Category: News

It has become abundantly clear that a taxpayer and their records relating to income and expenses are tied at the hip to support tax returns. The Kenya Revenue Authority (KRA) mandates that all taxpayers, from small informal traders to large corporations, maintain accurate and reliable financial records. The records should include sales ledgers, bank statements, purchase invoices, payroll details, and loan agreements where such transactions exist, as they form part of the primary documents required to support the returns filed.

Maintaining poor or fraudulent records may result in incorrect tax assessments and expose taxpayers to audits, severe penalties, interest on the unpaid taxes, and possible criminal prosecution.

Micro, small, and medium-sized enterprises (MSMEs) form a large part of Kenya’s business landscape, and many maintain their businesses informally with limited literacy or access to affordable bookkeeping tools. Record keeping allows businesses to claim legitimate deductions, access credit, track profitability, and comply seamlessly with the Kenyan tax laws. It is now mandatory for all businesses to comply with the electronic tax management system (eTims), which will enable a taxpayer to claim business expenses.

It is imperative that a taxpayer in Kenya understands the interplay between taxation and record-keeping. It is no longer a regulatory burden but a strategic business practice that promotes transparency and minimizes legal risks.

This article explores the legal framework, practice requirements, common mistakes, and benefits of proper record-keeping in the ever-evolving Kenyan tax regime.

 

What is the legal framework for record keeping in Kenya?

The law in Kenya, in particular the Income Tax Act, Cap. 470 and the Tax Procedures Act, Cap. 469B, impose statutory obligations that require all taxpayers to maintain and retain records sufficient to determine their tax liability. These records must be kept for a minimum period of five (5) years from the end of the year of income to which they relate.

 

In cases where a company is under liquidation or where an individual has a tax dispute, records will have to be maintained for a longer period until the liquidation is finalised or the dispute is resolved. Failure to maintain proper records constitutes an offence and attracts penalties up to KES 2 million for a body corporate or imprisonment for individuals, in addition to late payment interest and default penalties.

 

The Role of Technology: iTax and eTims

The tax regime in Kenya has evolved significantly through aggressive digitization of tax administration in a bid to attain compliance by taxpayers and to simplify tax administration. By introducing eTims, it is mandatory for businesses to generate and transmit all sales/transactions electronically in real time to KRA. With this enhanced requirement, inadequate record-keeping will be a thing of the past, as a taxpayer can only claim expenses generated through eTims.

All transactions must be accompanied by underlying records to generate eTims invoices. Failure to comply will result in mismatches between declared sales and KRA’s real-time data, leading to automatic audit triggers and investigations, estimated assessments, penalties and interest, objection and appeals, risk of listing with the Credit Reference Bureaus (CRBs), and bank account agency notices.

A taxpayer may think that compliance with eTims is expensive; however, KRA has provided free eTims solutions that allow a taxpayer to generate tax-compliant invoices.

 

Benefits of Proper Record Keeping

There are tangible advantages for a business to maintain proper records, and this should not be treated as a mere compliance requirement. A taxpayer who maintains proper records can claim all expenses resulting in an accurate tax computation, as they have the requisite documentation to support all the expenses claimed.

There is a lower risk of audit due to consistent and verifiable documentation, which ensures that a taxpayer does not end up on the KRA radar for audit purposes. Good record keeping allows the taxpayer to have better cash flow management, as this allows tracking of income and expenditure, thereby allowing timely settlement of tax obligations when the deadline approaches.

Good record keeping assists a business in accessing credit, as they will have an audited or properly prepared financial statement, which is required before banks or microfinance institutions can approve a loan. With proper records, where a taxpayer applies for VAT refund, supporting such an application is straightforward, as the purchases and sales records are accurate and verifiable, resulting in an increase in cash flow once approved.

 

Turnover Tax and the Informal Sector

The Income Tax Act, Cap. 470 provides for a simplified tax regime of Turnover Tax (TOT) currently at a rate of one point five percent (1.5%) on gross turnover payable monthly on the 20^th day of the following month. With a turnover of between 1 million and 25 million Kenya shillings, a taxpayer is eligible to opt to declare their income under this regime. This is a final tax, and there is no requirement to file an end-of-year income tax return. The taxpayer will be required to maintain records of daily sales to support the monthly returns.

With the recent pronouncements on tighter tax compliance measures by KRA, the informal sector will have to review its operations to comply to avoid tax assessments.

 

Related Case Law

Courts have considered the issue of tax assessments and maintaining records in several cases. The cases discussed below underscore that good record keeping is no longer just an administrative requirement but will also assist a taxpayer in legal disputes when assessments are raised by KRA.

In Avery Lounge Limited v Commissioner of Domestic Taxes (Income Tax Appeal E213 of 2024) [2026] KEHC 769 (KLR) (Commercial and Tax) (30 January 2026) (Judgment), the taxpayer was profiled by KRA as a nil filer or non-filer as they either declared zero income or failed to file returns despite having commercial activity. The appeal to the High Court challenged the Tax Appeals Tribunal (Tribunal) decision, which emphasised that the burden of proof lay with the taxpayer. The Tribunal further held that the taxpayer had failed to provide sufficient documentary evidence to rebut the assessment by KRA.

The High Court on appeal upheld the decision of the Tribunal and stated that the taxpayer did not provide primary evidence in accounting, which consists of the source documents: the sales receipts, the invoices, the loan agreements, and the ledger entries that classify each transaction. In the circumstances, the taxpayer did not establish a prima facie case to discharge the burden of proof. The court further determined that KRA was justified in applying the banking analysis method as the taxpayer had failed to provide the requisite documents to support expenses incurred in the production of income, as well as the loans and repayment schedules.

In the case of Ng’ang’a v Commissioner of Legal Services and Board Coordination (Tax Appeal E029 of 2025) [2026] KETAT 11 (KLR) (16 January 2026) (Judgment) the Tribunal considered the case of a taxpayer operating as a sole proprietorship who filed nil returns resulting in an assessment being issued on the basis that they had not provided sufficient documentation to support the business operations. The assessment was based on an analysis of the taxpayers’ banking records, where the net banking was treated as expected income for purposes of determining taxable income.

The Tribunal held that the assessment by KRA enjoys a presumption of correctness until rebutted by probative documentary evidence presented by the taxpayer. It was therefore the taxpayer’s legal obligation to provide primary documents, records, reconciliations, ledgers, bank statements, source documents or other supporting records which would be sufficient to demonstrate that the Commissioner’s assessment was erroneous.

This case reaffirms the position that it is not only sufficient for a taxpayer to make assertions, generalized explanations or contest principles, but rather the taxpayer must demonstrate with specificity the error, which must be supported with hard evidence. Having interrogated the documents presented before the Tribunal, it determined that the taxpayer did not provide documents to contradict, weaken or invalidate KRA’s adjustment. Rather, the taxpayer had challenged the methodology and conclusions applied by KRA. In the circumstance, KRA was justified in making the best judgment assessment. The Tribunal re-emphasised that the taxpayer did not discharge the burden of proof and therefore KRA’s assessment was correct.

 

Finally, in Nakuru Cement Supplies Limited v Commissioner of Investigations and Reinforcement (Tax Appeal E038 of 2021) [2022] KEHC 16518 (KLR) (Commercial and Tax) (16 December 2022) (Judgment) the High Court held that the taxpayer was the custodian of their own business affairs and possessed the specific knowledge as a result the court determined that the taxpayer was the custodian of the necessary documents required under section 58 of the Tax Procedures Act to maintain records which were to be submitted to KRA. The court further stated that if these documents were provided, they would have proven or disproved the information acquired from suppliers and relied upon by KRA in the assessment.

 

Conclusion

It is no longer business as usual, as taxation and maintaining good records are not just an administrative requirement to attain compliance but part of the normal operation of a business and cannot be overlooked. It is an express requirement of the law, and technology has been introduced to enforce it, and failure results in penalties charged together with interest. Taxpayers must therefore engage in tax education and acquire the requisite digital tools to assist in maintaining their business transactions and accounting systems. It is also prudent to engage professionals such as ourselves to undertake tax health checks and further assist when a dispute arises.

 

The intersection between Mental health and Employment law in Kenya has become a focal point for judicial scrutiny. Two recent landmark decisions, AWW (Suing as Next Friend and Mother of GWW) v Central Bank of Kenya [2024] KEELRC 13585 (KLR) (“AWW v CBK”) from the Employment and Labour Relations Court (ELRC) at Nairobi and Chief of Kenya Defence Forces & another v Etyang [2026] KECA 175 (KLR) (“KDF v Etyang”) from the Court of Appeal (CoA) sitting at Kisumu, serve as a clarion call for employers to rethink how they manage employees struggling with mental related illnesses.

These judicial decisions have now lifted the veil on what the law demands, underscoring a significant paradigm shift in Kenyan jurisprudence. The courts have moved beyond mere procedural compliance with the Employment Act (Cap. 226 of the Laws of Kenya), establishing that employers now bear an affirmative, substantive duty to accommodate mental health conditions.

Together, they send an unambiguous message: dismissing an employee on account of mental ill-health, without first discharging specific duties of assessment, care and reasonable accommodation, exposes employers to substantial legal and financial liability.

 

The Shift: Beyond “Service No Longer Required”

Historically, employers have relied on standard disciplinary frameworks to handle performance issues or absenteeism. Often, conduct directly linked to underlying medical and psychological conditions was incorrectly classified as “insubordination,” “desertion”, or “absenteeism”. The recent judgments make it clear that this approach is no longer tenable.

• Affirmative Duty to Investigate: When an employee displays signs of deteriorating mental health, an employer cannot simply proceed with disciplinary action. There is a positive duty to investigate the underlying medical causes and the extent of the employee’s incapacity.
• The “Lucid Interval” Fallacy: In the AWW v Central Bank of Kenya decision, the employer argued that the employee had lucid moments during the disciplinary process. However, the ELRC held that appearing lucid does not automatically mean the employee possesses the mental capacity to understand the gravity of the charges or to defend themselves adequately.

 

Reasonable Accommodation as a Statutory Mandate

Reasonable accommodation is not an optional courtesy; it is an obligation imposed by section 15 of the Persons with Disabilities Act (Act No. 4 of 2025) and section 5 of Cap. 266. Employers must actively explore all available alternatives before considering the termination of employment.

Further, section 3 of the Mental Health Act (Cap. 248 of the Laws of Kenya) provides that every person with mental illness has the right to participate fully in society in roles suited to their abilities, access necessary medical, social and legal services, be protected from abuse, discrimination and exploitation, engage in activities that promote their well-being and receive reasonable care and support from their family and the State.

These obligations stem from the Constitution of Kenya, 2010 (Constitution) at – Article 25(a), which guarantees freedom from torture, cruel, inhuman, or degrading treatment; Article 27, which provides for equality and freedom from discrimination; Article 28, which upholds the right to human dignity; Article 41, which ensures the right to fair labour practices; Article 43(1)(a), which guarantees the right to the highest attainable standard of health; Article 47, which provides for fair administrative action; and lastly, Article 50, which ensures the right to a fair trial.

 

What Constitutes Reasonable Accommodation?

Reasonable accommodation requires employers to be flexible and supportive. The courts have highlighted several measures that employers should consider:

• Workplace Modifications: Reallocating non-essential duties, reducing work targets, or shifting the employee to a less stressful environment.
• Medical Support Facilitation: Granting adequate medical leave and assisting the employee in accessing or navigating the employer-provided medical insurance scheme.
• Alternative Roles: Exploring whether the employee can be redeployed to a position that accommodates their health condition.

Failure to implement these steps or subjecting a mentally incapacitated employee to disciplinary action while aware of their condition constitutes indirect discrimination under Article 27 of the Constitution.

 

Procedural Fairness vs. Substantive Compassion

In the KDF v Etyang case, the CoA highlighted the dangers of applying rigid disciplinary frameworks to individuals whose mental health condition stems from workplace trauma.

Key takeaways for employers regarding procedure include:

• Section 41 Compliance is Insufficient: Strictly adhering to the procedural requirements of Section 41 of Cap. 266 (such as the right to be heard) is legally deficient if the employer knows or ought to know that the employee lacks the cognitive capacity to comprehend the hearing.
• Reliance on Medical Evidence: Decisions regarding termination or unfitness for duty must be grounded in professional assessments by qualified medical practitioners or a properly constituted Medical Board.

 

Financial and Reputational Repercussions

The courts are increasingly willing to award substantial damages to deter the mistreatment of vulnerable employees.

• Compensation for Cruel Treatment: In the AWW v CBK case, the court awarded 12 months’ salary (Kshs. 1,008,000.00) as compensation for the cruel treatment the employee suffered when her livelihood was stripped away.
• Damages for Discrimination: The court in the AWW v CBK case additionally awarded Kshs. 4,000,000.00 in general damages specifically for discrimination on the account of a mental disability.
• Constitutional Violations: In KDF v Etyang, the ELRC awarded a global figure in compensatory damages amounting to Kshs. 30,000,000.00 (although it was revised down on Appeal to Kshs. 25,000,000 by the Court of Appeal (CoA). This award was deemed appropriate to address the gross violations of the employee’s constitutional rights and the significant impact on his health, dignity and livelihood. The court emphasised that the unlawful discharge, failure to provide adequate medical care and the cruel and degrading treatment the Respondent endured warranted such substantial monetary compensation.

 

Road To the Supreme Court

The KDF v Etyang case does not end at the CoA. In a ruling delivered on 30 January 2026 (Civil Application E128 of 2025), the CoA granted the Chief of Kenya Defence Forces and the Attorney General an enlargement of time to file a notice of appeal to the Supreme Court. That ruling, delivered by Kimaru JA, sets the stage for what may become a landmark pronouncement by Kenya’s apex court on the constitutional dimensions of mental health in the employment context. At this point, whether the intended appeal raises matters of general public importance sufficient for certification will be determined by the full bench of the CoA. The matter is now on a trajectory that could deliver Kenya’s first Supreme Court pronouncement on the employer’s duty to accommodate employees with mental illness. Nonetheless, in allowing the application, the CoA implicitly acknowledged that a prima facie case for constitutional significance exists.

 

Practical Implications for Employers

In our assessment, read together, the decisions discussed above establish a clear framework that all employers — public or private, should observe when managing employees whose mental health is in question:

 

• Pre-Disciplinary Assessment: An employer who becomes aware of an employee’s mental health condition must, before initiating or proceeding with disciplinary action, obtain medical evidence from a duly qualified and certified medical practitioner on whether the employee has the mental capacity to meaningfully participate in those proceedings. Proceeding without this assessment renders any resulting process and outcome liable to be set aside.
• Alternatives to Dismissal: The burden falls on the employer to explore, document, and exhaust every reasonable option short of termination, adjusted duties, extended sick leave, phased return-to-work arrangements, or redeployment. Only after demonstrating that no reasonable accommodation is workable can an employer proceed to set in motion the lawful process of termination of the employee from employment.
• Reasonable Accommodation: sections 5 and 44(4) of Cap. 266, read with section 15 of Act No. 4 of 2025, and Article 27 of the Constitution, impose a positive duty on employers to accommodate employees with disabilities, including mental illness. A failure to go beyond ordinary medical benefits to specifically tailor support to the employee’s condition will be treated as indirect discrimination.
• Documentation: Courts will scrutinise the employer’s conduct with considerable care. The absence of documented assessments, accommodation attempts, or medical referrals will count heavily against an employer and may expose it to significant damages, over and above ordinary termination awards.
• Uniformed Services Not Exempt: The KDF v Etyang judgment confirms that constitutional protections apply across all employment relationships, including military service. Operational culture and internal disciplinary frameworks do not displace the duty of care owed to service members whose health deteriorates in the course of duty.

 

Conclusion

Workplace practices that ignore the realities of mental health now carry significant legal and financial risks. These recent decisions make clear that employers must move beyond rigid disciplinary processes and adopt structured, compassionate support systems. Mental illness is neither misconduct nor a convenient basis for termination; it triggers a duty—not a discretion—to assess an employee’s capacity, provide support, and meaningfully explore reasonable accommodation before any adverse action is taken.

Employers who rely solely on show-cause letters and disciplinary hearings in response to mental ill-health expose themselves to potential risks. The consequences extend beyond financial liability, reflecting judicial findings that an employee’s dignity and constitutional rights have been infringed. Accordingly, organisations should re-look and review their internal policies, equip Human Resource practitioners and managers with a clear understanding of the “duty to accommodate” and implement practical protocols for handling mental health challenges in the workplace.

For now, pending the Supreme Court’s determination of the KDF v Etyang case, the position established by the ELRC and affirmed by the CoA remains intact; dismissal on grounds linked to mental ill-health, without proper capacity assessment and genuine efforts at accommodation, is unlawful and borders on indirect discrimination. The trajectory of the KDF v Etyang litigation, from the ELRC to the CoA and now towards the Supreme Court, underscores the seriousness with which the judiciary views this issue as a matter of public interest and serves as a clear red light to employers to act proactively rather than belatedly.

Mental health in the workplace is no longer a peripheral issue in employment law. Courts are increasingly examining how employers respond to employees facing psychological challenges, particularly where disciplinary action is involved. A recent decision of the Employment and Labour Relations Court (ELRC) highlights a key principle: compliance with procedure alone is not enough,employers must ensure substantive fairness where mental health is concerned.

In AWW (Suing as Next Friend and Mother of GWW) v Central Bank of Kenya [2024] KEELRC 13585 (KLR), the Court considered whether an employer acted lawfully in terminating an employee with a known mental illness following a disciplinary process. The decision underscores the growing expectation that employers must go beyond formal compliance and actively accommodate vulnerable employees.

 

Background of the Case

The claimant filed the suit on behalf of her daughter, who had been employed by the respondent since 2009. During her employment, the employee developed mental health conditions, including bipolar mood disorder and schizoaffective disorder. These conditions were documented and known to the employer.

Over time, the employee began experiencing workplace challenges, particularly absenteeism linked to her condition. The employer initiated disciplinary proceedings, issued notices to show cause and convened a disciplinary hearing. In 2020, her employment was terminated on grounds of gross misconduct.

The claimant argued that the termination was unfair and discriminatory, stating that the employer failed to consider the employee’s mental condition, did not provide reasonable accommodation and subjected her to a process she could not meaningfully participate in.

 

What the Law Provides on Fair Termination and Disability

Kenyan law requires both procedural and substantive fairness in termination. Section 41 of the Employment Act mandates that an employee be given a fair hearing, including an opportunity to respond to allegations.

Additionally, Article 27 of the Constitution guarantees equality and freedom from discrimination, while section 5 of the Employment Act prohibits discrimination in employment.

Together, these provisions impose a duty on employers not only to follow due process but also to take into account the specific circumstances of employees, particularly where disability is involved.

 

What Happened in Practice

The employer maintained that it had supported the employee through medical care and counselling and that it followed due process in terminating her employment. It argued that the employee had moments of lucidity and was therefore capable of participating in the disciplinary process.

However, the Court identified a critical gap. While a disciplinary process was conducted, there was no medical evidence confirming that the employee was mentally fit to understand or respond to the allegations at the time.

The Court emphasized that a fair hearing must be meaningful. It is not enough to issue notices and conduct a hearing; the employee must be in a position to comprehend and defend themselves. Subjecting a mentally unwell employee to such a process without confirming their capacity rendered the process unfair.

 

Reasonable Accommodation: A Legal Duty

A central issue in the case was whether the employer fulfilled its obligation to provide reasonable accommodation. While the employer facilitated medical treatment, the Court found that this did not go far enough.

Reasonable accommodation requires practical workplace adjustments, such as modifying duties, reducing workload or transferring the employee to a less stressful role. Evidence showed that the employee’s condition may have been worsened by her work environment, yet no meaningful adjustments were made.

The Court reiterated that employers must investigate the extent of an employee’s incapacity and explore alternatives to dismissal. Failure to do so may amount to discrimination.

 

The Court’s Determination

The Court held that the termination was both unfair and discriminatory. It found that:

• The disciplinary process was flawed due to the employee’s mental incapacity;
• The employer failed to provide reasonable accommodation; and
• The employee was treated in a discriminatory manner due to her mental condition.

The Court awarded compensation equivalent to 12 months’ salary for unfair termination and Kshs 4,000,000 as damages for discrimination, totaling Kshs 5,008,000 plus costs and interest.

 

Implications for Employers

This decision reinforces that mental health must be treated as a serious workplace issue with legal consequences. Employers must ensure that disciplinary processes are not only procedurally correct but also fair in substance.

Where an employee’s mental capacity is in question, employers must assess their ability to participate in proceedings and consider adjustments. Additionally, the duty to accommodate requires proactive steps to adapt the work environment to the employee’s condition.

Failure to meet these obligations may expose employers to liability for both unfair termination and discrimination.

 

Conclusion

This case highlights a shift in employment law towards a more nuanced understanding of fairness. Employers are required to move beyond rigid procedures and adopt a more responsive approach where mental health is concerned.

Ultimately, true compliance lies not just in following the law, but in applying it in a manner that protects the dignity and rights of all employees, particularly those who are most vulnerable.

The 2026 Labour Day celebrations in Kenya focused on the dignity of labour and the promotion of decent work for all workers, including the right to fair wages and safe working environments.

Therefore, the right to fair labour practices forms a foundational pillar in promoting fairness and harmony within the Kenyan workplace. Article 41 of the Constitution of Kenya guarantees every worker the right to fair labour practices, including the right to form, join and participate in the activities of a trade union. This constitutional right is operationalized through the provisions of the Labour Relations Act, Chapter 233 of the Laws of Kenya (“the Act”), which provides the legal framework governing trade unions, employers, collective bargaining, and dispute resolution mechanisms.

Part VII of the Act is particularly key in regulating the relationship between employers and trade unions. Sections 54 to 57 of the Act govern four (4) key aspects of labour relations: recognition of trade unions, election of union representatives, access to the employer’s premises, and collective bargaining agreements. Collectively, these provisions promote labour relations while balancing the rights and interests of both employers and employees.

Below, we highlight a few decisions by the Employment and Labour Relations Court (ELRC) that have brought into focus the application of the above-highlighted provisions of the Act.

 

1) Recognition of Trade Unions under Section 54 of the Act

Section 54 establishes the legal threshold for recognition of a trade union by an employer for purposes of collective bargaining. An employer is obligated to recognize a trade union for the purposes of collective bargaining if that trade union represents the simple majority of unionisable employees.

 

In Kenya Plantation and Agricultural Workers Union v Carnation Plants Limited [2013] KEELRC 534 (KLR), the Court observed that recognition grants a trade union the authority to negotiate terms and conditions of employment on behalf of employees within the bargaining unit. The Court further emphasized that recognition without collective bargaining would render Section 54 meaningless.

In Kenya Tertiary and Schools Workers Union (KETASWU) v Teachers Trainers College Councils, Kaimosi TTC [2019] KEELRC 2115 (KLR), the Court reaffirmed that the statutory threshold under Section 54 is satisfied once a union demonstrates membership exceeding 50 percent plus one. The constitutionality of the recognition threshold itself was addressed in Kenya Union of Commercial, Food and Allied Workers v Attorney General & another; Central Organization of Trade Unions (Interested Party) [2021] KEELRC 1902 (KLR), where the ELRC upheld the requirement as reasonable and proportionate. According to the Court, the threshold promotes orderly bargaining and minimizes fragmentation of representation within the workplace.

 

2) Trade Union Representation and Workplace Democracy under Section 55 of the Act

Section 55 of the Act provides that recognition agreements ought to provide for the election of trade union representatives amongst the union members in the workplace. These representatives, commonly referred to as shop stewards, play an important role in communication between employees, employers and the trade union.

The functions of the trade union representatives are limited in the Act to (a) represent members in grievance and disciplinary hearings at the workplace; and (b) perform any other functions specified in the recognition agreement or constitution of the trade union. This provision enhances employee participation and ensures that employees are not left vulnerable during disciplinary proceedings. Trade union representatives also facilitate the resolution of grievances at an early stage before they escalate into unrest.

The election of representatives by employees reinforces democratic participation within trade unions, such that employees are represented by individuals who understand their needs and grievances within the workplace.

 

3) Trade Union Access to Employer Premises under Section 56 of the Act

Effective union representation cannot occur in isolation from employees and therefore the Act requires that employers grant trade unions reasonable access to the employer’s premises to pursue lawful activities of the trade union, including but not limited to: (a) recruiting members for the trade union; (b) holding meetings with members of the trade union and other employees outside working hours; (c) representing members of the trade union in dealings with the employer; and (d) conducting ballots in accordance with the Constitution of the trade union.

The Act strikes a balance between the employer’s rights and the operational efficiency of the trade union. While the trade unions ought to be granted access, the Act allows the employer the power to impose reasonable conditions as to the time and place of the rights granted to the trade union. This assists in avoiding disruption of operations in the employer’s organization as well as acting in the interest of safety for all.

The ELRC has provided guidance on what constitutes “reasonable access” under Section 56 of the Act. In Banking Insurance and Finance Union v APA Insurance Company Limited [2025] KEELRC 2714 (KLR), the Court held that requiring a trade union to pay for the venue as a condition for accessing employees imposed an unreasonable burden on the trade union. The court emphasized that reasonable access must balance the trade unions’ rights to organize with the employer’s right to manage its operations without undue disruption.

Further, Courts have equally recognized that employer restrictions may be justified where they are reasonable and operationally necessary. In Kenya Scientific Research International Technical and Institutions Workers Union v Thermopark Limited [2023] KEELRC 1780 (KLR), the Court ordered that recruitment activities be conducted outside official working hours or in a manner that would not interfere with the employer’s operations.

Similarly, in Kenya Private Universities Workers Union v Islamic University of Kenya [2025] KEELRC 252 (KLR), the Court upheld the employer’s requirement that a trade union official should provide proof of identity and credentials before being granted access to the employer’s premises.

 

4) Collective Bargaining Agreements under Section 57 of the Act

Section 57 of the Act requires that employers who have recognized trade unions conclude Collective Bargaining Agreements (CBAs) with the recognized trade union, setting the terms and conditions of employment.

To facilitate meaningful negotiations, the Act requires employers to disclose relevant information necessary for collective bargaining. It follows that adequate disclosure of information ensures that trade unions negotiate from an informed position, hence promoting fairness in the bargaining process. The Act protects confidentiality at the time of disclosure of information by prohibiting the disclosure of privileged information.

The scope of disclosure obligations was considered in Kenya Engineering Workers Union v Bhachu Industries Limited [2023] KEELRC 1851 (KLR), where the Court held that an employer claiming confidentiality must specifically demonstrate why the information sought is privileged. The Court found that mere assertions of confidentiality without justification were insufficient.

 

Conclusion

The Act establishes a comprehensive framework governing collective labour relations in Kenya. The Courts have demonstrated that recognition and collective bargaining are not merely procedural requirements, but essential components of meaningful labour relations. As the country works towards building a better future for all workers, labour relations continue to evolve in the workplace, and as such, in order for employers to provide a decent and dignified work environment for their employees, they must remain alive to their statutory obligations under the Act and the law in general.

On 20 June 2026, the world marks the 75^th anniversary of the 1951 United Nations Convention Relating to the Status of Refugees (“the UN Refugee Convention”) which is the cornerstone of international refugee protection. As the United Nations High Commissioner for Refugees (“UNHCR”) observes, the UN Refugee Convention has saved lives, protected rights, and enabled millions of refugees to rebuild their livelihoods – establishing principles such as non-refoulement and rights to documentation, education, movement and work. This alert examines Kenya’s current refugee protection regime, focusing on access to employment.

 

The Old v The New: A Progressive Shift

The Refugees Act, 2006 (“the 2006 Act”) domesticated Kenya’s obligations under the UN Refugee Convention and the 1969 Organization of Africa Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (“the OAU Refugee Convention”). Before the enactment of the 2006 Act, refugee matters in Kenya were largely handled administratively. The 2006 Act created formal structures, including the Department of Refugee Affairs, and provided a legal framework for the recognition and management of refugees.

However, the 2006 Act did not provide refugees with direct access to employment. Section 16 (4)  of the 2006 Act subjected refugees to the same restrictions as other non-citizens, effectively requiring work permits under the relevant immigration law. This meant that refugees had to meet employer sponsorship or skills-based criteria designed for economic migrants, in order to qualify for work permits.

The Refugees Act, 2021 (“the 2021 Act”) introduced a significant shift. Section 28 (5) of the 2021 Act grants refugees the right to engage in gainful employment, business, or professional work, subject to applicable laws but with consideration of their special circumstances. The use of “shall have the right” denotes a statutory realignment and establishes a clear legal entitlement for refugees to gainful employment.

Additionally, the 2021 Act provides for issuance of refugee identification documents, which are crucial for enjoying rights and services, including access to financial services. This reflects a legislative intent to enable refugees to participate economically and integrate fully into society.

 

Legislative Intent

The omission of restrictive language from the 2006 Act and its replacement with an affirmative right to work is indicative of a deliberate policy shift. Under principles of statutory interpretation, including the doctrine of implied repeal, the subsequently enacted and more specific 2021 Act should prevail over earlier enacted statutes on matters concerning refugee affairs in case of any inconsistency, including immigration law.

The phrase “subject to the applicable laws” should therefore be construed accordingly and should not be interpreted in manner that would defeat or nullify refugees’ right to work, but rather, preserve only non-conflicting or complementary requirements to enable the realization of the right.

 

Immigration Law v Refugee Protection

Kenya’s Citizenship and Immigration Act, 2011 (“the Immigration Act”) imposes strict work-permit requirements on all non-citizens. Employment without a permit where such permit is required is unlawful, and employers must obtain authorization before hiring foreign nationals. The law on immigration is designed to regulate economic migration and protect the domestic labour market – which is a matter of concern for every nation and its citizens.

Refugees, however, find themselves in foreign countries not due to economic migration, but rather, forced migration often fueled by armed conflict resulting in the arising protection obligation of the receiving state. Refugees cannot safely return to their home countries, and Kenya is legally bound under the UN Refugee Convention and the OAU Refugee Convention to offer them protection. The 2021 Act recognizes “special circumstances” that apply to refugees which implies that ordinary immigration restrictions should not be strictly applied to refugees. Applying the same work permit requirements to refugees as to ordinary economic migrants is to disregard the special circumstances pertaining to refugees alluded to in the 2021 Act.

Unlike economic migrants, refugees should not be required to demonstrate scarce skills or secure employer sponsorship. Section 28 (5) of the 2021 Act only requires that refugees’ qualifications be recognized by competent authorities.

Imposing ordinary work-permit criteria would likely exclude most refugees, effectively rendering their lawful right to work wholly illusory. The refugee statutory framework is therefore distinct from labour migration systems and each should be considered in its own light.

 

Constitutional Considerations

Constitutionally, Kenya guarantees equality (Article 27) and fair labour practices (Article 41) to all persons and makes no qualification as to the person’s status as a citizen, immigrant or refugee. Kenya has ratified both the UN Refugee Convention and the OAU Refugee Convention and as such, these Conventions have the force of law pursuant (Article 2). Notably, any law that is found to be inconsistent with the Constitution is null and void to the extent of such inconsistency.

To the extent therefore that any law or regulation would operate to deny refugees access to work, such law or regulation would be in conflict with Kenya’s obligations under the UN Refugee Convention and the OAU Refugee Convention, and arguably unconstitutional.

 

Practical Implications

Following the restrictive enactment of the 2006 Act, Kenya introduced the Class M Work Permit for refugees, which is issued free of charge. However, it is arguable that requiring such permits is tantamount to reintroducing the same barriers that the 2021 Act sought to remove.

A more purposeful approach and interpretation would be that recognized refugees with valid identification documents should be able to be employed without undergoing immigration permit processes. Treating refugee documentation as sufficient basis for employment would be consistent with the legislative intent of the 2021 Act and the legal obligation of refugee protection.

 

Conclusion

The 2021 Act reflects a progressive shift toward recognizing refugees as meaningful contributors to the country’s economy, in spite of their troubled background. Maintaining restrictive immigration controls risks undermining this recognition. A coherent legal approach requires interpreting refugee law as it properly should – with the unwavering intention of protecting refugees and uplifting their livelihoods.

Must an employer put workplace discipline on hold until the criminal process runs its course? Kenyan courts have consistently held that criminal proceedings and internal disciplinary processes are distinct, independent, and governed by different legal standards. As a result, an acquittal in a criminal case does not automatically shield an employee from disciplinary action, just as the pendency of criminal proceedings does not bar an employer from instituting internal disciplinary measures.

This principle was recently reaffirmed in Ogola v Bamburi Cement PLC [2026] KEELRC 1294 (KLR), where the Employment and Labour Relations Court held that an employer could lawfully summarily dismiss an employee for gross misconduct despite the Director of Public Prosecutions declining to institute criminal charges.

 

Recent Jurisprudence – The Ogola Case

In the Ogola (supra), the claimant, an electrical technician employed by Bamburi Cement PLC, was found leaving the employer’s premises with electronic spare parts allegedly belonging to the company. Although police investigations did not culminate in prosecution, the employer conducted internal disciplinary proceedings and summarily dismissed him for breach of trust and gross misconduct. The claimant argued that since he had not been charged criminally, the dismissal was unfair.

The Court rejected this argument and emphasised that employment discipline is separate from criminal justice. The Court held that under sections 41, 43, and 44 of the Employment Act, an employer only needs to demonstrate that it genuinely believed, on reasonable grounds, that the employee committed misconduct warranting dismissal.

 

Judicial Precedent

The foundation of this doctrine in Kenyan jurisprudence can be traced to James Mugera Igati v Public Service Commission of Kenya [2014] KEELRC 735 (KLR). In that decision, the Court categorically stated that there is nothing in the Employment Act or Public Service Commission Regulations tying disciplinary proceedings to criminal proceedings arising from the same facts. The Court distinguished the two processes by observing that disciplinary proceedings are private employment processes intended to protect the employer’s operational integrity, while criminal proceedings are public processes aimed at protecting society and maintaining public order.

The Court of Appeal subsequently endorsed this reasoning in Attorney General & another v Andrew Maina Githinji & another [2016] KECA 817 (KLR). The Court held that an acquittal in a criminal case does not prevent an employer from instituting disciplinary proceedings based on the same facts. The Court emphasised that the standards of proof are fundamentally different; criminal liability must be established beyond reasonable doubt, whereas employment discipline is determined on a balance of probabilities.

This distinction is critical. Criminal courts are concerned with whether an accused person committed an offence punishable by law, while employers are concerned with whether an employee’s conduct has destroyed trust, breached workplace rules, or undermined the employment relationship. An employee may therefore be acquitted because the prosecution failed to meet the high criminal threshold, yet the employer may still possess sufficient evidence to justify disciplinary sanctions.

The Court of Appeal reiterated this principle in Judicial Service Commission & another v Nyagol [2024] KECA 198 (KLR), where it held that criminal proceedings and disciplinary proceedings are founded on entirely different legal regimes. The Court observed that disciplinary proceedings arise from the contract of employment and internal workplace regulations, while criminal proceedings arise from statutory criminal law. The Court of Appeal further clarified that neither of the two processes binds the other. Thus, an acquittal does not automatically invalidate disciplinary action, nor does a criminal conviction automatically justify dismissal without compliance with section 41 of the Employment Act. Employers must still observe procedural fairness, including issuing a notice to show cause and accord the employee an opportunity to be heard.

 

Kenyan courts have also cautioned employers against indefinitely suspending disciplinary proceedings merely because criminal investigations are pending. In Teachers Service Commission v Makokha [2023] KEELRC 2518 (KLR), the Court rejected the proposition that disciplinary proceedings should automatically await the conclusion of criminal trials. The Court reasoned that employers cannot hold employees in disciplinary limbo indefinitely due to slow-moving criminal processes. This position reflects practical workplace realities. Criminal investigations and prosecutions in Kenya may take years to conclude. Requiring employers to await criminal outcomes before taking action would paralyse workplace discipline and undermine operational integrity, particularly in cases involving dishonesty, theft, fraud, or breach of trust.

The doctrine is especially significant in cases involving breach of trust. In Bamburi Cement Limited v William Kilonzi [2016] KECA 546 (KLR), cited extensively in Ogola (supra), the Court of Appeal held that the essential question is whether the employer had reasonable and sufficient grounds to suspect misconduct resulting in a breakdown of trust and confidence in the employment relationship. The Court stated that dishonesty or misconduct need not be proved to the criminal standard for dismissal to be justified.

 

Conclusion

The overarching lesson from Kenyan jurisprudence is therefore balanced. Employers are not required to await criminal prosecution before disciplining employees. However, employers must still comply fully with sections 41, 43, and 45 of the Employment Act by ensuring substantive justification and procedural fairness.

Ultimately, the Kenyan courts have developed a coherent and commercially practical doctrine: criminal law protects public order, while disciplinary processes protect workplace integrity. Although the two may arise from the same facts, they serve different objectives, apply different standards of proof, and operate independently. For employers, the message is clear, disciplinary action need not await the outcome of the criminal process, provided the requirements of fairness under employment law are met.

 

The Court of Appeal, in its recent decision in Kenya County Government Workers’ Union v Embu County Government & another (Civil Appeal No. 178 of 2020) [2026] KECA 1481 (KLR) (24 July 2026), addressed the tension between the legitimate use of successive fixed-term contracts and the protection accorded to employees whose work is permanent, continuous and integral to an organisation’s operations. The Court also examined the legal consequences that arise where the substance of an employment relationship departs from its contractual form.

 

Background and Facts of the Appeal

The claimant Union instituted these proceedings before the Employment and Labour Relations Court alleging discrimination in employment contrary to Article 27 of the Constitution and violation of the right to fair labour practices guaranteed under Article 41 of the Constitution. The Union contended that the County Government of Embu had engaged employees on successive fixed-term contracts lasting between six months and one year while simultaneously characterising those engagements as casual employment, contrary to sections 10(3)(c) and 37 of the Employment Act.

The County Government denied the allegations of discrimination. It maintained that it had inherited employees serving under fixed-term contracts and that the Employment Act recognises the principle of freedom of contract. Consequently, it argued that it was entitled to engage employees through any lawful form of employment, including fixed term and casual contracts.

 

The Court’s Findings

The Court of Appeal allowed the appeal by the Union. In so doing it considered, among other issues, whether the use of successive fixed-term contracts amounted to discrimination and whether the employees engaged as casual workers, had by operation of section 37 of the Employment Act, transitioned into permanent employment.

The Court answered both questions in the affirmative.

In determining the true character of the employment relationship, the Court adopted a substance-over-form approach. It reiterated that the character of an employment relationship is not determined solely by the contractual label assigned by the employer, but by the practical realities of the relationship assessed on case-by-case basis.

Applying that principle, the Court’s found that the employees had performed work of a permanent and continuous nature for prolonged periods, in some cases extending to twenty years. The Court held that the successive fixed-term contracts did not reflect genuine fixed-term engagements but constituted an elaborate device designed to deny employees the statutory and constitutional protections to which they were entitled. The contractual labels adopted by the employer were therefore not conclusive of the true nature of the employment relationship and could not defeat the employees’ rights under Article 41 of the Constitution.

Similarly, in addressing the interpretation of section 37(1) of the Employment Act, the Court held that the employees designated as casual workers fell within the protection of section 37(1) of the Employment Act. The employees having worked continuously for an aggregate period of not less than a month and performed duties that were not reasonably to be concluded within a specific period, by operation of the law converted the casual employment contracts to term contracts, entitling them to the protections available to regular employees.

 

Significance of the Judgment

The legal consequences of fixed-term contracts and their termination are well settled. However, his decision demonstrates that the application of fixed-term contracts is subject to the peculiar facts of each case.

The finding in Kenya County Government Workers’ Union case reinforces that the mere existence of a fixed-term contract does not, by itself, immunise such contracts and their implementation from judicial scrutiny. The Court of Appeal while recognising the freedom to contract in fixed term contracts as enunciated in the well-known decision of Transparency International–Kenya v Teresa Carlo Omondi reemphasized the relevance of substance-over-form analysis of employment contracts.

The takeaway for employers is that the drafting and implementation of termination clauses in fixed contracts carry a menacing potential for legal liability.  Ambiguous termination clauses are in general held against the maker, being the employer in this regard. As such, employers do not enjoy a carte blanch to structure and implementation of fixed term contracts in a manner that defeats statutory and constitutional labour protections.

The practical implication for employers is that legal exposure increases with the number and duration of successive renewals, particularly where the employee continues to perform work of a permanent and continuous nature.

In determining whether work is permanent and continuous, relevant considerations are whether the functions are integral to, and continuously required by and/or, for the employer’s operations. The centrality of the role played by the employee alone, however, is not determinative; courts will review the totality of the employment relationship. Consequently, employers should exercise due care in determining the duration and structure of fixed-term contracts, considering the nature of the work, the genuine operational justification for limiting the term, and the nexus between the engagement and the organisation’s core functions. Employers who align their fixed-term contracts with these considerations are better placed to mitigate disputes and limit potential legal exposure.

The Finance Bill 2026, (“the Bill”) was tabled before the National Assembly on 30^th April 2026 and published on 5^th May 2026.

The Bill focuses more on compliance and incentives as well as expanding the tax base and strengthening collection of digital taxes. The Bill proposes measures that will bring into taxation income earned by non-resident landlords, withholding tax on betting & digital taxation. It also aims to reduce the deadline for filing tax returns to 30^th April each year, as opposed to 30^th June, as is currently the case.

INCOME TAX ACT 

The Finance Bill 2026 proposes to amend the Income Tax Act, Chapter 470, (ITA) as follows:

Definition Section

1.1 Immovable property

The Bill proposes to amend the definition of the term “immovable property” by removing the word “and” and replacing it with “or”.  This amendment clarifies that the two conditions set out therein are intended to operate independently and as alternative grounds for determining whether property qualifies as immovable property. Accordingly, it will now be sufficient if either condition is met.

 

1.2 Expanded definition of Management or Professional Fee

The Bill proposes to expand the definition of “management or professional fee” to include interchange fees and merchant service fees arising from transactions that use a card as a means of payment.

This proposed amendment is designed to expand definition of management or professional fees to include interchange fees and merchant fees accruing from card payments transactions. It is meant to remedy the ambiguity cited by the Supreme Court under section 2 of the Income Tax Act. It is largely influenced by the Supreme Court decision in the case of Barclays Bank of Kenya Limited (now Absa Bank Kenya plc) V Commissioner for Domestic Taxes (Large Taxpayers Office) where the Supreme Court held that interchange fees paid by an acquiring Bank to an Issuing bank cannot be classified as management or professional fees subject to withholding tax.

If this proposal sees the light of day, interchange fees paid by an acquiring bank to an issuing bank will be classified as management or professional fees subject to withholding tax. This will increase the cost of card-based transactions, likely to be passed on to merchants and consumers, thereby directly undermining Kenya’s cashless economy agenda.

 

1.3 Expanded Definition of Royalty

The Bill proposes to amend the ITA by expanding the definition of royalty. This proposal technically is tailored to broaden the tax base when it comes to the chargeability of Withholding tax on payment systems. Unlike the usual norm where royalty is charged on intellectual property (“IP”), the proposal intends to broaden the charge of royalty taxes on digital payment and processing processes.

It is highly likely that this proposal is informed by the recent Supreme Court decision in the case of Barclays Bank of Kenya Limited (now Absa Bank Kenya plc) V Commissioner for Domestic Taxes (Large Taxpayers Office) where the apex Court held that payments made by Acquiring Banks to Card Companies do not constitute royalties.

The proposal contradicts OECD Model Tax Convention Article 12 commentary, which limits “royalties” to payments for IP rights and not operational network access fees. Uganda and Tanzania exclude such payments from royalties; Kenya will be diverging from EAC practice. The proposal, if passed into law, will increase costs for fintechs, banks, and any business using digital payment infrastructure.

 

1.4 Proposed Definition of Withdrawals

The Bill proposes to amend the ITA by deleting the current definition of withdrawals and substituting it with a new definition. The definition is proposed to change from “withdrawn from a wallet” to “paid or disbursed to the account of a player.” This amendment also seeks to align the definition with the Gambling Control Act, 2025, which replaced the former Betting, Lotteries and Gaming Act.

If the proposed bill is passed it will widen the tax base on gambling payouts. Previously, only wallet withdrawals attracted the 5% withholding tax (“WHT”) under the Third Schedule. The new language captures any payment to a player thus closing the loophole where operators might structure payouts outside traditional wallets.

 

1.5 Proposed Definition of Winnings

The Bill proposes to introduce a new the definition of the term winnings as “a pay-out, by a person licensed under the Gambling Control Act, 2025, from a lottery or prize competition, but does not include the amount staked or wagered.”

Taxation of gambling winnings is not a novel idea; taxation of winnings was first introduced by the Finance Act 2011 which introduced 20% withholding tax on winnings. This proposal was, however, dropped and later re-introduced via the Finance Act 2014. However, there was an ambiguity on whether the withholding tax should be applied on the gross amount of a player winnings or net winnings.

Currently, there is blanket taxation in which a gambler’s and/or a player’s withdrawals also include the player’s own deposited funds, and not just net winnings. This proposal will therefore mitigate such blanket taxation of winnings in Kenya’s gambling industry.

 

On this World Book and Copyright Day 2026, the world will once again pause to celebrate the power of books as vehicles of knowledge, culture, entertainment and creative expression. Established by the United Nations Educational, Scientific and Cultural Organization (UNESCO), the day is a reminder of the essential role copyright plays in sustaining creativity and ensuring that authors can derive recognition and economic benefit from their works.

Celebrated every year on 23^rd April, the day highlights how books can connect people across cultures and generations. Beyond celebration, however, there is an important reality that is often overlooked: that books are not merely stories or sources of knowledge, but the product of someone’s time, effort and creativity i.e., the proverbial sweat of the author’s brow.

As the literary world becomes increasingly digital, the risks to authors have evolved just as rapidly. For instance, manuscripts are now created, shared and distributed in digital form within seconds, often before adequate legal safeguards are in place.

For Kenyan authors, this raises an important question: how can one truly own and protect a work in an environment where duplication and unauthorized circulation are so easily achieved?

 

The World Book Capital Initiative

Beyond the annual celebration, UNESCO also advances its mission through initiatives that promote reading and publishing at a city level. One such initiative is the designation of a World Book Capital.

Launched in 2001, the initiative recognizes cities that demonstrate a strong commitment to books, reading and the wider publishing ecosystem. Once designated, a city is expected to showcase its leadership in supporting creativity, promoting linguistic diversity and encouraging knowledge-sharing through books and storytelling.

Over the course of the year, the designated city implements a range of impactful activities aimed at strengthening the role of books in society, including promoting literacy, supporting authors and publishers, and expanding access to reading. These efforts are closely aligned with UNESCO’s broader mandate of using culture and education as tools for sustainable and inclusive development.

For a city to be eligible for designation, an application is submitted to UNESCO for review by its advisory committee, comprising one representative from UNESCO, the International Authors Forum, the International Federation of Library Associations and Institutions, the International Publishers Association and the European and International Booksellers Federation. The final designation is made by the Director-General of UNESCO, with attention given to ensuring geographic balance across regions over time.

For 2026, the designated World Book Capital is Rabat, Morocco, reflecting the city’s clear commitment to literary development, the empowerment of women and youth through reading and the fight against illiteracy, particularly among underserved communities.

 

How Kenyan Authors Can Protect Their Works

While global initiatives like the World Book Capital underscore the importance of books and reading, they also remind us that behind every book is an author, whose work deserves legal protection. For many Kenyan authors, the joy of finishing a manuscript is often followed by a quiet fear: will this work still be mine once it is published?

For Kenyan authors, safeguarding creative works requires both an understanding of legal rights and the adoption of practical measures of protection, particularly in a digital environment where content can be easily shared.

Set out below are some practical steps Kenyan authors can take to protect their works:

a) Register Your Work and Keep Clear Evidence of Creation

Although copyright protection in Kenya arises automatically once a literary work is created and fixed in a tangible form, authors are encouraged to formally document their ownership through registration on the National Rights Registry Portal (the “Registry”) managed by the Kenya Copyright Board (KECOBO) and available at nrr.copyright.go.ke.

This option is provided under section 22D of the Copyright Act (Cap. 130) Laws of Kenya, which allows authors of copyright works or an owner of copyright to register their works on the Registry. Registration strengthens proof of ownership and simplifies enforcement if infringement occurs.

The Registry is user-friendly and allows individuals or corporate entities to create accounts, submit their works and search the copyright database.

Once an application is submitted and reviewed, a copyright certificate is issued for the registered work. The certificate can then be downloaded using the email address provided at the time of creating the account. The certificate serves as a formal evidential record of copyright over the work and may be useful in the event of a dispute.

In addition to registration, authors are encouraged to keep clear supporting evidence of the creation of their works, including:

(i) dated drafts and revisions;
(ii) notes, outlines and earlier versions;
(iii) email trails or submissions showing timelines; and
(iv) secure storage with version history.

This evidence is often the practical proof of authorship and the creation timeline, and it can be relied upon in determining the outcome of disputes. It helps establish who created the work first, how it evolved over time, and whether any unauthorized copying has occurred.

 

b) Control How Your Work is Shared

In many cases, authors lose control of their work through how the work is shared. When circulating digital copies of their works, authors should be intentional not only about who receives the work, but also how the work is accessed and distributed.

Some practical approaches that can be used when sharing digital copies include:

(i)  limiting distribution to sample chapters before full release;
(ii)  controlling access to works shared in soft copy; and
(iii)  tracking who receives each version of a work.

In commercial contexts, authors may also:

(i)  offer paid digital downloads instead of free distribution;
(ii)  restrict the number of devices on which an eBook can be accessed; and
(iii)  use platform controls that limit copying, printing or forwarding.

These measures help authors retain both control and value over their digital works.

 

c) Use Digital Safeguards and Clear Licensing Terms

Beyond access control, authors should rely on both technology and legal terms to protect their work. With the rise of self-publishing, online literary platforms, and widespread sharing of PDF books on messaging applications, Kenyan authors face multiple risks of unauthorized circulation.

Some examples of digital safeguards include:

(i)  using passwords or encrypting works – this involves converting the files into unreadable formats that can only be accessed with a decryption key or password, thereby preventing unauthorized access;
(ii)  watermarking works – this involves embedding a visible or invisible identifier that helps identify ownership or track distribution;
(iii)  providing restricted access links to the works with expiry controls; and
(iv)  disabling downloads and the “copy-paste” function, preventing printing or sharing where platforms allow it.

An additional measure is setting clear licensing terms or usage conditions when sharing a work. These need not always take the form of formal legal agreements. Even simple written instructions can define how a work may be used, including whether the recipient may reproduce, distribute or adapt the context, and whether the use is limited to review purposes or extends to commercial use.

 

d) Recognize the Limits of Digital Protection and Act Quickly When Needed

Even where digital protection is in place, no system is fully secure. For instance, encrypted files may be bypassed and once accessed, content can still be copied, forwarded or shared.

For this reason, protection is ultimately about deterrence, control and enforceability. If unauthorized sharing occurs, authors should act quickly by preserving evidence, identifying the source, issuing takedown notices where appropriate, and taking steps to stop further distribution, including filing suits and obtaining injunctive orders if necessary.

 

Conclusion

In the end, books are more than just an aggregation of written words on a number of pages. Books carry thought, memory, imagination, style, wit, humour, language and identity and in doing so, they connect us across time and experience.

As Alberto Manguel notes, “Maybe this is why we read, and why in moments of darkness we return to books: to find words for what we already know.”

As we mark World Book and Copyright Day 2026, the message is clear. Celebrating books is not enough. Protecting the creative people behind them is just as important. In a digital age where ideas travel faster than ever, safeguarding creative work through copyright protection, among other practical control measures, is part of preserving the value of literature itself.

Running a business in Kenya today involves more than meeting sales’ targets or offering great products. With competition increasing across every sector, building a distinct identity is more important than ever before. A trademark plays a crucial role in defining a business’ identity and building its brand. It tells your customers who you are and what you stand for, even before they walk through your door or click on your website.

A strong trademark protects more than a name or a logo. It safeguards the trust and goodwill you have built with your customers. It also helps you grow into new markets, attract investment, and stand out in a crowded field.

Unfortunately, many business owners overlook the numerous benefits offered by pre-emptive trademark protection and only appreciate trademark protection after problems arise. They may choose names that are difficult to defend or, worse, already belong to someone else and are therefore not available for registration.

Understanding what makes a trademark strong and enforceable can help you make better choices early and avoid a painful, costly and taxing rebranding effort later.

 

Understanding Distinctiveness and Why It Matters

At the heart of a strong trademark lies one essential quality: distinctiveness. Trademark law in Kenya, like in many other jurisdictions, protects marks that set your brand apart from others. Distinctive marks are easier to register and much easier to defend.

The High Court, in the case of Sony Holdings Limited v Sony Corpo-ration [2018] eKLR, held that the respondent had failed to prove that “SONY” was a well-known trademark in Kenya. Upholding the Registrar’s decision, the Court stressed that perception cannot be relied upon without evidence, affirming the principle that he who alleges must prove. Global reputation must be demonstrated with evidence of local market evidence.

There are five (5) general categories of distinctiveness, each with different legal and commercial implications.

The strongest marks fall under the fanciful category. These are invented words that serve no purpose other than to identify your brand. Examples such as Kodak or Xerox have no meaning outside their trademark context. Because they are entirely original, fanciful marks enjoy the highest level of protection.

Next are arbitrary marks. These are real words that have no connection to the products or services they represent. For example, using the word “Safari” for a web browser or “Apple” for electronics adds uniqueness by placing familiar terms in unrelated categories. These marks are also highly protectable.

Suggestive marks sit somewhere in the middle. They hint at what a product or service does, without describing it directly. Netflix, for instance, suggests entertainment content delivered online but does not explain it in literal terms. Suggestive marks often pass the registrability test without too much difficulty and enjoy a fair degree of protection.

Descriptive marks fall into a weaker category. They explain what the product or service does. Think of a grocery shop called “Fresh Groceries”, or a food business named “Healthy Snacks”. These marks usually face hurdles during registration unless the applicant proves that the public now associates the term specifically with their business. That kind of recognition takes time and consistent branding.

Finally, generic terms do not receive protection at all. Words such as “bread” for a bakery or “shoes” for a footwear store are too common to belong to any one business. Using generic terms as trademarks is not only risky but also wasteful.

 

Choosing a Trademark That Works for the Long Term

When choosing a trademark, aim to strike a balance between creativity, clarity, and legal strength. The process should be deliberate. You are not just naming a product or service. You are defining how your audience will remember you and how the law will safeguard you.

Start by focusing on marks that fall under the fanciful, arbitrary, or suggestive categories. These offer the strongest foundation for brand protection. Avoid marks that simply describe what you do. Although they may seem appealing from a marketing standpoint, they rarely hold up under legal scrutiny.

Before settling on a name, carry out a proper search. Check the trademark register at the Kenya Industrial Property Institute (KIPI), which is the body tasked with administering and implementing intellectual property rights in Kenya. Look through do-main name registries, social media handles, and existing business name listings. This helps prevent conflicts and reduces the risk of investing in a name that is already taken.

A simple, brief, preliminary search can uncover potential pitfalls that may not be immediately obvious when considering the mark. For instance, the search may uncover prior common-law use of the mark or unregistered marks with established goodwill. This seemingly small investment in a preliminary search could save you years of brand confusion, litigation and forced rebranding.

Think also about the future of your business. Avoid names that tie you too closely to your initial product or service. For example, a name like Nairobi Car Hire may limit your options if you decide to branch into logistics, courier services, or real estate. Broader or more abstract names allow room for expansion.

Lastly, be mindful of Kenya’s legal and cultural landscape. Section 12 of the Trade Marks Act prohibits the registration of marks that are offensive, misleading, or culturally inappropriate. Kenya’s diversity means that something acceptable in one context may raise objections in another. Take the time to test your mark across different communities or customer groups.

 

The Value of a Well-Chosen Trademark

The fortitude of a trademark is considered not only by its conceptual distinctiveness, but also by how the mark performs under judicial analysis on the possibility of occurrence of consumer confusion in the market. A multitude of jurisprudence, both internationally and locally, illustrate the practical implications of choosing and registering a strong versus a weak mark.

From a common law perspective, the United Kingdom case of Morning Star Cooperative Society v. Express Newspapers Ltd. [1979] FSR 113 (the Morning Star Case), considered whether an applicant socialist newspaper registered as a proprietor of the registered mark “Morning Star” could successfully object to the use of the same name by a commercial tabloid. The Court ultimately rejected the claim, finding, inter alia, that the target audience for the publications were so fundamentally different that no confusion was likely to arise.

From an enforcement perspective, distinct trademarks are easier to defend. If a competitor tries to copy a unique mark, the legal path to stopping them is clearer. Generic or descriptive marks, on the other hand, leave you exposed. Even if a rival creates confusion, it may be difficult to assert your right to the mark if the mark is not distinctive.

The Morning Star Case highlights that similarity of marks alone is insufficient to establish the risk of confusion in the marketplace. The Court in the Morning Star Case determined that likelihood of confusion must be evaluated in light of the goods or services offered and the target market. It is therefore imperative to note that even if a mark seems unique, its enforceability is tested against real-world perceptions and associations with the mark.

In contrast to the foregoing decision, the Court in the case of Strategic Industries Limited v. Strategic Industries (K) Ltd. [2020] eKLR found that the use of a nearly identical name by the Defendant was likely to mislead the public and dilute the value of the Claimant’s brand. In reaching their determination, the Court emphasised the importance of the “first-to-register” principles and highlighted the commercial prejudice that would be borne by proprietors of registered trademarks if business owners failed to conduct the relevant searches of the Trademarks Register ahead of pursuing the registration of their trademark.

The foregoing decisions also serve to underscore the message that a strong, registered trademark is not merely a badge of origin, but a critical defence against commercial impersonation.

A strong trademark offers benefits that go beyond registration. It builds confidence in your brand and adds value to your business. Investors and partners often view registered trademarks as indicators of professionalism and long-term thinking.

From an enforcement perspective, distinct trademarks are easier to defend. If a competitor tries to copy a unique mark, the legal path to stopping them is clearer. Generic or descriptive marks, on the other hand, leave you exposed. Even if a rival creates confusion, it may be difficult to assert your right to the mark if the mark is not distinctive.

Trademarks also influence how customers perceive your business. A strong, consistent brand identity fosters trust and encourages loyalty. Customers are more likely to return to a brand that appears stable and well-established. A good trademark signals that your business is serious, credible, and here for the long haul.

 

Final Thoughts

Selecting a trademark may not feel like a high-stakes decision at first. But in reality, it shapes how your business will grow, protect its interests, and position itself in the market. The right mark creates a foundation for future success. The wrong one could lead to costly disputes and missed opportunities in an increasingly competitive world.

Take the time to learn what works. Choose marks that offer both creative appeal and legal strength. Think long term, and whenever possible, seek professional guidance.

Your trademark is not just a name. It is your business’ promise, brand, identity, and most valuable intangible asset. Make it count.