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Validation of Nairobi Block 110 Title Deeds: Final chance for affected plot owners to verify their ownership details – The Ministry of Lands and Physical Planning (the “Ministry”) recently suspended land transactions involving Nairobi Block 110 title deeds following several complaints of fraudulent land transactions. The

purpose of this suspension is to enable the Ministry review and verify the ownership details of all the properties registered under the Nairobi Block 110 register. In this regard, the Ministry will conduct an exercise to validate the ownership details of all affected plot owners from 24th May 2021 to 4th June 2021 at the Survey of Kenya offices in Ruaraka. Affected plot owners are required to present the following documents for review: (i) certified copies of title deeds, grants, transfers and sale agreements, (ii) certified copies of share certificates and payment receipts issued by Thome farmers, and (iii) certified copies of identification documents including National ID, KRA PIN Certificates for individuals and certified copies of Certificate of Registration, CR12 and KRA PIN Certificate for companies/institutions. These documents should be submitted in sealed envelopes.

The Finance Act, 2022 (“the Act”), published on 23rd June, 2022 introduced various changes to several statutes, amongst them, the Income Tax Act, Chapter 470 Laws of Kenya. Section 15 of the Act has amended Section 34(1)(j) of the Income Tax Act by increasing the tax on Capital Gains from 5% to 15%. Consequently, the sellers of land will now be required to remit 15% of the gains from such sale of land as Capital Gains Tax. While this increase could be a move to align the national tax rate to the regional CGT rates, and increase revenue collection in the local property sector, it is noted that this increase could slow down real estate transactions involving the sale of land. This CGT increase will take effect from 1st January, 2023, as provided in Section 1 of the Act.

Derivative Action is a form of protection afforded by the existing legal regime to minority shareholders in a Company. The Companies Act, 2015 allows a member of a company to institute a legal action and/or seek remedy on its behalf. This remedy is available to minority shareholders who desire to challenge harsh conduct, if any, by the majority shareholders and is aimed at enhancing accountability. In the past, a Derivative Action could only be brought under certain instances and exceptions e.g. where the company had acted ultra vires, in instances of fraud by the majority shareholders etc. This was the case because only the Company, being a separate legal entity from its members, could institute claims for any wrongs it had suffered. Currently however, derivative claims may be instituted in instances of acts or omissions that involve negligence, default, breach of duty or breach of trust by a director or any other member of the company.

On 31st March 2022, the Office of the Data Protection Commissioner (ODPC) issued a press notice notifying the public that the Regulations on the Registration of Data Controllers and Processors will come into effect from 14th July 2022. The Regulations inter alia, set out the requirements and procedures for registration as a data controller, data processor or both. Following this announcement, data controllers and processors will now be required to register as such with the ODPC on/around 14th July, 2022.

On 4th May 2022, the Capital Markets Authority (“CMA”) published the Draft Capital Markets (Public Offers & Listing of Securities) Regulations, 2022 (“draft Regulations”) inviting the general public and stakeholders for comments pursuant to section 12A (3) of the Capital Markets Act. The draft Regulations seek to repeal the existing Capital Markets (Securities) (Public Offers, Listing and Disclosures) Regulations 2002 (“existing Regulations”) which are deemed as being overly prescriptive, outdated and onerous thus hindering the growth of the capital markets in Kenya. The draft Regulations seek to address the pertinent shortcomings in the existing Regulations in a bid to encourage more listing of securities while also ensuring the protection of investors.

The Sectional Properties Act 2020 (“the current SPA”) was passed to address the challenges under the former Act and to align the law on sectional properties to the current land laws and the Constitution of Kenya. The salient features of the current SPA include: the requirement that owners of sectional units be responsible for any rates, rent or taxes; the establishment of the Corporation (body responsible for managing the common areas) and the responsibility of the Lands Registrar in its establishment; the duties and powers of the Corporation and the review of existing long-term leases to ensure that they are properly georeferenced and that the geo-referencing has been approved by the Survey of Kenya. The current SPA is intended to ease the registration and the management of the sectional properties and consequently encourage investment in sectional properties in Kenya. However, it is yet to be observed whether the new provisions will remedy the delays in the registration of units under the sectional properties regime. Further, the requirement that all long-term leases should be reviewed is expected to inconvenience many owners and developers who are required to have completed the review process by 28th December 2022.

On 21st March 2022, Central Bank of Kenya (CBK) issued a press notice notifying the public that the Central Bank of Kenya (Digital Credit Providers) Regulations, 2022 (the Regulations) are now operational. The Regulations were published via Legal Notice Number 46 of March 2022. The Regulations seek to address concerns raised by the public given the recent significant growth of digital lending particularly through mobile phones. Pursuant to the Regulations, all Digital Credit Providers (DCPs) are now required to be licensed by CBK. Notably, the Regulations expressly prohibit a DCP from using threats, obscene or profane language, accessing customer’s phone book or contacts list, making unauthorized or unsolicited calls or message to the customer’s phone contacts and other contacts, et cetera, in the course of debt collection. All existing DCPs are required to apply to CBK for a license by 17th September 2022 or cease operations.

The office of the Attorney General published Guidelines to assist public and private entities in the Preparation of Procedures for the Prevention of Bribery and Corruption (“the Guidelines”). The Guidelines were published following the enactment of the Bribery Act, 2016 (“the Act”), and should be read together with the Act.

The Act widened the scope of the fight against bribery and corruption by extending the fight to the private sector. Prior to the enactment of the Act in 2016, the law against corruption only targeted the public entities and state organs thus detaching itself from the realities of the expanded private sector. The Anti-Corruption and Economic Crimes Act, 2003, defines corruption as any act of bribery, fraud, embezzlement or misappropriation of public funds, abuse of office, breach of Trust, and an offence involving dishonesty in connection with any tax, rate or levy imposed by any written Act or law.

The Tax Appeals Tribunal (Amendment) Bill, 2021 (“the Bill”) proposes to make several changes to the Tax Appeals Tribunal Act (“the Act”). First, it introduces a timeline of 7 days from the date the decree or order was made by the Tribunal, within which an appellant can lodge an application for review. To qualify to lodge such an application, an appellant should not have not lodged an appeal for such decision or order at the High Court. It also specifies grounds for making such applications for review, which include discovery of new and important evidence, existence of an error apparent on the face of the record and/ or any other sufficient reason. This proposed change is an attempt to address the gaps that exist in the current law which neither establishes the timelines for lodging an application for review nor clarifies the instances in which such application may be lodged. The Bill also proposes digitization of the Tribunal’s processes by permitting electronic service and communication. Further, the Bill proposes to introduce a requirement for the chairperson and the members of the Tribunal to serve on a full- time basis, and to bar ex- KRA employees from being appointed as members of the Tribunal.

The Voluntary Tax Disclosure Program (VTDP) was introduced by the Finance Act, 2020, as part of the changes made to the Tax Procedures Act (TPA). The VTDP is a program which allows taxpayers to voluntarily disclose any tax liabilities, which were previously undisclosed to the Commissioner of Domestic Taxes, for the purposes of tax compliance where relief will be granted on penalties and interest on the tax disclosed. The aim of the VTDP is to encourage voluntary disclosure of undeclared taxes and payment of principal taxes by avoiding the imposition of punitive penalties and interest. This will (i) enhance tax compliance, (ii) improve revenue collection and (iii) bring more taxpayers under the tax net. Under the VTDP, the taxpayer is required to review total tax compliance and apply for amnesty on all areas of non-compliance.