legal Awareness Workshop on 8-9 May under the theme ICT and the Law: Ethics, Rights & Limitations.

The workshop has become a lasting tradition since the division held the inaugural workshop in May of 2017. Attendees included faculty, staff, students and guests from other institutions of higher education. This year’s workshop attracted participants from as far as Eldoret. In her welcome address, the Director-Legal Services, Ms. Helen Ambasa highlighted the division’s mandate and the topics covered in previous workshops. She noted that the division curated the workshop program with all demographics in mind and with a deep awareness of the responsibilities and freedoms borne by all, both as individuals and corporate citizens. The Vice Chancellor, Prof. Zeleza, echoed those sentiments in his opening remarks where he reiterated the special significance of the legal workshop by underscoring the importance of utilizing human capital for development in this information age.

Participants had the honor of hearing from a panel of experts over the two day period. Topics of focus included: Constitutional rights & limitations in the cyber space; An employer’s role in training employees on online conduct; Activism on the cyber space (social media); Intellectual property rights in the cyber space; Internet jurisprudence and sexual harassment - the legality of reporting cases online; An employer’s perspective on employees’ use of social media; data protection; and digital marketing – How to use it to combat negative public perception.

The facilitators, drawn from various professions, concentrated on responsible online conduct. The first day’s speakers included: Mrs. Sharon Chahale-Wata, the Assistant Director Legal & Technical Services at Kenya Copyright Board, who took participants through the various intellectual property rights that accrue in the cyberspace and distinguishing between industrial property & copyright. She emphasized that copyright protects expression of ideas and not ideas themselves and that copyright owners, particularly on the internet, must take a proactive role in protecting their rights. Mr. Fred Waithaka, the Head of Legal & Secretarial Services at Safaricom Limited, guided the attendees on the employer’s role in training employees on how to conduct themselves online. He highlighted the benefits and risks of internet and social media use, and underscored the fact that an employee should align their online conduct with the company’s culture.

Mr. Steve Ogolla, an Advocate of the High Court of Kenya & Managing Partner at Steve Ogolla Advocates, led a session on the constitutional rights and limitations on the internet. He laid emphasis on the importance of exercising restraint and applying common sense to balance between the right of freedom of expression and other people’s rights to bodily integrity, dignity, and security. Participants were also taken through leveraging digital marketing to mitigate and manage negative public perception. This session was facilitated by the Senior Manager- PR & Communications at Safaricom Limited, Mr. Chris Karanja. Mr. Karanja cited the Safaricom experience in combating negative public perception on digital platforms and outlined five strategies that are useful in this regard, including driving brand love and owning & shaping brand narrative.

The second day of the workshop was commenced by Technology and Intellectual Property Advocate, Ms. Nzilani Mweu who expounded on activism on social media and the balance between public interest and defamation. Ms. Juliet Maina, the Advocacy & Regulatory Manager at GSMA, thereafter handled data protection particularly in the wake of regulation, emphasizing the need to protect one’s data even in cases such as registration for the Huduma Number, which is a government initiative. In emphasizing the significance of personal data and its protection, Ms. Maina pithed that if data is the new oil then trust has to be the new currency.

Mr. Morris Kimuli, an Advocate of the High Court of Kenya and Managing Partner at M. M. Kimuli & Co. Advocates, discussed internet jurisprudence in relation to sexual harassment, highlighting the provisions of the law that define sexual harassment and the penalties prescribed for the offence. The final speaker at the workshop, Mr. John Mwendwa, the Director-Human Resources, Nairobi Bottlers Ltd., spoke about an employer’s perspective on employees’ social media usage and protection afforded to employees who are cyber bullied. Mr. Mwendwa stated that employers have an obligation to protect employees against cyberbullying in the workplace and put in place policies to protect against misuse of social media. He also stressed the importance of organizations having a zero tolerance policy on sexual harassment so as to encourage reporting of cases. This was further reiterated by the Director-Legal Services who urged students to report cases of sexual harassment so perpetrators are identified and appropriate action taken against them.

Attendees who included students, staff and faculty lauded the workshop as informative and well organized, proposing to have the same extended to a duration of one week in the coming years. The Director-Legal Services in her closing remarks thanked participants and facilitators for their audience and assured participants that the division welcomes their feedback and will do all it can to accommodate their requests.

Preamble

The Legal Division continues to discharge its mandate to keep the university informed on topical legal issues. This is done on a quarterly basis through the Legal Digest: the Digest is a brief analysis of the latest developments in the legal and regulatory landscape with emphasis on the impact of the said developments on the University as a corporate entity as well as on its constituents as citizens and/or residents in Kenya. It is worth noting that the Courts have been instrumental in shaping the legal scene by rendering decisions that keep not only Parliament in check but other government agencies as well. This was recently demonstrated in the case of the NGO Coordination Board where the court restated the right of freedom of association of gay and lesbian persons in Kenya. Another apt example is the petition filed by the Kenya Human Rights Commission (KHRC) against the collection of personal information under the NIIMS system which has generated a lot of debate on the right to privacy and data protection. The Judiciary, in this sense, has justly been keen on discharging its role as the implementer of the law.

The Digest is arranged into 3 sections. In the first section, we examine Acts of Parliament. The second section reviews the changes in the regulatory and legislative environment by examining pending Bills while the third section looks at court decisions. In each of the sections, there’s a brief summary of the impact of these developments on the university or its constituents, where applicable.

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From Tuesday May 8 to Wednesday May 9, the Division of Legal Services, successfully organized the second edition of the Legal Awareness Workshop. This followed last year’s auspicious event also held in May. The theme for this year’s workshop was “Empowerment through the Law” and the Division lined up yet another high profile list of guest speakers composed of Prof. Tom Ojienda - a Commissioner at the Judicial Service Commission, Senior Counsel and Advocate of the High Court of Kenya; Ms. Maria Goretti Nyariki - Head of Legal Services and Corporation Secretary at Kenya Bureau of Standards; Ms. Patricia Kiwanuka, a Chartered Financial Analyst, President of the Chartered Financial Analyst Society of East Africa and also a Member of the University Council at USIU-Africa; Mr. Elisha Ongoya, an Advocate of the High Court of Kenya and Senior Lecturer at the Kabarak University Law School; Mr. Alex Gakuru, Executive Director, Content Development and Intellectual Property (CODE-IP) Trust; Mr. Victor Nzomo, an Advocate of the High Court of Kenya, a Patent agent and celebrated blogger on Intellectual Property matters; Ms. MarySheila Onyango - Oduor, Partner and Head of the Family Law Department at TripleOKLaw Advocates and Mr. Samson Atandi, the Senior Insurance Officer at USIU-Africa.
In his brief remarks the Chancellor Dr. Manu Chandaria, underscored the importance of saving and accumulating money as part of financial intelligence.
Participants at the workshop were taken through various issues of topical interest, such as Alternative Dispute Resolution in Kenya, Financial Intelligence Quotient, Constitutional rights and their enforcement in courts, E-Conveyancing, Internet Governance, Intellectual Property Rights, Succession law, Marriage law, Children & the Law, Sexual Harassment in the aftermath of #MeToo campaign, and Insurance.
Key highlights included the ten lessons one needs to learn and practice in order to achieve financial intelligence, inter alia: accumulating money; giving money to the less fortunate; creation of wealth; and making a distinction between good and bad debt. The current changes effected by the Ministry of Lands on the digitization of conveyancing transactions were broken down in detail with key emphasis being placed on the due diligence that parties to any conveyancing transaction ought to undertake. Participants were also informed that The Movable Property Security Rights Act, which was assented into law on May 10 2017, will facilitate the use of movable property such as intellectual property rights, as security for loan facilities.
Participants also got to learn about the different modes of alternative dispute resolution including but not limited to negotiation, mediation, conciliation, adjudication and arbitration. It also emerged that there are only 11 Child Protection Units in Kenya and that USIU-Africa played a major role towards the establishment of the Child Protection Unit at Kasarani Police Station.
While elaborating “Internet Governance”, Mr. Gakuru pointed out that the rapid evolution of the internet needs to be accompanied by development of robust policies and systems that govern their use. Of particular concern was the ethical and legal challenges inherent in emerging technologies such as Artificial Intelligence.With the numerous risks faced by everyone including old age, death, accidents and disabilities, participants were advised to plan their future carefully by including life insurance in their financial decisions. Further, in the wake of natural disasters like floods and bursting of dams, participants were informed that taking out a Fire Insurance policy is important as it helps secure your household properties against such risks.
In her closing remarks, Ms Hellen P. Ambasa, the Director-Legal Services & Company Secretary, thanked the facilitators for taking time out to share their skills and expertise, as well as the university fraternity for honoring the invitation to attend the workshop. She also extended a heartfelt appreciation to her team for the work done in ensuring that the event was a success.

The University’s Legal Division organized a highly successful legal awareness workshop under the theme of “Know Your Rights” on May 9-10, to demystify legal issues such as Intellectual Property Rights; Land and Related Transactions; the Bribery Act; Cyber security law; Traffic Laws; and Sexual Harassment as well as enable an understanding of the University’s Intellectual Property Rights Policy by the staff, faculty and students.
The first of its kind at the University, the workshop attracted high profile guest speakers including Mr. Mohammed Nyaoga, Senior Counsel and Lead Counsel in the on-going land tussle; Mr. Sylvance Sange, Managing Director at the Kenya Industrial Property Institute; Ms. Juliet Maina an Advocate of the High Court and an expert in Cyber security Law; Dr. Isaac Rutenberg, Senior Lecturer and Director of the Center for Intellectual Property and Information Technology Law (CIPIT) at Strathmore Law School; Mr. Moses Kurgat, an Advocate of the High Court and previous chairperson of the Industrial Property Tribunal; Mr. Edward Sigei, Acting Executive Director of the Kenya Copyright Board; Mr. Ashitiva B. Mandale and Mr. Daniel S. Sifuma both Advocates of the High Court at Ashitiva & Nyachae Advocates; and Mr. James Okeyo, Head of Litigation at Muthoga Gaturu & Company Advocates.
In his opening remarks, Dr. Manu Chandaria the Chancellor lauded the efforts undertaken in making such workshops accessible noting the competitive nature of modern trends in Higher Education. His sentiments were reiterated by the Vice – Chancellor, Prof. Paul T. Zeleza who not only underpinned the relevance of the workshop towards the needs of the University, noting the significance the university has placed in the protection of its intellectual property.
Key takeaways included the interest and response elicited towards the University’s Intellectual Property Rights Policy, denoting additional institutional requirements for increased awareness on the same and its provisions.

Emerging aspects of cyber security, which is taught in the School of Science and Technology, emphasized the need for every member of the community to take adequate measures to protect their online security. There also a noted need to create awareness on the existence of the National Computer Incident Response Team (KE-CIRT/CC, - a body tasked with providing information and assistance to its constituents, in implementing proactive measures to reduce the risks of computer security incidents, as well as responding to such incidents when they occur.
Spousal consent in transactions concerning matrimonial property emerged as an area of interest in a lively session presided by Mr. Ashitiva. As a highly-reputable private institution of higher learning, provisions under the Bribery Act featured in a discussion led by Mr. Nyaoga, which were especially cited as essential for maintaining the reputation and integrity the university.

In her closing remarks, the Director – Legal Services & Company Secretary Ms. Helen P. Ambasa thanked the members of faculty, staff and students for their attendance, adding that that she was particularly gratified by their interest. She also acknowledged the work done by her team of lawyers; Yvonne Mwendi (Legal Counsel), Joyflo Wanjiru and Yuvenalis Nyachio (Pupils), in making the event a success, promising to hold such workshops in future.

Preamble

This edition of the quarterly Legal Digest highlights significant legislative changes in the finance and healthcare sectors, as discussed in the Acts of Parliament section. Some of the notable acts discussed include the Finance Act 2023, which brings about various adjustments to Kenya’s tax regime, the Public Finance Management Act, which introduces a new borrowing threshold, and the Privatisation Act 2023, which amends the regulatory framework for public entity privatisation, among others. Additionally, the Section features the four Health Acts which were recently assented to and whose aim is the promotion of Universal Health Coverage.

The section on Bills features among others, the education sector, the environmental sector, and the employment sector. Some of the highlighted bills include the Kenya Sign Language Bill 2023 which seeks to advance the use of the Kenyan Sign Language in various settings including schools, workplaces, and court rooms, the Higher Education Loans Board (Amendment) Bill 2023 which seeks to introduce some changes to the Principal Act, the Insolvency (Amendment) Bill 2023 which aims to introduced a fast-tracked administration process for Insolvency cases, the Environment and Land Act (Amendment) Bill 2023 which seeks to enhance the effectiveness of the Environment and Land Court, and the Public Holidays (Amendment) Bill 2023.

The courts segment analyses evolving jurisprudence relating to data protection, land title matters, non-discrimination of sexual minorities, employment matters, and matrimonial affairs. These analyses span across both national and international perspectives. Lastly, the Fun Fact section highlights intriguing and noteworthy facts.

The aspects highlighted in this issue represent just a fraction of the legislative changes, developments, and legal insights which speak to and offer guidance on various areas of the law. It is our hope that you find this issue of the Digest informative and beneficial.

We would appreciate your feedback on this issue and previous issues of the Digest, as we continue our mission to disseminate local and global legal developments.
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Preamble

In this last issue of the year, we highlight recently enacted laws including the Data Protection Act 2019; the Finance Act 2019; the Copyright (Amendment) Act 2019; the Division of Revenue Act 2019; and the Small Claims Court Act Rules 2019. It will be noted that some of these laws like the Data Protection Act and the Copyright (Amendment) Act had been pending as Bills in Parliament for a while, and it is a welcome move for them to finally be enacted.

With the enactment of the EU General Data Protection Regulation 2016/679 there has been a focus on data protection and enhancement of data protection laws. This trend has also been felt locally, especially with the introduction of the Huduma Number. There is more debate on the safety of personal data and Kenyans are now more aware of their rights as data subjects. The Data Protection Act is therefore a big step in the right direction and it is hoped that the government will exercise goodwill in implementation of the provisions of the Act. There is need for sensitization of the public on the provisions of the Act so that more people are informed of their rights as well as obligations when it comes to protection of personal data. The liability of Internet Service Providers (ISPs) and the procedure for taking down infringing content online is also set to enhance protection of copyright material online which was long overdue.

From the courts, we have featured legal precedents focusing on employment matters and constitutional petitions. The High Court gave a landmark ruling in the case of J W M (alias P) v Board of Management O High School & 2 others [2019] eKLR where the court held that the refusal to admit a student who was of the Rastafarian faith due to her dreadlocks was an infringement on their freedom of religion.

Internationally, the Supreme Court of the United Kingdom also made a ground-breaking ruling on 24 September 2019, in a unanimous decision by eleven justices, where they found that the advice given by UK Prime Minister Boris Johnson to Her Majesty the Queen to prorogue the UK Parliament was both unlawful and void.

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