Our team facilitates the process of investments by ensuring that our clients are covered in all aspects of contracting, negotiation, and where necessary, facilitating arrangements for financing. We speak legal and business language.

Employers will now be required to grant one (1) month paid leave to mothers who adopt children as well as a 2-week paternity leave to adopting fathers. This follows Presidential assent to the Employment (Amendment) Bill, 2019[1] on 30^th March 2021 which effectively made amendments to the Employment Act No. 11 of 2007.[2] The one-month paid leave is a reduction of the earlier proposal for a 3 months’ paid leave contained in an earlier version of the Bill and which period is similar to that granted to mothers who bear children naturally.

The relevant provision grants adopting mothers one-month pre-adoption leave with full pay from the date of adoption of the child or placement of a child in the continuous care and control of an employee. On the other hand, a married male employee is entitled to 2 weeks pre-adoption leave with full pay from the date of placement of the child in their control.

An employee who is eligible for pre-adoption leave is required to notify their employer in writing of the intention of an adopting society to place a child in their custody and care at least 14 days before such placement. This notice in writing should be accompanied by evidence of such intended adoption or placement including a custody agreement between the employee and the adoption society as well as an exit certificate. An exit certificate refers to the written authority given by a registered adoption society to a prospective adoptive parent to take a child from the custody of the adoptive society.

[1] <http://kenyalaw.org/kl/fileadmin/pdfdownloads/bills/2019/Employment_Amendment_Bill_2019.pdf > accessed 31 March 2021.

[2] <http://kenyalaw.org:8181/exist/kenyalex/actview.xql?actid=No.%2011%20of%202007 > accessed 31 March 2021.

This amendment to the law is meant to entrench equality between parents who naturally give birth to children and those who adopt children from adoption societies. The legal requirement wrought by this amendment will certainly have implications on employers as they will have to do without employees who choose to adopt children for the duration of the leave, with consequences on productivity and adding on to labor costs as employers will have to hire additional workers on a temporary basis for the period.  Potentially, it is possible for the legal provision to be abused by employees in order to obtain leave.

Notably, the President had initially rejected an amendment to the Employment Act (contained in the Bill now assented) which sought to grant pre-adoptive leave to surrogate parents who give birth through assisted reproductive technologies, on grounds that Kenya does not yet have a legal framework on surrogacy.[1] There is currently an Assisted Reproductive Technology Bill 2019[2] pending in Parliament, which seeks to provide the requisite legal framework for surrogacy and assisted reproductive technology. Once this law is enacted, it may not be surprising to find a similar amendment to employment law to require granting of leave to surrogate parents.

[1] <https://www.businessdailyafrica.com/bd/economy/uhuru-rejects-maternity-leave-f-adopting-children-3285586 > accessed 31 March 2021.

[2] <http://www.parliament.go.ke/sites/default/files/2019-06/Assisted%20Reproductive%20Technology%20Bill%2C%202019.pdf > accessed 31 March 2021.

The President assented to law the Law of Succession (Amendment) Bill, No. 75 of 2019 on 17^th November 2021, effectively amending two key provisions of the Law of Succession Act 1981, Cap 160 Laws of Kenya.

First, the new law amends section 3 of the Act by introducing a new definition of a ‘spouse’ as “a husband or a wife or wives recognized under the Marriage Act”. Section 2 of the Marriage Act, No. 4 of 2014 defines a spouse as a “husband or wife”.

Second, there is an amendment to the meaning of a ‘dependant’ as provided for under section 29 of the Act. A dependant generally refers to a person who may be entitled to a share of a deceased person’s property. A ‘dependant’ under the new law is defined as ‘the spouse and children of the deceased whether or not maintained by the deceased immediately prior to his death; and such of the deceased’s parents, step-parents, grandparents, grandchildren, step-children, children whom the deceased had taken into his family as his own, brothers and sisters and half-brothers, half-sisters as were being maintained by the deceased immediately prior to his death”.  This is a departure from the earlier provision which included former wives or wives as dependants. A former wife or wife now does not appear to be covered under the definition of spouse (which refers to a current husband or wife) and may thus not be eligible as beneficiaries/dependents of a deceased’s estate.

Third, section 29c of the Act which provided that “where the deceased was a woman her husband would be a dependant if he was being maintained by the woman immediately prior to her death” has been repealed. However, this is not to mean that a husband cannot benefit from their wife’s estate upon her death since both wife and husband are now considered as spouses and therefore dependants of each other’s estate under the law. Much to the contrary; what the law has done is to make the erstwhile patriarchal provision gender neutral, so as to make it possible for either a wife or a husband to benefit from each other’s estate upon their death.

Fourth, the new law provides that a person not named in the section will not be a dependant unless the person proves that they were being maintained by the deceased for a period of two years prior to the death of the deceased. This provision seeks to prevent persons who would otherwise seek to benefit from the estate of a deceased by either claiming they were a secret lover to the deceased or were being maintained, as has happened in the past. One will only qualify to get a share of the estate if they are able to prove maintenance for at least two years by the deceased prior to their death.

It is important to note that the law of succession applies to the devolution of the estate of a deceased person who dies intestate (without making a will). One may therefore avoid application of the law of succession to their estate by courts by making a valid will before their death.

In a judgment delivered on 30 September 2022 in Kenya Commerce Exchange Service Bureau Limited (KENEX) v Central Bank of Kenya, Petition No. E 181 of 2021, the High Court clarified on who a Payment Service Provider (PSP) is, within the meaning of the National Payment Systems Act 2011 and the National Payment System Regulations 2014. This finding is important as it determines who will be under the regulatory ambit of the Central Bank of Kenya, and serves to ensure that any risks within the national payment system are mitigated. A further consequence of the judgment was that financial institutions may now be able to connect directly onto SWIFT without relying on a third party that offers a platform such as KENEX.

The Establishment of the Small Claims Court by the Judiciary was meant to address the acute backlog of cases that had almost crippled the administration of justice.