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The Draft Data Protection (General) Regulations, 2021 (“the Draft Regulations”) were recently published for public consultation by the Communications Authority of Kenya. They elaborate the rights and duties of the data subjects, data controllers and data processors, and also provide the procedures for enforcement of the said rights and duties.
Data protection law originated from Europe in the 1970s as a reaction to the rise of the use of computers. This eventually led to the development and adoption of the now-famous General Data Protection Regulation (GDPR) in 2016 which became enforceable in 2018. The GDPR is a legal framework that sets guidelines for the protection of the personal information of European Union citizens. The GDPR has since then become a reference point for other data protection laws globally.
On nearly a daily basis, you often are required to provide information about yourself that is personal. You walk into an office of a service provider, or download a form from their website which you then fill and submit so that can you receive certain services. You give this information without really knowing whether that information will be used for purposes other than those you gave it for or who else will see or receive it.
Data protection can be defined as the mechanism of safeguarding personal data and entails protections granted with respect to collection, processing, dissemination and use of the data.
Data protection laws seek to protect people’s data by providing individuals with rights over their data, imposing rules on the way in which companies and governments use data, and establishing regulators to enforce the laws.
The Constitution of Kenya, 2010 grants every Kenyan the right to own property in any part of Kenya. Article 40(6), however, places a caveat on the enjoyment of the right to own property. It provides that such right shall not be enjoyed in respect to property which has been unlawfully acquired. This position was reinforced by the Supreme Court in its recent decision in Dina Management Limited v County Government of Mombasa & 5 Others (Petition No. 8 (E010) of 2021. In this landmark decision, the Supreme Court deconstructed the doctrine of indefeasibility of title and enlarged the buyer’s role in the due diligence process.
The Business Laws (Amendment) Act 2020 (the “Act”) was assented to by the President on March 18,
2020. The Act has amended several laws with the aim of facilitating the ease of doing business in the
country. The World Bank, through annual surveys that investigate the laws and regulations that either
enhance or constrain business activity in various counties, ranks nearly 190 worldwide. The report
usually covers several areas which include starting a business, registering property, enforcing
contracts, among others.
The Central Bank of Kenya has issued a regulatory approval to Fingo Africa, the first ever digital-
only bank, to roll out its services in Kenya. Fingo Africa (“Fingo”) is a Neobank that has partnered
with Ecobank. Both institutions are planning a Pan-African roll out which shall commence in
Kenya. According to Fingo, it has raised seed capital of Kenya Shillings 1 billion (which under
Kenyan Law is the minimum capital required to establish a bank) and its services are to be
accessed through the ‘Fingo Africa App’, now available on Google Play Store and Apple Store.
The services include account opening, withdrawals, deposits, savings, checking of bank balances,
request for bank statements, monitoring of financial statements and general financial education.
Fingo has no monthly charges, overdraft fees, credit checks or minimum balance required. It also
has a guaranteed access period of five minutes.
A Free Trade Agreement (FTA) is an agreement between two or more countries (“partner
countries”) to facilitate trade and eliminate trade barriers. It typically removes or significantly
reduces impediments to the flow of goods and services between the partner countries. For this
purpose, modern FTAs go beyond the mere reduction of tariffs for traded goods, and address
various regulatory principles. Generally, FTAs help create an open and competitive
international marketplace.
By an amendment introduced to the Income Tax Act by the Finance Act of 2014 Capital Gains Tax (CGT)
was re-introduced in Kenya. The tax, which had been suspended in 1985, is chargeable on the whole of the
gain or profit made on the transfer of property situated in Kenya – it’s the gain made that’s taxed, not the
entire transfer value. The burden of declaring and paying the tax liability is on the beneficiary of the gain
who, in the case of a transfer of property, is the transferor.
Administration of CGT is currently governed by the Income Tax Act and the Tax Procedures Act.
Conflict is what happens when boardroom dialogue fails. The resultant effect of any conflict can
have far-reaching effects on a company. What happens where a member is disgruntled by the
decisions of some of the members of the company and yet the wrongs cannot be resolved by
internal mechanisms due to majority rule? What should a minority shareholder do in such
circumstances? The principal law governing protection of minority shareholders from controlling
shareholders is the Companies Act, No. 17 of 2015 (together with attendant regulations) and
complemented with common law principles.
