The introduction of the 'Marriage Bill 2013' is an attempt to consolidate the various marriage regimes In Kenya. The current regimes which include Customary, Christian, Civil, Hindu and Islamic marriages are set to be codified. The Bill makes provisions that regulate various aspects within a marital union. For Instance, although polygamy has been given legal recognition, there are conditions attached to it. In a potentially polygamous marriage, spousal consent will be required before marrying another wife. However, Polyandry as well as same-sex marriages have not been given legal recognition under the Bill. Spouses under customary marriages may apply and obtain certificate for registration of the same unlike before when there was no such provision. The Bill also provides that there will be a rebuttable presumption that properly is held in trust for the other spouse where matrimonial property acquired during marriage is in the name of one spouse, which basically means that even though property may be registered under one of the spouses, the other one also has a right to claim it. This is a safeguard that protects spouses against the loss of matrimonial property. Where such property is jointly held, there shall be rebuttable presumption that their beneficial interests in the matrimonial property are equal. If the parties in a polygamous marriage divorce matrimonially acquired property between the man and the first wife shall be retained by the man and the first wife only. Payment of dowry has also been made optional under the Bill. A spouse who has withdrawn from society may be compelled to provide conjugal rights under the Bill. The aggrieved party may make an application to court for restitution of the same. Breach of a promise to marry may also earn compensation to the aggrieved party upon proof of the same. However this does not mean that every promise will earn a party compensation as stated in section 76(1) of the Marriage Bill. The benefits vis-à-vis the disadvantages of passing the said laws need to be carefully examined so as to ensure that we pass laws that have a beneficial interest that is sustainable. They should seek to uphold the society and not necessarily draw it apart, especially the family unit. Any Bill which has a draconian effect to the population and the nation should not be legislated.
The Parliament has now tabled a Bill (Value Added Tax Bill 2013) which seeks to introduce 16 percent tax on basic commodities as well as essential services. This affects electricity, food, medicine and agricultural inputs. This is a bid to reduce the number of zero-rated items so as to address huge tax refunds owed to businesses by the Kenya Revenue Authority (KRA). The move has received an unwelcomed response from Kenyans together with various groups such as the civil society and the Consumers Federation of Kenya (COFEK). This has been evinced by protests held to lobby the government to desist from legalizing this Bill. Majority of Kenyans hail from poor households and are forced to survive on less than a dollar a day. The argument is that if the Bill is passed, its ramifications will be felt both economically and socially and will expose many Kenyans to harder times. This is basically because the Bill touches on the prices of basic commodities that include maize, milk, bread, flour and sanitary towels. Consequently the prices of these commodities and services are set to increase. By making it harder to access such basic goods and services, the government will be creating a leeway that will see an increase in insecurity incidents, exposure to diseases and an overall collapse of the economy as we will be forced to reduce our food production levels and heavily rely on imported food. The Bill also seeks to strip the President, Kenya Defence Forces or any other service, disabled and physically handicapped persons of their zero-rate status and subject them to taxation. Any bill/law that endeavors to frustrate the spirit of the Constitution should be cast aside. Article 43 of the Constitution provides that every person is entitled to the highest attainable standard of health, adequate food and social security. The state has the responsibility of ensuring that these are made available, rather than giving with one hand (the Constitution) and taking away/ denying with another hand (The VAT Bill).
The UN Committee Against Torture has urged Kenya to enact a 'Prevention of Torture Bill' to render all acts of torture punishable. It has termed it as a matter of urgency for the government to table the bill in Parliament, so as to provide a comprehensive definition of torture in line with Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or punishment. The Article 1(1) of the Convention defines torture to mean "...any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions" The call by the UN Committee has been fuelled by various cases where the Kenya police force has been accused of torture, which has promoted a culture of impunity and abuses by Kenya's law enforcement agencies; that appears to have encouraged a spate of police abuses in Nairobi. In a recently launched report on the plight of refugees in Nairobi's Eastleigh area, cases of abuses cited include murder, rape and assault. This also follows an earlier move by the United Nations Commission on Human Rights (UNCHR) to question Kenya on why the Executive arm of government continues to breach court orders and for failing to prosecute police officers engaged in torture. Thus, the committee recommends that the appropriate penalties of all acts of torture under law be legislated. The "Torture Convention", also known as The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was adopted by the General Assembly of the United Nations on 10th December 1984 .The Convention, which Kenya is among the State parties', entered into force on 26th June 1987. Article 2 of The Convention requires each State party to take effective legislative, administrative, judicial or other measures to prevent acts of torture. Article 4 further reiterates that acts of torture are serious criminal offences within the legal systems of the member states. Article 25(a) of the Constitution provides that freedom from torture and cruel, inhuman or degrading treatment or punishment shall not be limited. More light should be shed into this matter and legislations ought to be added to give flesh to the skeleton frameworks in place in order to counter the culture of impunity and create deterrence to future attempts of torturous treatment.
Article 230 of the new constitution provided for the establishment of a Salary and Remuneration Commission (SRC). The idea was to have a way to check the ballooning public sector wage bill. Of particular interest to the public has been the wages being paid to the Members of Parliament. The Kenyan legislators are among the highest paid in the world and are infamous for regularly increasing their salaries and allowances.
The SRC was subsequently formed through an Act of Parliament, the Salaries and Remuneration Commission Bill, 2011. After extensive research done in the US, UK, Canada, South Africa, Rwanda and Tanzania, the SRC proposed a pay structure that would see the pay of the President, MPs, Attorney General and other civil servants reduced, capped and taxed. This was done in an effort to reduce the wage bill to GDP ratio from its current 12% to the internationally recommended 7%. The Finance Minister Njeru Githae pointed out in February that the Kenyan wage bill was the highest in the continent and that it had risen from 9% in 2011 to the current 12%. He warned of a large unsustainable fiscal deficit if the trend continued. After the report was released, the public was allowed to weigh in their opinions, and many felt that the wage being paid to the MPs and the President was still too high and they would love it if the commission would further reduce it.
Despite all this, the 11th parliament MPs did not wait to be sworn in before agitating for an increase in their pay as the one proposed by the SRC was, according to them, unacceptable. They deemed the SRC actions to be unconstitutional because, according to them, the SRC has no mandate to reduce their salaries. So as the matter continues to play out, it is important you understand the function and powers of the SRC as envisaged by the new constitution.
Functions of the SRC
According to Article 230 of the Constitution, the SRC is mandated to
Set and regularly review the remuneration and benefits of all State officers
Advice the national and county governments on the remuneration and benefits of all other public officers
The Salaries and Remuneration Bill of 2011 further defines the duty of the SRC.
It says that in addition to the powers and functions provided under Article 230 of the constitution, the Commission shall
Inquire into and determine the salaries and remuneration to be paid out of public funds to State officers and other public officers
Keep under review all matters relating to the salaries and remuneration of public officers
Advice the national and county governments on the harmonization, equity and fairness of remuneration for the attraction and retention of requisite skills in the public sector
Conduct comparative surveys on the labour markets and trends in remuneration to determine the monetary worth of the jobs of public offices
Determine the cycle of salaries and remuneration review upon which parliament may allocate adequate funds for implementation
Make recommendations on matters relating to the salary and remuneration of a particular state officer
Make recommendation on the review of pensions payable to holders of public offices
Perform such other functions as provided for by the constitution or any other written law
The Act further states that in addition to all these, the SRC is expected to be guided by the principle of equal remuneration to persons for work of equal value.
The SRC shall have all powers necessary for the execution of its functions given under the Constitution and the SRC Act 2011. These will include
Gathering by any means appropriate, any information it considers relevant. This includes requisition of reports, records, documents and any information from any source including governmental authorities
Interviewing any group, individual or members of an organization or institution and, at the SRC's discretion, conducting such interviews.
Holding inquiries for the purpose of performing its functions under the SRC Act 2011
Taking any measures it deems necessary to ensure that in the harmonization of salaries and remuneration, equity and fairness is achieved in the public sector.
It's important to note that the SRC is protected by the constitution. In Article 249(2), the commissioners are subject only to the constitution and the law. They are independent and are therefore not subject to direction or control by any person or authority. However, according to Article 252(2), a complaint to a commission or the holder of an independent office may be made by any person entitled to institute court proceedings under article 22(1) and (2). This is an enforcement of the Bill of Rights, which protects any person who feels that a right or a basic freedom (as stated by the bill of rights) has been violated, infringed or threatened.
As we near the General Elections, it is important for every citizen and voter to recognize and understand the election offenses to shun and condemn them. Election offences will lead to warning, disqualification, prosecution or imprisonment as provided for by the Law. There are different categories of Election Offences in Kenya. They include:
Offences in relation to registration of voters and voter's cards,
Offences relating to multiple registrations as a voter,
Offences relating to voting,
Offences by members and staff of the commission,
Personation,
Undue influence, bribery, use of force or violence during the election period among other illegal practices.
This article highlights some of the offences that you, as a Kenyan citizen need to be familiar with. The following include some of the offences punishable by law
Double/multiple registration: your name appearing more than once on the voters' register
Having more than one voter's card
Impersonation: the use of another person's voter's card
Selling or buying voter's card. Do not exchange your card for money, food, beer or any other gift, you will be selling your ethics and your democratic right
Deliberately destroying a voter's card
Carrying another person voter's card
Offences relating to voting
Voting more than once
Carrying out campaigns on the polling day
Soliciting or receiving bribes to encourage voting for a candidate
Hate speech targeting the opposing side
Destruction of campaign materials of the opposing candidate.
Use of another person's elector's card and ID to vote
Prevention, obstruction or barring of a person from voting
Use of force or violence during election period A person who, directly or indirectly in person or by any other person on his behalf, inflicts or threatens to inflict injury, damage, harm or loss on or against a person—
so as to induce or compel that person to support a particular candidate or political party;
on account of such person having voted or refrained from voting; or
In order to induce or compel that person to vote in a particular way or refrain from voting, commits an offence and is liable on conviction.
Offences relating to elections
making or publishing any false statement of withdrawal of any other candidate at such election; before or during any election, for the purpose of promoting or procuring the election of any candidate,
forging, defacing or destroying any ballot paper, or delivering to a returning officer any ballot paper knowing it to be forged;
interfering with election material by removing, destroying, concealing or mutilating or assist in the removal, destruction, concealment or mutilation of any such material save on the authority of the Commission
directly or indirectly printing, manufacturing or supplying or procuring the printing, manufacture or supply of any election material in connection with the election save on the authority of the Commission
Entering or remaining in an election centre or in any area designated by the Commission for electoral purposes contravening the law.
Role of citizens It is your duty as a citizen to -
Report election offences as soon as possible to Designated IEBC Security Officer's desk, Designated Peace Committees or the nearest Police Station
Conduct campaigns in a peaceful manner and to always adhere to the laws, rules and regulations guiding elections in Kenya
Participate in peaceful elections by voting on the 4th of March 2013
Chapter Six of the constitution endeavors to uphold and restore the rule of law in Kenya by providing guidelines that govern on leadership and integrity.
With the existing political climate and the much-anticipated general elections, the need to establish scales that will weigh the efficacy and credibility of the future and the incumbent leaders of our nation cannot be evaded. Kenyans needs to have confidence in the constitutional offices. The Constitution dedicates a whole chapter to making provisions that will ensure an effective administration that cuts across all leadership ranks.
Under chapter six of the constitution, article 73 advocates for a leadership that upholds personal integrity, objectivity and impartiality; a leadership that is selfless, promotes public integrity and supports the spirit of the Law. Further to this, Article 75 clearly affirms that whether in public places, official places, in private or in association with other persons, a state officer shall behave in a manner that avoids demeaning the office he or she holds. Article 79 stipulates that Parliament shall enact legislation to establish an independent ethics and anti-corruption commission, which shall be and have the status and powers of a commission under Chapter Fifteen, for purposes of ensuring compliance with, and enforcement of, the provisions of this Chapter.
The Leadership and Integrity bill was and still is supposed to give legislative weight to chapter 6 of the constitution. Article 80 requires the Parliament to enact legislation that will give effect to, and establish procedures and mechanisms for the effective administration of this Chapter. This is for the purpose of promoting ethics, integrity and servant leadership among State officers; providing for the extension of the application of certain provisions of Chapter Six of the Constitution and the Act to public officers.
Under the Constitution (Article 260), a "state officer" means a person holding a state office. A "public office" means an office in the national government, a county government or the public service, if the remuneration and benefits of the office are payable directly from the Consolidated Fund or directly out of money provided by Parliament; "public service" means the collectivity of all individuals, other than State officers, performing a function within a State organ. The word "State" connotes offices, organs and other entities comprising the government of the Republic.
The Leadership and Integrity Bill, sponsored by the Ministry of Justice and Constitutional Affairs contains various provisions that are imperative in shaping the country's leadership. These include the general and specific leadership and integrity code, mechanisms for enforcement of the leadership and integrity code, the requirement for declarations of income, assets and liabilities, disciplinary measures which include penalties for offences, the establishment of the Kenya Leadership and Integrity Forum to promote leadership and integrity principles, transitional provisions and amendments.
In commending the positive spirit behind the drafting of the Bill, several concerns were raised. Once the Bill was tabled in Parliament, major changes were made on the document which would better be referred to as mutilations. The gist of the document was 'watered down' to a rather lenient manual that could be manipulated to allow unscrupulous state officers retain their leadership positions.
It is unfortunate that after the extensive whistle blowing that was carried out concerning the defective Leadership and Integrity Bill 2012, the Legislators gave a cold shoulder to the Bill initially drafted by the Commission for the Implementation of the Constitution (CIC).
Below are the changes that have since been experienced and assented in the new document:
The clause compelling those seeking elective office to declare their wealth before going for election was deleted.
The vetting of all candidates by the Ethics and Anti Corruption Commission EACC before receiving a nomination certificate from the Independent Electoral and Boundaries Commission IEBC has also been done away with. Therefore those seeking elective positions (presidential, parliamentary and county assembly posts) will not be vetted by State agencies.
In passing this Bill, Parliament has overlooked these stringent vetting requirements that would have seen more severe but apt Bill on Leadership and Integrity passed.
It had provisions that required those seeking public office to be cleared by the relevant State agencies. A clearance from the Kenya Revenue Authority, Higher Education Loans Board, and the National Police Service, or any other public entity would have been required.
Even after promulgation of the new Constitution, it is evident that the mechanisms that were intended to bring about accountability and transparency across all institutions are being frustrated.
It is a sad reality that the very legislators expected to steer our nation into realizing the constitutional principles set out in Article 10, are retrogressing the process.
It is however not an irreversible tragedy as the ultimate power rests in the hands of Kenyans through their vote.
A new Traffic Amendment Bill 2012 is being proposed that will bring a raft of major changes to the existing traffic law. This will come as no surprise to Kenyans because there has been a noticeable increase in road carnage reports in the recent past. One of the more radical measures being proposed is the abolishment of the Kenya Traffic Police Department. According to the Bill, which is sponsored by Gem MP Jakoyo Midiwo, all police officers would be required to enforce traffic laws.
The Bill proposes much tougher penalties for offenders while introducing other regulations that it hopes will make it harder for man made errors, usually the cause of many accidents, to occur. The following is a quick overview of some of the major points in the Bill.
➢ The Administrative Unit of the Kenya Police Service known as the Traffic Department would be abolished
➢ Ownership of vehicle registration plates would be given to the Kenya Revenue Authority (KRA).
➢ In the event that the ownership of a vehicle changes, the registration plates are to be surrendered to the registrar of motor vehicles first. Failure to do so would attract a fine not exceeding KES 30 000, and a subsequent KES 10 000 for every month the law is not observed.
➢ Driver's licence holders would have to undergo eye tests every three years. They would need to present a medical practitioner's report in order to renew their licence. People failing to adhere to this requirement would be disqualified from holding a licence for three years.
➢ Driving under the influence would attract a penalty of 10 years in jail or a minimum of KES 500 000 fine, or both.
➢ Overlapping, driving on pavements and pedestrian walkways or using petrol stations to avoid traffic would get you a three month prison term or a fine of KES 30 000, or both.
➢ The licence of a person found guilty of exceeding speed limits would be invalid for not less than 3 years if the limit is exceeded by up to 10 KPH or if the offense is repeated more than three times.
➢ The Inspector General of Police would designate areas where Police will be required to erect roadblocks.
➢ There will be road signs showing the prescribed speed limits.
➢ PSV drivers and conductors would be required to wear badges and uniforms. In addition, the PSV drivers would be required to do a compulsory competence test every two years.
➢ Motorcycles would have to be insured against third party risks and the riders would be compelled to wear helmets and reflector jackets. Penalties for contravening this law would attract a KES 10 000 fine or a one-year jail term.
Meanwhile, the Police spokesman Eric Kiraithe welcomed the proposed changes but wanted an inclusion of all the stakeholders first before it could be enacted. According to Mr Kiraithe, it is important for the public, the judiciary and the police to be involved in order to have a proper and positive change in the traffic laws.
The current Traffic Commandant, Joseph Ole Tito was not comfortable with the idea of disbanding the entire Traffic Police Department. It is Mr Ole Tito's opinion that the police force would lose its grip on the traffic situation on the country if the traffic duties were to be spread to the entire force.
Treaties and agreements between nations in the world were codified into law by the Vienna convention and Kenya being a signatory is bound by it. We seek to look at the various protocols, agreements and treaties that Kenya has signed over the years and their impact on us as a nation but let's first understand treaties and how they come into force in Kenya.
With the promulgation of the new constitution on 27th August 2010, the governance and administration structures of the 47 year old nation changed drastically with new guidelines on how to relate with each other as citizens and with other nations of the world.
Kenya being a member of many international bodies such as United Nations (UN), African Union (AU), COMESA and East African Community (EAC); relates in areas of Trade, Commerce, diplomatic affairs and enters into many treaties and agreements which need to be enforced in Kenya.
The treaties that were signed under the old constitution and their coming into operation are different from treaties that will be signed under the new constitution, we seek to check out why this is so.
Coming into force of treaties under the old constitution
Under the repealed constitution, ratification of treaties required the government to bring a bill in Parliament that was in line with that treaty to enforce its requirements, since treaties had no recognition under the then constitution. This process is known as domestication. The other option was to implement the treaty as a government policy if it did not require any legal backing.
This process of enforcing treaties was both good and bad depending on the treaties that were coming into force. Domestication ensured that the public had an opportunity to scrutinize the law that was coming into force. This helped us to guard ourselves as a nation from commitments taken by few individuals on behalf of all of us on issues we did not agree on.
The bureaucracy of this whole process had its own disadvantages in that important treaties that where important to the citizens took long to be implemented or due to politics some of the bills could not see the light of day. This resulted to Kenya signing many treaties that would be beneficial to Kenya but not implemented such as treaties on health, human rights and education.
Coming into force of treaties under the New Constitution
Among the notable changes that were entrenched under the new constitution was the issue of rules of International Laws and Treaties. The constitution under Article 2 (5)[1] and Article 2 (6)[2] entrenches these international Instruments as part of the laws of Kenya when the country decides to ratify them.
The constitution under Article 2 spells out the various sources of law that will form the laws of Kenya to include;
general rules of international law, Any treaty or convention ratified by Kenya.
This implies that by signing any treaty under the new constitution Kenya binds itself to incorporate the new laws or the treaties that had been previously signed. The president is required by the constitution to ensure this obligation is fulfilled.[3]
The new constitution does not specifically identify the process or persons who will be responsible for signing the treaties on behalf of the country, but by established practice the president being the Head of State is responsible for signing or any other officer delegated the responsibility.
The Vienna convention however identifies the officers of a state who can sign on behalf of governments to include head of state, head of government, foreign affairs minister or heads of diplomatic missions or accredited persons.[4]
Kenya has not yet formulated any law that governs the signing of treaties and this has been left to the above named officers to decide for close to 40 million Kenyan citizens what is good or not good for us.
Knowing that some international companies and nations may have vested interests in some laws, they may influence the few officers representing a country, and this should be a cause to worry, if the laws may not be good for us.
This is more compounded by the fact that a state cannot invoke its internal rules to refuse to meet the obligations of a treaty[5] regardless of what the laws in the country provide.
The only bill that seeks to control or outline the procedure for ratifying treaties is the 'Ratification of Treaties Bill, 2011'. Hopefully when this becomes law it will regulate the legalization of treaties and ensure we sign treaties that are beneficial to Kenyans.
[1] Laws of Kenya, Constitution of Kenya, 2010 Article 2 (5) the general rules of international law shall form part of the law of Kenya.
[2] Ibid, Article 2 (6) any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution.
[3] Ibid, Article 132 (5) The President shall ensure that the international obligations of the Republic are fulfilled through the actions of the relevant Cabinet Secretaries.
[4] Vienna Convention on the Law of Treaties 1969, Article 7 (1) A person is considered as representing a State for the purpose of adopting or authenticating the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if:
(a) he produces appropriate full powers; or
(b) it appears from the practice of the States concerned or from other circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers.
2. In virtue of their functions and without having to produce full powers, the following are considered as representing their State:
(a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty;
(b) heads of diplomatic missions, for the purpose of adopting the text of a treaty between the accrediting State and the State to which they are accredited;
(c) representatives accredited by States to an international conference or to an international organization or one of its organs, for the purpose of adopting the text of a treaty in that conference, organization or organ.
[5] Ibid, Article 27, a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.
Kenya has been given a three-month ultimatum by the U.S to enact proper laws that will help in the fight against terrorism. Specifically, the U.S wants legislation that will make it harder for terrorists to get financing or do money laundering in the country. Washington believes that terrorists can easily raise money in the absence of these laws, which might be a reason for the persistent travel advisories against coming to Kenya.
Justice Minister Mutula Kilonzo was speaking on Tuesday when he said that the Financial Action Task Force had placed Kenya on a blacklist of uncooperative entities. The Financial Action Task Force on Money Laundering (FATF) was established by a G-7 Summit that was held in Paris in 1989 in response to mounting concern over money laundering. The Task Force was given the responsibility of examining money laundering techniques and trends, reviewing the action which had already been taken at a national or international level, and setting out the measures that still needed to be taken to combat money laundering. In April 1990, the FATF issued a report containing a set of Forty Recommendations, which provide a comprehensive plan of action needed to fight against money laundering. In October 2001, after 9/11, the development of standards in the fight against terrorism financing was added to the mission of the FATF.
In 2000, FATF issued a list of "Non-Cooperative Countries or Territories" (NCCTs), commonly called the FATF Blacklist. This was a list of jurisdictions that, for one reason or another, FATF members believed were uncooperative with other jurisdictions in international efforts against money laundering (and, later, terrorism financing). Typically, this lack of cooperation manifested itself as an unwillingness or inability (frequently, a legal inability) to provide foreign law enforcement officials with information relating to bank account and brokerage records, and customer identification and beneficial owner information relating to such bank and brokerage accounts, shell company, and other financial vehicles commonly used in money laundering.
In the past, the effect of the FATF Blacklist has been significant, and it has proven to be important in international efforts against money laundering. While, under international law, the FATF Blacklist carried with it no formal sanction, in reality, a jurisdiction placed on the FATF Blacklist often found itself under intense financial pressure.
The Justice minister said that Kenya has been advised to
➢ Ensure that financing terrorism is a very illegal thing
➢ Establish a proper legal framework that will allow the identification and freezing of a terrorist's assets.
➢ Create more awareness within the various law enforcement agencies
➢ Implement sanctions on anyone not complying with the laws.
Mutula Kilonzo however said that laws like the Prevention of Organized Crime Act and the Proceeds of Crime and Anti Money Laundering Act were already in existence and that all that was needed was for them to be amended.
Last week, the US Department of Treasury Official in Charge of Terrorist Financing and Financial Crimes, Mr Luke Bronin, was in the country to meet with various leaders including the Internal Security Minister George Saitoti, his counterpart in finance Njeru Githae and the Central Bank Governor Njuguna Ndung'u. It was Mr Bronin's opinion that Kenya needed to remove any loopholes with regards to terror financing and money laundering by putting in place proper legislation.
Trade marks in Kenya are regulated by the Trade Mark Act (Cap 506) Laws of Kenya. The institution charged with the mandate to register trade marks is the Kenya Industrial Property Institute (hereinafter "KIPI").
2.0 Process of Registration
The process of registration of trade marks undergoes the following stages:
Preliminary Search;
Application for Registration;
Examination;
Advertisement;
Opposition;
Registration.
2.1 Preliminary Search
Before applying for the registration of a trade mark, an applicant should conduct a search to find out whether the trademark is registrable or not and also whether there exists in the records a trademark which could be confused with the intended trade mark. An application for search and preliminary advice by the registrar should be made by the prospecting proprietor or his agent on Form TM 27 in the Act.
A search is not mandatory but is advisable for the following reasons;
It will help one in determining whether the application has a chance for success, or whether it would be a waste of time and money to try and register it in it's present form;
It will also help one avoid trade mark infringement and potential lawsuits if one went straight ahead in applying for registration.
2.2 Application for Registration
Once there is a confirmation that the mark is available for registration in a particular/various class(es), the next step would be to apply for registration of the mark.
A person claiming to be the proprietor of a trade mark, used or proposed to be used by him, and who is desirous of registering it applies for registration vide form TM 2 in the Act. This application is usually accompanied by seven (7) representations of the mark.
Foreign applicants are required to file through an agent and thus the application should be accompanied by the form of authorization Form TM 1 in the Act or the power of attorney duly completed and signed and must have a duty stamp affixed on it.
The application should also be accompanied by form TM 32 in the Act for entry of the address of service in Kenya. The applicant is required to file a separate application for each mark in each different class. On However, one can apply for registration of a mark in different classes.
2.3 Examination
Once the Application for registration is received, it then proceeds for examination. The mark will undergo three types of examination:
Formality examination: this involves finding out whether the right documents are filed, whether the forms included are properly filled, and the required fees is appropriately paid. It is necessary that the class should be checked against the specification and confirm that the name, description and address of the Applicant is clearly written;
Search: A Search is conducted to ascertain that there is no similar or closely resembling mark is on the register, otherwise the present application can be refused on that ground. If there exists a similar mark from the same applicant ordinarily an association is requested.
Substantive examination: During substantive examination, the mark is examined as to its distinctiveness. Normally the applicant is requested to remove non distinctive matter and descriptive elements. Where removal of such matter may result in the loss of the identity or substantially affect the main features of the mark entry of disclaimer is normally requested. Letters, Numerals, geographical names, names of places, names of communities, general representation of human beings, words or figures common in the respective trade are normally disclaimed. Logos, emblems, flags and Marks of International Organizations are normally not registrable by anybody else except the respective Organizations or one authorized by them to do so. Generic names of products are also not registrable.
Once the examination is complete KIPI will then communicate to the applicant or the Agent of the approval or disapproval. Incase of approval, the mark proceeds to advertisement. Incase of disapproval, one may appeal against the decision or abandon the application.
2.4 Advertisement
Once the Application accepted, advertisement is the next step. The Trade mark is advertised in the KIPI Journal (which is published monthly). This is to allow any interested party an opportunity to raise objections to the pending application prior to registration.
The information included in the Journal notice include; the number and filing date, the representation of the mark, the class, the specification of the goods or services, the name and address of the applicant, any other claims (Colour claims, disclaimers.)
2.5 Opposition
Any aggrieved party with valid grounds may oppose the registration of a trade mark so advertised in the Kenya Gazette. An opposition must be made within 60 days of the publication date, by filing a statement of opposition.
The process of opposition is sometimes rather involving and complex, much like the normal court proceedings, during which both parties may file evidence and counter-arguments, cross examine the evidence of the other parties and make representations at an oral hearing. At the end of the process the Registrar makes a ruling that is binding. Any dissatisfied party can file an appeal through the High court.
2.6 Registration
If there is no opposition to the trade mark after the statutory 60 days period from the date of advertisement, or if an opposition has been decided in the applicants favour, the application will be registered and the Institute will issue a Certificate of Registration and enter the registration.
It should also be noted that in case of an opposition during the advertisement stage, opposition proceedings have to commence and be finalized to allow the decision on whether or not to issue the certificate. The mark is registered as of the date of the application for registration, and the date is deemed to be the date of registration.
3.0 Transaction Cost
The cost in the registration of trade marks is set out in the Act. A basic registration transaction will usually cost as indicated below:
Search Fees
KES 2 000.00
Search Fee for each subsequent class
KES 1 000.00
Agency Fees
KES 1 000.00
Stamp Duty on TM1
KES 500.00
Application fee for the first class
KES 4 000.00
Application fee for each subsequent class
KES 3 000.00
Advertisement
KES 3 000.00
Advertisement fee for each subsequent class
KES 2 500.00
Registration
KES 2 000.00
Registration fee for each subsequent class
KES 1 500.00
As regards legal fee, The Advocates (Remuneration) (Amendment) Order 2009 sets the minimum fee to be charged for professional services rendered. In this case professional service fee is determined by the Remuneration Order, the amount of work and various complexities involved in the same.
Anthony Gakuru
Associate
Njoroge Regeru & Co. Advocates
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