Category: News

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.

The Data Protection Act, (Cap. 411C), Laws of Kenya (the Data Protection Act), under Section 41, requires data controllers and processors (data handlers) to implement appropriate organisational and technical safeguards to protect the right to privacy. This obligation is known as data protection by design and by default. “By design” connotes that data protection principles should be considered from the outset when developing any data processing activity, while “by default” means the highest privacy standards apply automatically to all such activities.

Data protection by design and by default may involve conducting a Data Protection Impact Assessment (DPIA) to identify and mitigate risks associated with a processing activity. It may also entail assessing whether appropriate measures exist before transferring personal data to another jurisdiction, or whether consent obtained from data subjects meets the threshold under the Data Protection Act. Overall, data protection by design and by default ensures that data handlers achieve their objectives in the least privacy-intrusive way possible.

Enter the now infamous Worldcoin Project fiasco, which propelled concerns about data protection in Kenya into a frenzy. The Applicants in Republic v. Tools for Humanity Corporation (US) & 8 others; Katiba Institute & 4 others (Ex parte Applicants); Data Privacy & Governance Society of Kenya (Interested Party) [2025] eKLR applied for judicial review Orders to prohibit the data handlers therein from processing biometric personal data collected from Kenyan citizens without conducting a DPIA or from obtaining consent through financial inducement.

In its Judgment, the High Court considered the place of DPIAs in the data processing activities and the effect of offering financial incentives to obtain consent from data subjects.

In seeking to persuade the Court, the Applicants argued, first, that the 1^st – 5^th Respondents had processed biometric personal data without conducting an adequate DPIA. Second, they contended that although the said Respondents had obtained consent from data subjects, such consent was induced through financial incentives in the form of cryptocurrency tokens. Finally, they argued that the cross-border data transfers by 1^st – 5^th Respondents were contrary to the procedures prescribed under the Data Protection Act and its subsidiary legislation.

 

Implications of the Judgment to Data Handlers

1. When should a data handler conduct a DPIA?

   The Court was tasked with determining whether the 1st – 5th Respondents were required to conduct a DPIA under Section 31 of the Data Protection Act, following their decision to process the biometric details of data subjects, that is, their iris and facial scans, which constitute sensitive personal data requiring a higher degree of protection due to their very nature. The Court found that the 1st – 5th Respondents had not carried out a DPIA prior to processing the biometric personal data, in contravention of the Data Protection Act. Consequently, the Court, inter alia, prohibited any further processing of biometric personal data collected in Kenya for the Worldcoin Project without first undertaking a DPIA.It is noteworthy that the Office of the Data Protection Commissioner (ODPC), in its Guidance Note on DPIAs (the DPIA Guidance Note), describes a DPIA as an accountability tool that enables data handlers to identify, assess, and mitigate risks to the rights and freedoms of data subjects during data processing activities. This begs the question, what constitutes an adequate DPIA, and when should a data handler carry out one?

   Section 31 of the Data Protection Act and regulation 49 of the Data Protection (General) Regulations provide a checklist that data handlers should consider when assessing whether to carry out a DPIA. For any data processing exercise that is likely to pose a high risk to the rights and freedoms of data subjects, a data handler is required to conduct a DPIA and submit a DPIA report sixty (60) days before processing personal data.

   Additionally, regulation 49 of the Data Protection (General) Regulations exhaustively enumerates high-risk instances in which a data handler is required to conduct a DPIA. Some of these high-risk instances include where – a) personal data collected on a large-scale is used for a purpose different from the original purpose; b) biometric or genetic data is processed; and c) there is large scale processing of personal data.

   DPIAs, therefore, enable data handlers to assess whether a data processing activity poses high-level risks to data subjects and to determine the safeguards necessary to mitigate such risks.

   In delving deeper into what constitutes an adequate DPIA, we refer to the DPIA Guidance Note for further direction. The DPIA Guidance Note provides that, for a DPIA to meet the minimum requirements of the Data Protection Act and its subsidiary legislation, it must address the amount of personal data processed; the extent of processing; the storage and accessibility of the personal data; the state of technological development available for processing; the specific risks attendant to the processing of personal data; a systematic description of the intended processing operations; the purpose of processing; the necessity and proportionality of the processing operations; the risks to the rights and freedoms of data subjects; the measures envisaged to address the identified risks; and the safe guards implemented to ensure the protection of personal data.

2. Can a data handler incentivise a data subject to give their consent?

   The Court determined that offering cryptocurrency tokens in exchange for biometric personal data cast an aspersion on whether the consent obtained from the data subjects was valid. The Court observed that, “The use of cryptocurrency tokens to gather personal data is, in my humble view, an attempt to bypass the spirit of data protection laws by using incentives to sidestep the true essence of informed consent by luring desperate and poor Kenyans with cryptocurrency to kens.”

   Regarded as the cornerstone of data protection, consent must be express, unequivocal, freely given, specific, and an informed indication of the data subject’s wishes. It should be expressed through a statement or a clear affirmative action, signifying agreement to the processing of personal data relating to that data subject.

   In examining the Worldcoin Project case, we are of the considered view that the consent sought by the 1st – 5th Respondents was invalid, not only for the reason cited by the Court, that is, that the data subjects were not informed of the data processing activity, but also because the data subjects were not given a free choice to agree to the processing. In its Guidance Note on Consent, the ODPC stipulates that, for a data handler to satisfy the element of “free” choice, a data subject must have real choice and control over their personal data, with the liberty to withdraw consent at any time. The Guidance Note on Consent provides that a data subject must not feel compelled to give consent or fear negative consequences should they exercise their right of withdrawal. In the Worldcoin Project case, it is arguable that, since the data subjects were offered a financial incentive of approximately KES 7,000 (USD 50) in cryptocurrency for their personal data, they may have felt constrained from withdrawing their consent for fear of being asked to refund the cryptocurrency.

3. What must a data handler comply with prior to transferring personal data to another jurisdiction?

   This decision reinforces the need for data handlers to ensure that cross-border transfers of personal data comply with the provisions of the Data Protection Act and its subsidiary legislation. The Court determined that the 1st – 5th Respondents transferred personal data outside Kenya without adhering to the requirements under Section 48 of the Data Protection Act and Part VII of the Data Protection (General) Regulations, which outline the conditions under which personal data may be transferred outside Kenya.

   Before effecting a cross-border transfer of personal data, the trans fer must be based on

• Appropriate safeguards, i.e., a binding legal instrument with the recipient or upon an assessment of the transfer exercise.
• Adequate decision from the ODPC, which has been afforded wide latitude to determine whether the recipient country has adequate data protection measures.
• Necessity – that the cross-border transfer is necessary to achieve the purposes outlined under Section 48 of the Data Protection Act, including the performance of a contract between the data subject and the data handler.
• Consent – in the absence of appropriate safeguards adopted by the recipient, an adequacy decision, or necessity, the Data Protection (General) Regulations prescribe that a data subject may give their consent to the transfer upon being duly informed of the risks associated with such a transfer to their personal data

 

Conclusion

This Judgment rings true to the growing need to create a privacy-centric culture, one where data protection is by design and by default. While the Judgment underscored key areas of data protection compliance, particularly the importance of carrying out a DPIA where necessary, what amounts to valid consent, and the lawful bases for cross-border transfers, it ultimately serves as a clarion call to entities engaged in data processing activities to build with privacy compliance, not breach, in mind.

Kenya has made significant progress in protecting and promoting the rights of Persons with Disabilities (PWDs) by enacting the Persons with Disabilities Act No. 4 of 2025 (the New Act), which replaces the Persons with Disabilities Act, 2003 (the Repealed Act). Although the Repealed Act was viewed as a milestone at the time, the Act failed to ensure complete inclusion for PWDs, effective enforcement and conformity with the Constitution of Kenya, 2010 (the Constitution), as well as relevant International Human Rights standards like the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD).

Therefore, the New Act represents a shift from a welfare-driven, charity-focused model to a rights-based approach that empowers PWDs and emphasises dignity, equality, and participation.

Background and Justification for the New Act

The Repealed Act was Kenya’s initial attempt at establishing a legal framework for PWDs’ rights. The Repealed Act was based, however, on the medical and charity models of disability, in which disability was addressed as an individual’s tragedy or a medical issue that needed to be cured, and PWDs as passive recipients of state assistance.

Such matters as effective legal remedies and enforcement were lacking under the Repealed Act. Discrimination in areas like education, employment, and public services went unpunished, allowing institutions to disregard inclusion without consequences. For instance, employers were merely encouraged, not obligated, to hire PWDs. Public facilities remained inaccessible, and segregated schools were favoured over inclusive education systems, which perpetuated marginalisation.

Symbolic compliance in relation to matters touching on PWDs was common: laws existed, yet they were not enforced or put into action. Public buildings sometimes erected ramps or signals but did not go further to make fundamental alterations, like offering tactile routes, lifts, or accessible lavatories. Civic participation was also limited, as many PWDs could not vote independently due to a lack of accessible voting materials. These shortcomings, together with the civil society and PWDs’ lobbying efforts, gave the impetus for a new, enforceable, and participatory piece of law.

Key Reforms in the New Act

Introduced in 2023 and enacted in May 2025, the New Act aligns with Kenya’s constitutional values and international commitments.

At its core, the New Act promotes a rights-based approach to disability. It guarantees legal capacity, prohibits discrimination and demands reasonable accommodation across areas such as education, employment, healthcare, public services and civic participation. Additionally, the New Act establishes penalties and accountability measures for enforcement.

In education, the law mandates inclusive learning instead of segregated special schools. Children with disabilities must be admitted to mainstream schools with suitable support systems, like individual learning plans, trained teachers and assistive devices. This inclusion helps children grow up in a diverse environment and prepares them for full participation in society in the future.

Employers are legally required to provide reasonable accommodation and take proactive steps to ensure equal opportunities for PWDs. Additionally, vocational training and financial grants are available to support economic empowerment.

The Act requires all public buildings, transport systems, and digital platforms to comply with accessibility standards. Institutions that do not comply face penalties, while the National Council for Persons with Disabilities is authorised to conduct audits and issue sanctions.

In a notable enhancement, Section 22 of the New Act specifically prohibits an employee’s dismissal or demotion for having or acquiring a disability. Employers must thus implement suitable accommodation for employees who acquire disability during their tenure, which may include considering redeployment to an alternative role that suits their needs. This provision should be read alongside the provisions of Sections 41 and 45 of the Employment Act, (Cap. 226) of the Laws of Kenya (the Employment Act), which set out the requirements for procedural and substantive fairness in all employment terminations.

While the Employment Act allows termination on medical grounds if due process is followed and the employee is proven medically un f it, the New Act introduces an additional requirement: that employers must consider reasonable accommodation and possible redeployment when determining substantive fairness. It places a greater burden on employers to demonstrate that all possible accommodations were considered and exhausted before termination can be justified on grounds of disability. This marks a significant shift from the previous Act, as employers must now proactively work to retain an employee with disabilities rather than simply proving their medical incapacity. In aligning with these new requirements, employers can foster a more inclusive and supportive workplace for all.

Further, the New Act focuses on the Medical, Social and Human Rights models. The Medical Model within the New Act manifests itself in the provisions relating to health and rehabilitation. The New Act recognises that some individuals with disabilities need specialised medical care and support. Therefore, the New Act mandates access to healthcare services, assistive devices and rehabilitation programs, acknowledging that these are crucial for enhancing a person’s functional capacity. While not the only focus, this aspect of the New Act ensures the physical and mental well-being of PWDs remains a central consideration, providing a foundation for their independence and quality of life.

On the other hand, the Social Model in the New Act moves focus from an individual’s impairment to the societal barriers that contribute to disability. The Act imposes concrete legal obligations to eliminate these barriers. For instance, Section 30 of the New Act requires all public infrastructure, including buildings and transportation, to be accessible to all persons, including PWDs. It also requires inclusive education systems that provide reasonable accommodation for PWDs.

Finally, the Human Rights Model in the New Act views PWDs as rights-holders with inherent human dignity, equality and autonomy, as opposed to objects of charity or medical treatment. The New Act provides legal remedies and penalties for violations of PWDs’ rights. The New Act also safeguards PWDs’ rights to independent living and legal capacity.

The New Act, anchoring on the three (3) models already discussed, defines a broad range of rights that impact various aspects of life for PWDs. Some of these rights include the Right to Equality and Non-Discrimination; Right to Inclusive Education; Right to Health; Right to Work and Employment; Right to Family Life and Privacy; Protection from Abuse and Exploitation (abuse is criminalized and institutions must implement safeguarding policies); Right to Accessibility and Right to Participate in Public and Political Life (PWDs have the right to vote, run for office and take part in public decision-making).

 

Special Rights for Children with Disabilities

The New Act includes vital protections and services for children with disabilities summarised as follows:

• Early Identification and Intervention: Requires early screening and diagnosis to ensure timely support.
• Family Support Services: Offers counselling, respite care and training for parents.
• Inclusive Play and Recreation: Public play areas and recreation facilities must accommodate children with disabilities.
• Protection from Institutionalisation: Children should grow up in family settings unless institutional care is absolutely necessary.
• Participation in Decision-making: Children with disabilities have the right to be heard on matters affecting their lives.

 

Potential Challenges to Parents, Caregivers and Society in General

A successful implementation of the New Act will require overcoming several key challenges, which include:

• Limited Awareness: Many parents and caregivers do not know about the rights and services available under the New Act, particularly in rural areas.
• Bureaucratic Hurdles: Accessing services may involve complex paperwork and unclear procedures, which can dissuade families from seeking help.
• Infrastructure Gaps: Schools, health facilities and transport systems may not yet be fully accessible or properly resourced.
• Cultural Stigma: Deep-rooted social attitudes may continue to marginalise PWDs and discourage families from seeking assistance.
• Weak Enforcement: Despite strong provisions, there are concerns about the capacity of enforcement bodies.
• Confusion during Transition: The shift from the Repealed Act to the New Act may create uncertainty for institutions and caregivers.

 

Recommendations for Overcoming Challenges

To assist parents, caregivers, and the wider society in addressing these challenges, we consider the following key steps essential for the effective and comprehensive implementation of the New Act:

• Awareness Campaigns: Use mass media and public forums to educate the general public on the New Act.
• Investment in Inclusive Infrastructure: The Government should allocate a budget for accessible schools, hospitals and transport.
• Combating stigma: Promote positive portrayals of PWDs in the media and incorporate disability rights in school curricula.
• Strengthen Enforcement: Empower the National Council for Persons with Disabilities to audit, monitor and penalise non-compliance.
• Guide the Transition: Provide training and clear instructions to caregivers, service providers, and institutions.

 

Conclusion

The New Act signifies a major step in Kenya’s dedication to the rights and dignity of PWDs. In shifting from a welfare model to a strong, enforceable, and rights-based framework, the New Act creates groundwork for a more inclusive society.

With respect to parents and caregivers of PWDs, the New Act brings with it new hope and tools for securing a better future for their children. The success of the New Act is, however, anchored on mutual responsibility, creating awareness, government action and ongoing advocacy by and on behalf of PWDs.

 

Climate finance lies at the intersection of two critical global challenges – climate change and sustainable development. While the urgency for climate action continues to grow, the financial systems meant to support this transition are evolving but remain far from adequate.

The Nationally Determined Contributions (NDCs) under the Paris Agreement, climate risk assessments, and national development plans have increasingly become a priority to States and entities. As such, they are now driving sustainable and green infrastructure finance to meet national climate objectives. That notwithstanding, this approach faces its fair share of challenges.

This gap highlights not only inadequate capital allocation to climate finance, but also the institutional and structural barriers, such as regulatory shortcomings, limited project readiness, insufficient data and the general perception of high risk by investors. For private investors and lenders, recognising these constraints is imperative to mitigating risks and exploring innovative financing structures that can unlock value in green projects.

For instance, blended finance, which combines public, philanthropic, or concessional capital with private investment, has shown promise in reducing risk and attracting commercial investors. Instruments such as green bonds, sustainability-linked loans, and carbon credit mechanisms are increasingly being deployed to mobilise capital toward climate-related initiatives.

 

Evolving Landscape of Green Finance

Green finance has advanced significantly in recent years, moving from a fringe interest to a core element of global financial markets.

Institutional investors are increasingly integrating environmental, social, and governance (ESG) factors into their investment decisions to meet the sustainability and regulatory quota.

Key instruments, including green bonds, which finance projects with clear environmental benefits; sustainability-linked loans, where interest rates are tied to achieving sustainability performance targets; blue finance, which targets marine conservation and sustainable use of ocean resources; and resilience bonds, designed to fund climate adaptation and disaster risk reduction, have introduced new facets to green finance.

Technological innovations such as blockchain and fintech platforms are also beginning to revolutionise the accessibility, traceability, and transparency of green finance, especially for small-scale or community-led projects.

Additionally, taxonomies and verification frameworks have increasingly become standard practice, with frameworks such as the EU Green Taxonomy, the International Capital Market Association (ICMA) principles, and, closer home, the Kenya Green Finance Taxonomy are growing investor confidence and mainstreaming green finance.

 

Policy Frameworks and the Role of Climate Finance

Various factors impact the success of a climate finance project. However, one of the key hallmarks of an effective climate finance structure rests on the foundation of clear and comprehensive legal, regulatory, and policy frameworks. Kenya has established fundamental regulatory frameworks and policies to support climate project finance. These include:

1. i) The Constitution of Kenya, 2010, which guarantees every citizen the right to a clean and healthy environment, the foundation for environmental sustainability and climate action. Furthermore, it enshrines key principles such as transparency, accountability, prudent use, and equitable distribution of resources, which are essential for participatory resource management, financing of green projects, and sustainable infrastructure.
2. ii) The Public Private Partnerships Act, CAP 430, Laws of Kenya, which provides the framework for the financing, construction, development, operation, and maintenance of infrastructure or development projects where projects require the structured collaboration of government and private investors. It also establishes a structured process for risk allocation and financing mechanisms, all of which are crucial for infrastructure and green projects.

iii) The Movable Property Security Rights Act, CAP 499A, Laws of Kenya (the MPSRA), which establishes the legal framework for securing financing through movable assets, offering an alternative to immovable property-backed financing. The MPSRA also prescribes a comprehensive mechanism for the enforcement of security rights in favour of a creditor, thereby strengthening access to finance; and

1. iv) The Insolvency Act, CAP 53, Laws of Kenya, which outlines processes for efficient and equitable administration of entities or natural persons in financial distress, aiming to secure better outcomes for lenders and investors. In the context of climate finance, investors and stakeholders in sustainable finance ventures are more confident about their long-term commitments, noting that risks and losses can be mitigated through insolvency procedures.

Collectively, these statutes create a solid foundation for secure and transparent project financing in Kenya.

 

Regional and Continental Trends in Climate Finance

Regionally, the African Continental Free Trade Area (AfCFTA), together with Africa’s broader climate objectives, is promoting cross-border climate investment and facilitating new opportunities. However, this development has also introduced multi-jurisdictional regulatory complexities that require particular expertise to navigate disparate national policies effectively.

Within sub-Saharan Africa, and particularly in Kenya, climate finance is evolving in response to localised needs and emerging regional frameworks. Kenya has made significant strides, with strong legal and political commitment embodied in legislation such as the Climate Change Act, CAP 387A, Laws of Kenya, which has provided an overarching statutory framework for the development, regulation, and implementation of mechanisms geared towards enhancing the country’s climate resilience and carbon market development.

To complement this, Kenya also developed the Kenya National Adaptation Plan (2015-2030) and the broader strategic frameworks aligned with the Vision 2030 blueprint. Collectively, these frameworks have embedded climate change mitigation and adaptation within the national development agenda, fostering an enabling environment to mobilise climate finance resources targeting Kenya’s unique vulnerabilities and enhancing climate resilience for sustainable economic growth.

Further, the launch of the Kenya Green Finance Taxonomy (KGFT) and climate risk disclosure frameworks marks a major milestone in Kenya’s green finance architecture. The KGFT has provided a comprehensive classification system designed to standardise and define the financial activities in alignment with Kenya’s environmental and development objectives. It classifies environmentally sustainable economic activities to guide investment decisions, combat greenwashing by ensuring transparency and accountability, and align the financial flows with Kenya’s NDCs. In doing so, it boosts investor confidence and attracts both domestic and international capital towards the achievement of a climate-resilient economy.

In many developing countries, including Kenya, challenges such as underdeveloped capital markets and limited institutional capacity can hinder the flow of private capital. However, through the ongoing alignment of legislation and policy, Kenya is creating an environment that supports both conventional and green project finance, which will unlock funding streams that advance sustainable priorities.

The KGFT has exemplified the efforts to standardise definitions and reporting, thereby enhancing transparency and boosting investor confidence; trends we believe shall influence risk profiles and structuring considerations in future green deals.

 

Strategic Imperatives to Navigate Climate Finance

Stakeholders engaged in climate finance transactions must adopt a holistic approach to mitigate the risks commonly associated with such investments. First, rigorous due diligence must be undertaken at the outset to identify potential regulatory, environmental and technical risks. These may include issues such as uncertain land tenure, weak institutional governance, or technological feasibility.

Contracts and supporting documentation must be precisely structured to account for the allocation of risk and liability among stakeholders, especially in cases of project failure, cost overruns, or force majeure events. Moreover, the covenants, obligations of the respective parties, and remedies available in the event of default should be clearly highlighted. The incorporation of binding ESG performance covenants relating to the project should also be carefully considered and critically outlined.

Parties seeking to engage local or international actors in financing and implementation of green projects should effectively negotiate and evaluate co-investment strategies, including guarantees, to mitigate risk perception and enhance project bankability.

Overall, embedding integrated strategic measures and regulatory parameters into green project financing will safeguard investor confidence, unlock climate capital, and create long-term value for communities and stakeholders.

 

Conclusion

The challenge of climate finance is multidimensional, involving regulatory gaps, capital markets, policy design, institutional capacity, and social equity concerns. Yet, in the midst of these challenges lies a profound opportunity to reimagine development in a way that is sustainable, inclusive, and resilient.

In many developing countries, including Kenya, challenges such as underdeveloped capital markets and limited institutional capacity can hinder the flow of private capital. However, through the ongoing alignment of legislation and policy, Kenya is creating an environment that supports both conventional and green project finance, which will unlock funding streams that advance sustainable priorities.

Addressing these challenges requires coherence across institutions, innovation in financial structures, and trust among stakeholders. A robust ecosystem – comprising national governments, development finance institutions (DFIs), financial institutions, public benefit organisations, and academia – is essential to designing, funding, and implementing impactful climate projects.

With the right strategies, tools, and partnerships in place, climate finance can become a powerful engine for transformation – driving the world not only toward net-zero emissions but also toward a future that is just, prosperous, and resilient for all.

On 4^th December 2025, the COMESA Council of Ministers approved and adopted the COMESA Competition and Consumer Protection Regulations, 2025 (the “Regulations”) and the COMESA Competition and Consumer Protection Rules, 2025 (the “Rules”). The Regulations and the Rules took effect on 5^th December 2025, repealing and replacing the previous COMESA Competition Regulations and the Rules from 2004. The Regulations and the Rules introduce significant reforms to the competition regime, including updated procedures and substantive provisions governing competition enforcement and merger control within COMESA.

Revised Jurisdiction and Filing Requirements

The Regulations and the Rules have introduced much-needed clarity to the merger notification process. Regulation 42 provides that all notifications to the COMESA Competition Commission (the “Commission”) shall be made in the form and manner determined by the Commission. Rule 21 builds on the foregoing Regulation by providing that merger notifications must be submitted jointly by the parties, or, in the case of acquiring a controlling interest, by the acquiring party alone.

The Regulations and the Rules also expand the information required in filings. Parties must now provide their annual turnover in the common market, details of their activities, including the number of active users or subscribers and the type of data collected and processed, a summary of the merger and its rationale, and a list of the member states affected. These enhancements reflect the Commission’s stronger focus on evaluating the competitive and regional impact of mergers, including transactions in digital and data-driven markets.

 

Merger Notification Fees

Rule 22 introduces a revised and differentiated approach to merger notification fees, marking a clear departure from the previous framework.

Under the amended regime, the notification of a merger must now be accompanied by a fee calculated at 0.1% of the combined annual turnover or the combined value of assets in the common market, whichever is higher, subject to a maximum cap of COMESA Dollar Three Hundred Thousand (COM$300,000). This represents a material increase from the former flat fee structure.

In addition, and for the first time, the Regulations expressly provide for digital market transactions, requiring that the notification of a digital market merger be accompanied by a fee calculated at 0.05% of the transaction value, also subject to a cap of COM$300,000. This development reflects a further evolution of the Commission’s regulatory approach by expressly bringing high-value, structured digital transactions within its merger control framework.

 

Notification Threshold

Regulation 41, as read together with Rule 23, sets out the new notification threshold for a merger. According to the Regulations and the Rules, a merger is notifiable only where the combined annual turnover or combined value of assets of all parties in the common market, whichever is higher, equals or exceeds COMESA Dollar Sixty Million (COM$60 million) and where the annual turnover or value of assets of at least two of the merging parties in the Common Market, whichever is higher, equals or exceeds COMESA Dollar Ten Million (COM$10 million). For the digital market mergers, however, the merger is notifiable where the transaction value equals or exceeds COMESA Dollar Two Hundred and Fifty Million (COM$ 250 million).

From the above, it is arguable that the spirit behind this new provision is to not only target transactions that are economically significant at a regional level but also to strengthen oversight on digital and innovation-driven markets.

 

Decision on application made to the Commission

While the Regulations and the Rules have retained the prescribed timeframe within which the Commission must make a determination on merger applications, namely 120 days, they introduce important clarity as to when the period commences. Specifically, the review period begins to run only from the date on which the Commission receives a complete application. Where an application is incomplete, the review period is effectively suspended. In this regard, Regulation 44, as read together with Rule 21, clarifies that the statutory clock begins to run only once a complete notification has been submitted.

This clarification is significant. From an administrative and procedural standpoint, it ensures that merger applications are assessed on the basis of complete and accurate information, thereby reducing the risk of decisions being made on incomplete records. However, it is also important to consider the potential practical drawbacks of this approach. For example, where an application is submitted, and the Commission takes an extended period to notify the applicant that the filing is incomplete, the review process may be prolonged beyond what is reasonably necessary. In such circumstances, the absence of clear timelines for the Commission to confirm completeness could introduce uncertainty for parties and undermine transactional certainty, particularly in time-sensitive transactions.

 

Advisory Opinions

The Regulations expressly empower the Commission to issue advisory opinions, including in relation to mergers. In particular, Regulation 9(4)(e) empowers the Commission to provide advisory opinions, including opinions on whether a proposed transaction meets the applicable notification thresholds and is therefore notifiable.

 

Conclusion

The Regulations and the Rules, amongst other things, represent a significant evolution in the COMESA merger control framework. It achieves this by clarifying jurisdiction, expanding filing requirements, introducing differentiated fee structures for both traditional and digital market transactions, and establishing clear thresholds and review timelines. Because of the foregoing developments, the Regulations have provided a greater predictability for businesses and enhanced oversight for the Commission. Notably, the inclusion of digital market transactions reflects a modernised approach that captures mergers and acquisitions in the digital and data-driven economy.

These reforms enhance procedural certainty, promote transparency, and equip the Commission with the necessary tools to assess and regulate mergers effectively across the Common Market. Businesses undertaking mergers and acquisitions under COMESA jurisdiction must therefore ensure strict compliance with the Regulations to avoid potential penalties, including failure to notify, submission of inaccurate information, or premature implementation of transactions.

The landscape of global trade is undergoing profound transformation, and Africa is steadily positioning itself as a decisive player in shaping the future of economic integration. Central to this shift is the African Continental Free Trade Area (AfCFTA), an unprecedented project to forge a unified market of 55 member states. By as piring to dismantle tariff and non-tariff barriers, harmonise customs procedures, and establish a rules-based trading system, the AfCFTA promises to catalyse industrialisation, boost intra-African trade, and build critical resilience against global economic shocks. However, this pursuit of pan-African integration does not begin on a blank slate. It is layered upon a complex mosaic of pre-existing regional blocs, among which the East African Community (EAC) stands as a particularly advanced and relevant example, boasting a functional Customs Union and a Common Market Protocol.

The parallel existence of these two frameworks, the continental ambition of the AfCFTA and the deeply integrated regional regime of the EAC, creates a critical juncture in trade governance. While founded on similar aspirations, they are not always perfectly congruent. For nations like Kenya and Tanzania, which are members of both agreements, this duality generates a complex web of overlap ping and sometimes contradictory obligations. This article examines the specific tensions that arise from this interplay, analysing the legal and practical dissonance between the two systems and the challenges these conflicts pose.

The EAC Customs Union versus AfCFTA Tariff Liberalisation

The EAC Customs Union Protocol of 2005 established the cornerstone of regional trade by creating a regime of duty-free movement for originating goods among partner states and instituting a Common External Tariff (CET) applied uniformly to imports from outside the bloc. This is not a voluntary guideline but a firm legal obligation; as Article 2(4)(c) of the Protocol expressly states, within member states, “a common external tariff in respect of all goods imported into the Partner States from foreign countries shall be established and maintained.” This commitment is further reinforced by Article 12, which obliges partner states to implement this common tariff on goods from third parties. The current CET, revised in 2022, operationalises this through a structured system of four tariff bands: 0%, 10%, 25%, and 35% on sensitive items.

The AfCFTA Agreement, in contrast, creates a fundamentally different framework. Under Article 2 of the Protocol on Trade in Goods, it mandates the “progressive elimination of tariffs and non-tariff barriers” among all state parties, with a commitment to progressively liberalise at least 90% of tariff lines. The contradiction is that the EAC requires its members to apply a uniform CET to all non-EAC imports, whereas the AfCFTA promotes the elimination of such tariffs between African nations. This creates an impossible compliance dilemma for a member state. If Kenya agrees under an AfCFTA arrangement to reduce tariffs on certain textile imports from West Africa, it simultaneously violates the EAC mandate. In practice, this leaves traders in a state of profound uncertainty.

Rules of Origin: Complementarity in Principle, Contradiction in Practice

Rules of Origin are the critical laws, regulations, and administrative procedures that determine a product’s country of origin, thereby governing its eligibility for preferential trade terms. The East African Rules of Origin (EARoO), which are detailed in Annex III of the Protocol, function as the gatekeeper for the customs union, with their strict nature designed to prevent trade deflection. This is clearly articulated in Rule 4, which provides that “Goods shall be accepted as originating in a Partner State where the goods are- (a) wholly produced in the Partner State as provided for in Rule 5; or (b) produced in the Partner State incorporating materials which have not been wholly obtained there, provided that such materials have undergone sufficient working or processing in the Partner State as provided for in Rule 6.”

In contrast, the AfCFTA Annex ii on Rules of Origin permits full continental cumulation. This allows inputs sourced from any state party to be combined with value added in another member state to qualify the final good as “African”. This creates a direct contradiction for EAC members. For instance, cotton imported into Tanzania from Egypt and spun into fabric in Kenya qualifies under AfCFTA. However, under the stricter EAC RoO, that same product might fail to meet the originating criteria. This divergence may force businesses into a significant compliance dilemma.

Non-Tariff Barriers (NTB): Parallel Mechanisms, Uneven Enforcement

While both frameworks explicitly recognise Non-Tariff Barriers (NTBs) as a critical impediment to trade and have established sophisticated mechanisms to address them, a closer analysis reveals a system plagued by institutional duplication and a critical deficit in enforcement, ultimately rendering both frameworks susceptible to political intransigence. The EAC’s approach, as codified in Article 13 of its Customs Union Protocol, obliges partner states to “remove, with immediate effect, all the existing non-tariff barriers to the importation into their respective territories of goods originating in the other Partner States and, thereafter, not to impose any new non-tariff barriers”.

Theoretical alignment, however, gives way to practical contradiction. Rather than creating a cohesive, multi-level governance structure, the coexistence of these two frameworks fosters institutional redundancy. This parallelism does not enhance efficacy but instead creates a risk of forum shopping, where member states can strategically choose, or ignore, the mechanism that best suits their political or economic interests at a given time, thereby undermining the authority of both.

The persistent trade disputes between Kenya and Tanzania demonstrate that the core challenge is not a lack of legal instruments but a profound absence of political will to comply. The existence of a second mechanism under the AfCFTA does not resolve this enforcement gap; it merely provides an alternate venue for the same disputes to languish.

Customs and Trade Facilitation: The problem of Double Commitments

The EAC has pioneered innovations such as the Single Customs Territory (SCT), the use of electronic cargo tracking systems, and One-Stop Border Posts (OSBPs). These measures, grounded in the EAC Customs Management Act, 2004, streamline clearance procedures and reduce costs. AfCFTA introduces similar commitments under its Annexes on Customs Cooperation and Mutual Administrative Assistance and Trade Facilitation.

The contradiction is that AfCFTA obliges member states to adopt reforms many EAC states have already operationalised. For Kenya and Tanzania, the result is dual reporting obligations, new administrative structures, and uncertainty as to which framework takes precedence. Without explicit harmonisation, customs officials may apply conflicting procedures, increasing transaction costs rather than lowering them.

Dispute Settlement: Judicial Authority versus Political Practice

The EAC Treaty vests judicial authority in the East African Court of Justice (EACJ). However, in practice, most disputes are settled politically at the ministerial level. AfCFTA introduces a more robust Dispute Settlement Body (DSB) modelled on the WTO system. This overlap creates jurisdictional uncertainty: should a dispute between Kenya and Tanzania be heard before the EACJ or the AfCFTA DSB? Conflicting rulings from different bodies could undermine predictability and the rule of law. Until African states clarify the hierarchy between REC courts and AfCFTA institutions, legal fragmentation will persist.

Way Forward

Resolving these contradictions requires deliberate legal, institutional, and policy alignment. First, EAC partner states should invoke Article 19(2) of the AfCFTA Agreement to clarify the hierarchy of obligations. This requires harmonisation of the EAC CET with AfCFTA schedules. Second, the Rules of Origin must be reconciled to allow for continental cumulation without undermining the customs union. Third, duplication in NTB monitoring should be eliminated through integration of the EAC platform into the AfCFTA system. Fourth, dispute resolution frameworks must be clarified by establishing rules on jurisdictional priority. Finally, political will is indispensable. States must refrain from arbitrary trade restrictions and respect binding decisions. If implemented, these measures would transform contradiction into complementarity, enabling East Africa to act as a leader in realising the AfCFTA’s vision.

Conclusion

The AfCFTA and the EAC are designed to be complementary. The EAC’s innovations provide a foundation on which AfCFTA can build, while AfCFTA offers businesses opportunities to integrate into continental value chains. Yet complementarity should not be assumed. Overlapping commitments and recurring NTBs risk turning synergy into confusion. The task for policymakers is to ensure that alignment is deliberate through legal harmonisation, administrative coordination, and political will to respect rules. If effectively managed, the coexistence of the EAC and AfCFTA can unlock unprecedented opportunities for East Africa. But, if mismanaged, the dual systems may entrench the very fragmentation AfCFTA was created to overcome.