Njongoro, an innovator, launched an audacious legal assault against the architects of PesaLink, the
ubiquitous real-time interbank transfer system that processes millions of transactions daily. Armed
with claims that his “All in one banking innovation” and “air money virtual banking transfer solution
innovation” formed the DNA of PesaLink, he demanded over KSh 1 billion in damages and a
permanent injunction against the defendants.

The stakes couldn’t have been higher not just for the parties involved, but for Kenya’s entire fintech
ecosystem. Yet, when the gavel fell, Njongoro’s empire of claims crumbled. Why? Because in

intellectual property law, vision without execution is merely vapor. This case offers a cautionary tale
for ambitious innovators and a masterclass in the unforgiving precision that intellectual property
protection demands.

1. THE CLAIM: INNOVATION MEETS ALLEGATION

Njongoro’s argument was that Pesa Link a real a real-time interbank transfer system developed by
Kenya Bankers Association and operated by Integrated Payment Service Ltd (IPSL) was a direct copy
of his conceptual banking solutions. He claimed to have shared those ideas with various
stakeholders, including the Central Bank of Kenya (CBK), only to watch them materialize as someone
else’s commercial triumph.
However, the Court found that Njongoro failed to demonstrate ownership of a valid copyright under
the Copyright Act,2001 (Cap 130). Section 22 of the Act clearly states that copyright protection
applies to original works fixed in a tangible medium, such as literary works, computer programmes,
or artistic expressions.
Njongoro’s “innovations” existed solely in the ethereal realm of concepts. No supporting
documentation, no code repositories, no registered copyright certificates,nothing that would
transform abstract thinking into legally protectable intellectual property. Section 2(2) of the
Copyright Act dictates that “Copyright shall not subsist in ideas, procedures, methods of operation or
mathematical concepts as such”

2. THE LEGAL STANDARD: PROVING INFRINGEMENT

To succeed in a copyright infringement claim, a plaintiff must prove:
• Ownership of the copyrighted work
• Originality of the work
• Copying or Substantial similarity by the defendant
These principles are well established and echoed in the case of Sanitam Services v Rentokil (2006),
where the court upheld patent rights based on clear documentation and registration.
In Njongoro’s case, the court noted that:
• He did not produce evidence of registration with the Kenya Copyright Board (KECOBO)
• He failed to show that the defendants had access to or copied his work.
• His claims were speculative and lacked technical or expert support

3. THE DEFENDANTS RESPONSE

The Kenya Bankers Association and IPSL mounted a defense that was both comprehensive and
compelling, presenting PesaLink not as the product of intellectual theft, but as the organic solution
to genuine market inefficiencies that had long plagued Kenya’s banking sector. Their narrative was
supported by detailed development timelines, independent technical documentation, and clear
evidence of legitimate research and development processes.
The Central Bank of Kenya(CBK), caught in the crossfire as the third defendant, played a particularly
interesting role in the proceedings. Rather than becoming entangled in accusations of complicity,
CBK successfully delineated its regulatory mandate from any operational involvement in PesaLink’s
development. This distinction proved crucial the court recognized that regulatory oversight cannot
be conflated with commercial participation, establishing an important precedent for future fintech
disputes.
The defense strategy brilliantly illustrated a fundamental principle of intellectual property law,
independent creation is a complete defense to infringement claims. Even if two innovations appear
remarkably similar, the absence of copying or unauthorized access makes infringement claims
legally impossible to sustain. The court’s acceptance of this defense sent a clear signal that Kenya’s
judiciary will not allow speculative litigation to stifle legitimate technological advancement.

4. LESSONS FOR INNOVATORS AND INSTITUTIONS

This case sends a clear message to Kenya’s growing community of tech ecosytem:
• Register your work early with KECOBO or Kenya Industrial property Institute(KIPI)
• Document your development process from concept to execution
• Seek legal counsel before sharing ideas with third parties
For institutions, the case underscores the importance of due diligence and IP audits when launching
new platforms.

CONCLUSION: TURNING IDEAS INTO ASSETS.

The Njongoro case is not a dismissal of innovation,it’s a reminder that legal protection demands
precision, evidence, and structure. In Kenya’s digital economy, ideas may inspire, but only execution
is protected. Innovators must move beyond the blueprint and embrace intellectual property law
otherwise there innovations will be merely an expensive exercise in wishful thinking.
In today’s competitive Fintech landscape, where the difference between breakthrough success and
catastrophic failure often hinges on intellectual property protection, innovators cannot afford to
treat legal compliance as an afterthought. Ideas may spark revolutions, but only properly protected
execution survives the marketplace.
In a world where tomorrow’s unicorn could emerge from today’s startup, Bellmac Consulting LLP
provides the legal foundation that transforms brilliant concepts into billion-shilling realities. Our
comprehensive intellectual property practice doesn’t just offer protection we architect complete
legal ecosystems that turn innovative concepts into impregnable commercial assets. From strategic
IP registration and meticulous compliance audits to cutting-edge Fintech advisory services and
regulatory navigation, Bellmac delivers the legal sophistication that separates market leaders from
cautionary tales.
Ready to turn your innovation into an intellectual property fortress? Connect with Bellmac
Consulting LLP today at bellmacconsulting.com or LinkedIn @Bellmac Consulting LLP.

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1. Legal Protection for Employee Renumeration in Kenya

1. The Employment Act 2007

Article 41 of the Constitution of Kenya enshrines Fair Labour Relation Practices, while the Employment Act serves as Kenya’s primary labour relations legislation and provides essential protections for workers. Under Section 17(1) it mandates that salaries must be paid by the 10th day of the following month either in person at the workplace or through bank transfer with the employee’s consent. While Section 19 provides for statutory and employee authorized deductions, Section 90 specifically provides for fines up to KES. 100,000 or imprisonment of up to 6 months to employers who illegally withhold wages.

Indeed, Courts have lived up to ensuring the employees provide consent for deductions to be made. In Jane Muthoni v. Greenpark Services Ltd [2019] eKLR, the employer deducted 30% of wages for “training costs” without written consent. The court ruled that the deductions were illegal under Section 19 and awarded KES 450,000 in refunds and damages.

2. The Labour Institutions Act (No. 12 of 2016)

To ensure employees are well protected from unscrupulous employers and exploitative practices, Section 73 mandates employers to maintain payroll records accordingly for at least five years. Section 64 empowers Labour Officers to mediate disputes and issue binding orders.

3. Regulations on Wage Payments

Stemming from the Labour Institutions Act and the Employment Act, several regulations have a bearing on wages such as the Regulation of Wages (General) (Amendment) Order 2022, the Regulation of Wages and Conditions of Employment Act among others. These regulations stipulate that salaries must be paid via bank transfer or cheque unless the employee agrees to cash payments where the employer must provide itemized payslips that show gross pay, deductions, and net pay.

2. Possible Remedies for Employees

1. Amicable Negotiations

As part of best practices, employees are advised to maintain proper records of their employment contract, payslips, communications with their employer over delayed payments. Usually, the first step entails issuing a formal demand citing Section 17 of the Employment Act through a demand letter seeking to have the withheld sums paid out within seven (7) days.

2. Filing a Complaint with the Labour Office

This entails lodging a complaint to the local labour officer who will then summon the employer and attempt to solve the issue through mediation. Depending on the outcome, the labour officer will issue a Certificate of Resolved or Unresolved dispute after which the disgruntled employee may proceed to Court. In case the employer ignores the Labour Officer, the issue may be lodged before the Employment Labour Relations Court (ELRC) for determination seeking for attachment of the employer’s property to recover the owed amount.

3. Escalation to the Employment and Labour Relations Court (ELRC)

Compared to mediation, litigation is more time consuming and would be the most preferrable option where the employer fails to comply with the orders of the labour officer or where an employee remains unsatisfied with their decision.

During these instances of pursuit of their right, the employee may face subtle retaliation from the employer either through demotion, reduction of salary or benefits, denial of access to facilities initially freely enjoyed among other possible scenarios. In these instances, Section 46(h) of the Employment Act protects against dismissal for asserting fair administrative and employment related rights. If dismissed, the employee can proceed to file a claim for unfair termination as well as constructive dismissal.

In extreme circumstances, the employer may declare bankruptcy. Employees are encouraged to register as preferential creditors under the Insolvency Act where wages owed within 4 months before bankruptcy would be given priority during the liquidation process. For instance, in Francis Mwangi Gichuhi v. Kevina Construction Ltd [2018] eKLR, the employer withheld 3 months of wages, citing cash flow issues. The court ordered the immediate payment of wages with 12% interest, emphasizing that financial hardship does not excuse failure to meet statutory obligations.

Upon successful litigation, Courts may order for full payment of arrears, reinstatement where the dismissal is related to the wage dispute, compensation through general damages among other remedies.

C. Employer Legal Compliance and Best Practices

1. 1. Record-Keeping and Payroll Management

Employers are encouraged to implement automated systems to track payroll to ensure timely payments and regularly audit payroll to ensure compliance with wage payment laws.

In the era of strict data protection compliance, employers should maintain thorough records of:

• Signed employment contracts.

• Payslips, bank statements, and other payment evidence.

• Employee consent forms for any authorized deductions.

2. Handling Financial Hardship

Many are the instances where an employer faces financial uncertainty or constraints to sustain operations and its current work force. As most organizations are profit oriented, harsh economic turns and steep market fluctuations may lead to marginal gains. Employers may negotiate payment plans by arranging for written agreements with employees to defer wages, including a clear repayment schedule.

Conclusion

In all instances pertaining to employment and labour relations matters, both employers and employees are encouraged to seek legal advice. Engaging the services of a legal practitioner not only mitigates litigation risks but also helps in setting standards for best practices by employers. By consulting with legal experts, they will be able to avoid illegal withholdings, improper deductions and compliance issues.

Withholding an employee’s salary without a valid legal or agreed-upon reason is a violation of basic labor rights and can result in serious legal consequences for employers. Exceptions to this rule, such as statutory deductions, court orders, or mutual agreements between the employer and employee, must be clearly documented and justified. Employers must ensure that wages are paid on time and transparently to avoid legal complications and protect their business reputation. If an employer withholds salary without proper grounds, the employee has the right to seek legal action through the Labour Office or the Industrial Court. It’s essential for employers to comply with the terms set out in the Employment Act, 2007, and ensure that any salary withholding or deductions are fully documented and legally justified.

Need Assistance?

Bellmac Consulting LLP offers expert guidance on recovery of withheld renumeration, employer compliance, and dispute resolution.

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As these illegal ISPs operate in limited, localized and densely populated estates, they create a complex web of overlapping coverage preserved for licensed providers hence limiting their potential market scope. In due regard, the Authority has made proposals in its “Review of the Telecommunications Market Structure” circular in December 2024 for public consultation. These proposals aim to tackle the growing challenge of proliferation of unauthorized internet service providers operating in the shadows of Kenya’s booming telecommunications sector.

This article will seek to expound on the proposed changes affecting Public Communications Access Centres (Cybercafes) and Ordinary Vendors and Equipment Distributors.

1. Public Communication Access Centre (Internet Cybercafes)

Current Status

Kenya’s digital transformation is taking an ambitious leap forward towards achieving the last mile internet connectivity. Under the National Digital Superhighway Programme the government has unveiled a comprehensive ICT development plan that promises to revolutionize internet accessibility across the nation. At its core, this initiative aims to weave a digital fabric that connects even the most remote corners of the country by implementing the following five components:

1. Installation of 25,000 public Wi-Fi hotspots, bringing free internet access to communities nationwide

2. Establishment of three (3) state of the art data centres strategically positioned to power Kenya’s digital infrastructure;

3. Deployment of 100,ooo Km of fiber cable across the country thus creating a digital backbone that spans the country;

4. Establishment of 1,45o Digital Village Smart Hubs and Studios, serving as innovation and learning centres for local communities; and

5. Cyber security management to protect the growing digital ecosystem.

In line with the Authority’s mission of enabling regulation, it currently provides for a license for cybercafe’s under the Public Communication Access Centre (PCAC) regime. Notably, there exists a large number of entities operating as cybercafes countrywide that pose regulatory challenges. Of particular concern is the role cybercafes play in cybercrime, acting as potential safe havens for malicious actors who exploit the current lack of user tracking and identification systems.

Proposals

As the current regime closely mirrors the challenges of ordinary vendor license category, the following are proposals by the Authority aimed to cure the regulatory loopholes:

1. Record-keeping: Cybercafes will be required to maintain detailed records of customers including their Identification Document (ID) card details. This will improve accountability and aid tracking individuals who misuse these facilities for illegal activities.

2. Identification: They will be required to identify individuals who use their services or facility. This measure will deter criminal activities and enhance the overall security of Cybercafé operations.

3. Logging software: Operators of cybercafes will also be required to implement logging software on all devices used. The software will track user activity providing a digital trail that can be used for monitoring and investigative purposes.

4. CCTV: It will be a mandatory requirement for cybercafes owners or operators to install CCTV systems to monitor their premises.

5. Class Licence: PCACs that provide internet browsing services will now be licenced under the category of Internet Cafes.

The Authority aims at ensuring efficient and effective Information and Communications Technology (ICT). As part of its strategic plan aimed at bringing cybercafes under regulation, the Authority can borrow from other jurisdictions such as Malaysia, which has a robust by-law system for cybercafes run in the jurisdiction of respective local authorities.

2. Ordinary Vendors & Equipment Distributors

Current Status

Under the current licensing regime, vendors of mobile phones and vehicle tracking devices among other low power telecommunication terminal equipment are required to operate under a Vendor License. Despite the existence of the licence, instances of non-compliance with local standards such as requirement for a unique International Mobile Equipment Identity (IMEI) continues to raise concerns as oftentimes most vendors import and sell sub-standard communications devices. This regulatory challenge has further been made worse by the large number of vendors who make it nearly impossible to control the sale of substandard devices in the market.

Proposals

The Authority proposes the following under this licensing category:

1. License Category: the proposal seeks to introduce the Telecommunication Equipment Distributor (TED) license to be issued to wholesalers of communications equipment and entities importing communications equipment for sale. Foreign and local manufacturers seeking to distribute their own equipment will be required to obtain this license. Manufacturers domiciled in Kenya will be required to sell only to licensed TEDs.

2. Scope of License: the TED license will be limited to the supply and sale of ordinary both terminal and complex network equipment and provision of after-sale support through supply of spares to vendors. As such, the TED license will not include installation and maintenance activities in its scope of services.

3. Type Approvals: only licensed TEDs will be able to seek type approval/acceptance services for all low power communications equipment they sell and ensure they have a minimum of one-year warranty period and avail spares for all equipment it imports or manufactures.

4. Class License: class licenses are usually not issued to individual providers of a service but instead under some published terms and conditions govern the license in relation to the provision of the service. The current vendor license will be converted into a class license and renamed Communications Equipment Vendor (CEV) licence applicable to entities selling low power communications equipment to end-users with terms and conditions set by the Authority. Additionally, CEVs will only obtain their equipment from licensed TEDs.

5. Telecommunications Contractors (TECs): TECs currently engaged in importation or manufacturing and distribution of telecommunications equipment will have their current TEC license synchronized with the TED license provided the TEC license remains valid and is subject to modifications resulting from the proposals under the market structure review.

6. Proposed Fees: the newly proposed TED license will have the following regulatory fees:

   1. License Term: 15 years

   2. Application fee: Kshs.5,000/=

   3. Initial license fees: Kshs. 250,000/=

   4. Annual operating fees: Kshs. 120,00 or 0.4% of gross annual turnover, whichever is higher.

Conclusions

Given the exponential growth of the telecommunications market, the proposals by the Authority are well timed as the industry requires proper regulation especially in the wake of advancements of technology. As retailers will only be required to obtain their goods from licenced wholesalers and importers, this will ensure that such ICT equipment importers will bear the responsibility of ensuring all imported or manufactured equipment adheres to Kenyan standards. TED license requirements will also have the ripple effect of reducing the proliferation of e-waste as ‘dumping’ of electronic waste by developed countries will be limited.

With our expertise in technology, media, and telecommunications law at Bellmac Consulting, we remain keen on the complexities and effects of these regulatory shifts. We are well-positioned to help businesses navigate these changes and capitalize on new opportunities. Whether you’re seeking to acquire telecommunications licenses, enter into technology and telecommunications agreements, or ensure your business remains compliant, our team is here to provide expert legal and advisory services tailored to meet your specific needs.

Contact us today at Bellmacconsulting.com, and let us guide your business through Kenya’s evolving digital frontier.

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With the rapid growth of last mile internet connectivity, the Authority seeks to bring all players in the telecommunications sector by updating the current market structure based on a Unified Licensing Framework (ULF) that was developed in 2008. These changes are designed to attract global investment, improve efficiency, and pave the way for better international connectivity, for example with the recent worldwide entry of Starlink, a US-based satellite internet service provider, into the internet provision market which has brought about a global regulatory conundrum.

The Current Landscape

Currently, the international network gateway market operates under three distinct licenses that allows for connectivity of different networks internationally by translating communications from one protocol to another. These include:

• Submarine Cable Landing Rights (SCLR),

• Satellite Landing Rights (SLR), and

• International Gateway Systems and Services (IGSS).

SCLR licensees acquire rights to land submarine cable systems that pass under the sea into the mainland, SLR licensees acquire rights to land their satellite signal in the countryand IGSS licensees, on the other hand, handle international traffic using satellite technology.

However, this current system has significant flaws, particularly with respect to the ULF, which advocates for technology neutrality. For instance, due to the lack of proper licenses and gaps in the regulatory regime, Starlink was authorized by the Authority to temporarily operate in the proposed Ku frequency band and Swam technology in 5h3 VHF frequency band for a period not exceeding 12 months.

The existing system imposes varying licensing fees and requirements which create an uneven playing field for operators. For instance, the initial fees for SCLR and IGSS licenses are Kshs. 15 million while the SLR requires a modest $12,500. The annual operating fees also differ greatly; where SCLR costs Kshs. 4 million, IGSS costs Kshs. 800,000, and SLR licensees are exempt from annual fees. This inconsistency has discouraged investment and stifled innovation due to lack of competition and led to low-quality telecommunications services.

The Proposed Changes

Kenya is rewriting the rules to simplify and modernize its licensing system. Under the new framework, SCLR licenses will be stripped of their international gateway provisions, thereby simplifying their scope. IGSS licenses will embrace technology neutrality, allowing licensees to use any medium such as submarine cables, satellites, or terrestrial cables to handle international traffic. Billing and switching international traffic will be solely within the purview of IGSS license holders.

The most significant change involves merging the SCLR and SLR licenses into a single, versatile Landing Rights License. This new license will empower investors to land international signals using any technology, and its scope will expand to include innovative services like space research, meteorology, and telemetry, alongside satellite hubs and terrestrial cables transiting through Kenya to neighboring countries.

Financial Implications

The new licensing framework sets a clearer and more consistent application fee structure for the licenses. The application fee for the Landing Rights License is Ksh. 5,000, with an initial license fee of Ksh. 15 million and annual operating fees of Ksh. 4 million or 0.4% of the annual gross turnover, whichever is higher. These changes are designed to provide a more standardized and transparent financial landscape for investors.

The Bottom Line: Opportunities and Challenges

While the overhaul aims to streamline the licensing process, there are both advantages and potential drawbacks for investors, operators, and consumers.

For investors, the introduction of a Landing Rights License simplifies the process, but the higher initial licensing and annual operating fees may deter small-scale or emerging players. With the removal of the “Equity Participation Rule” in 2023 which required telecommunication companies to have at least 30% substantive Kenyan ownership, this could lead to a consolidation of the industry around established operators, reducing competition and potentially stifling innovation. For operators, the increased regulatory fees could limit their flexibility and force them to pass these additional costs onto consumers, leading to higher prices for internet and telecommunications services. This could widen the digital divide, particularly in rural and marginalized areas.

The new framework, however, could position Kenya as a regional hub for telecommunications, attracting international investments for satellite hubs and terrestrial cables. While this would strengthen Kenya’s global competitiveness, there is a risk that the focus on serving international clients could disadvantage local consumers, especially in rural areas that rely on satellite technology for connectivity. Satellite-based services such Starlink may face slower adoption due to the high licensing fees and lack of a defined regulatory system for direct-to-device satellite technology, hence limiting access to these services for Kenyan consumers.

The Future of Kenya’s Telecommunications

As Kenya navigates these changes, it raises critical questions: Will the new licensing framework create a dynamic and competitive telecommunications ecosystem? Or will it disproportionately favor established players and international markets at the expense of Kenyan consumers and small businesses?

At Bellmac Consulting, we recognize the complexities of these regulatory shifts. With our expertise in technology, media, and telecommunications law, we are well-positioned to help businesses navigate these changes and capitalize on new opportunities. Whether you’re seeking to acquire telecommunications licenses, enter into technology and telecommunications agreements, or ensure your business remains compliant, our team is here to provide expert legal and advisory services tailored to meet your specific needs

Contact us today at www.bellmacconsulting.com, and let us guide your business through Kenya’s evolving digital frontier.

The authors are Simon Rutto and Blaise Kwasi, Advocates of the High Court of Kenya.

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Demystifying Image Rights

Image rights account to an individual’s proprietary rights in their personality and the ability to exploit and prevent unauthorised third parties from making use of that individuals name, nickname, image, likeness, signature and other attributes to that individual’s image. Kenyan courts have been keen on laying bare the aspects of data privacy that associate with image rights and as such, intellectual property. The High Court in Wanjiru v Machakos University (Petition E021 of 2021 [2022] KEHC 10599 (KLR) well interpreted the issue of image rights in relation to privacy rights and data protection laws.

Case Analysis

The Court examined whether the accused’s- Machakos University, use of the Petitioners photograph in advertising without her consent, violated her right to human dignity and primarily in this case- her right to privacy. The Court emphasized the need for data controllers to inform subjects of their rights and any action they intend regarding to data collected from the subjects. Additionally, the Court found breach of her image rights by focusing on whether the use of the photograph was for financial gain.

It was finally concluded that, since the end goal was to inform the public about courses offered and hence generating revenue for the university coffers, this did in fact infringe on the Petitioner’s image rights.

On 22nd January 2025, the Office of the Data Protection Commissioner (the ODPC) in Richard Wafula v Hotel Tobriana (ODPC Complaint No. 1708 of 2024) also issued a determination against unauthorized commercial use of photographs taken without written consent.

Case Analysis

The Commissioner analysed whether there was breach of the right of erasure following the complainant’s request to delete the images and videos from the hotel’s Facebook and Instagram platforms. In determining this issue, the commissioner also examined whether the hotel as a data controller or data processer notified the data subject of the use of their data. The ODPC also delved into the issue of commercial use of public data by the hotel where it posted the complainants images and videos on it’s social media accounts.

The ODPC found the hotel in breach of all the above issues and it ordered the hotel to not only delete the Complainant’s data but also pay Kshs. 750,000.00/= as compensation for the commercial use of his data without his express consent and for the violation of his right to the erasure of his data.

Simply put, Image Rights encompass an individual’s ownership over their own persona and ability to prohibit unauthorized usage of various aspects associated and rooted in their identity. These aspects involve their picture or caricatures, their physical appearance, likeness, mannerisms, voice, personal logos and slogans and signatures. This grants them legal authority to control and protect the commercial use of their personal brand.

In relation to scope with regard to the right of privacy the courts connected image rights as a property right which then safeguards their inherent dignity.

The court in the Machakos University matter further held that “protecting an individual’s dignity includes safeguarding their life, physical and moral integrity, honor, and reputation”

Property Rights vis-a-vis Image Rights

As the right to property is guaranteed under Article 40 of the Constitution of Kenya, this also involves intellectual property rights which enables creators, owners of copyrighted works, trademarks among others to benefit from their own creations, inventions and investments in innovative endeavours.

As marketing strategies evolve, the use of media platforms exposes one’s image. For individuals, when their images proffer commercial benefit without their consent eventually constitutes an unjustifiable invasion of the person’s rights leading to an entitlement to damages.

To avoid losing out on revenue, it is advisable for commercial entities seeking to incorporate individuals in image-based advertising to enter into contracts addressing image ownership and exploitation. Parties should enter into a Model Release Agreement that grants permission for use of the individual’s image.

Conclusion

For businesses and entrepreneurs, respecting image rights is not only a legal obligation but also a strategic move that enhances brand integrity and fosters positive relationship with creatives and public figures. All parties can achieve a balance between commercial interest, creative expressions and individual rights, thus contributing on how entrepreneurs navigate the dynamic world of digital media and marketing.

The above decided decisions are a clarion call to organizations to audit their internal convectional practices to determine whether they are up to date with the evolving legal landscape on data governance.

Personal data including but not limited to image rights is recognized by law as a valuable item that belies human identity and human dignity, thus deserving of conscious and intentional decision making by organizations to prevent being on the wrong side of the law.

To understand more on image rights and how to protect your interests, please reach out to us at info@bellmacconsulting.com to better understand and enforce your image rights.

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As regulatory compliance is not a one-size-fits-all proposition, businesses face different compliance requirements that must be understood and met. This may entail: tax compliance, business licensing, employment compliance, environmental and even financial compliance. Understanding the legal landscape is critical to safeguarding your business.

Here’s why Business Legal Solutions & Regulatory Compliance Advisory should be part of your strategy:

✅ Stay Ahead of Legal Changes Constant shifts in regulations can impact your business operations. Legal solutions ensure you stay compliant with evolving laws.

✅ Reduce Legal Risks Proactive compliance reduces the risk of costly legal issues, including fines, penalties, and reputational damage.

✅ Operational Efficiency With the right legal framework in place, your business can run smoothly, reducing legal bottlenecks and delays.

Navigating regulatory compliance is a critical aspect of business management. By understanding the regulatory bodies meeting compliance requirements and taking steps to avoid non-compliance, businesses can protect their business from financial, legal and reputational risks associated with regulatory violations.

At Bellmac Consulting, we provide expert legal solutions and regulatory compliance advisory to ensure your business operates within the law—at all times.

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Promised Perfection, Delivered Deception

Catherine walked into iPhone Street Kenya Limited, ready to invest in a high-end smartphone. She paid KES.120,000 for an iPhone 12 Pro Max, believing she was getting a brand-new device. But what she got was more than she bargained for, a phone that would soon betray her expectations.

Within weeks, the phone started failing her. Network issues, malfunctions, and glitches turned her sleek new device into an expensive liability. Frustrated, she sought help from the retailer. The only solution they offered? A simple reset. But as expected, the problem resurfaced. Catherine’s second visit to the store carried a different tone, concerns had become complaints, and her patience had worn thin. She demanded a replacement or a refund but her pleas fell on deaf ears. Catherine knew she had been wronged and she was not about to let it slide.

The Turn of The Tide

Her complaint to the Competition Authority of Kenya (CAK) set wheels in motion that would eventually reveal the truth. The regulator initiated an investigation under Section 70(a) and Section 31 of the Competition Act. What they uncovered was shocking; the “new” iPhone she had purchased was actually a refurbished model a pre-owned device cleaned, repaired, repackaged as factory-fresh and fraudulently marketed as new.

As investigators peeled back layers of deception, violations of Kenya’s competition and consumer protection laws became evident. iPhone Street Kenya Limited had run afoul of multiple laws as their deceptive practice violated Article 46(1)(a), (c), and (d) of the Constitution and Sections 55(a)(i), 55(b)(v), and 56(1) of the Competition Act, which prohibit false or misleading representations and unconscionable conduct.

Victory for the Consumer

The Authority’s verdict was clear- Catherine deserved a full refund, and iPhone Street Kenya Limited received an official warning to abandon such deceptive practices or face stricter consequences.

As Catherine received her KES. 120,000 back, her victory represented not just personal vindication but a statement for consumer rights across Kenya.

The Authority’s enforcement action, while apparently lenient with merely a warning issued, establishes valuable precedent for future consumer complaints and puts similar retailers on notice that such practices will not be tolerated under Kenyan law.

Lessons for Consumers and Businesses

For Consumers:

1. Always Verify Product Authenticity – Don’t get duped! Check serial numbers, confirm warranties, and ensure you’re getting the real deal.

2. Know Your Consumer Rights – Kenyan law protects you from fraudulent business practices. Stay informed and empowered.

3. Seek Legal Redress – Regulatory bodies such the CAK exist to protect consumers, report any suspicious business practices.

For Businesses:

1. Transparency is Key – Honest advertising fosters trust which is a retailer’s greatest asset and it builds long-term customer relationships.

2. Deception has a Price – Misleading representations can lead to legal action, financial loss, and reputational damage.

3. Compliance is survival – Adhering to competition and consumer protection laws is not just good ethics, it is the key to staying in business.

Consumer Power, Business Integrity and Path forward

Have you purchased a product that failed to live up to explicit or implied promises? Has a retailer misrepresented goods or services, leaving you with financial loss and frustration? As a business, have you ever faced claims despite doing your best to deliver quality products?

At Bellmac Consulting LLP, we stand at the intersection of consumer rights and business compliance. For consumers: We navigate the complex regulatory landscape on your behalf, preparing and filing compelling complaints with the Competition Authority of Kenya and other relevant regulators. Your voice will be heard, and your rights defended with expert precision.

For businesses: We provide pre-emptive compliance guidance to assist you avoid costly regulatory pitfalls. Our team audits your marketing materials, sales practices, and consumer policies to ensure alignment with Kenya’s competition and consumer protection laws while maintaining your competitive edge.

Don’t let deceptive practices go unchallenged, and don’t let your business become the next cautionary tale. Contact us by visiting our website at Bellmacconsulting.com today and protect your rights, your business, and your reputation.

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This is where a Founder’s Agreement comes in, a crucial document that sets the ground rules, defines roles, and protects your startup from chaos. It is not about distrust but about ensuring your vision survives the challenges ahead as the startup world is littered with cautionary tales of successful ventures torn apart by founder disputes.

What is a Founder’s Agreement?

A Founder’s Agreement is a legally binding contract that meticulously defines the rights, roles, responsibilities, equity distribution, and governance structure among startup’s co-founders. Without a clear framework, even the most promising ventures can be derailed and unravel into disputes and legal battles.

This agreement serves as both a roadmap and a shield, detailing how the business will operate, how decisions will be made, and how critical scenarios such as a founder’s exit or a disagreement will be handled. It goes beyond mere paperwork as it fortifies the foundation of the startup protecting each founder’s interests and memorialize that all founders are in agreement about the venture’s basic structure and how the founders will work together to move their business forward.

In essence, a Founder’s Agreement is not about anticipating failure but fostering trust, clarity, and resilience, so the founders can focus on turning their vision into reality. Think of it as the legal backbone of your entrepreneurial journey, safeguarding not just the business, but the relationships that built it.

Must-Have Clauses in a Founder’s Agreement

To build a strong foundation, ensure your agreement includes these essential clauses:

1. Business Vehicle and Structure– Determine how your Start-up will be structured, consider if it makes more sense for it to work as a Partnership, Limited Liability Partnership(LLP),Nonprofit Organization or a Limited Liability Company(LLC), and consider all of the financial and structural implications that come with each option

2. Equity Split & Ownership – Clearly outline the equity distribution, under what conditions they may change and the process of transferring ownership

3. Roles & Responsibilities – Outline what each founder brings to the table and their day-to-day duties to avoid overlapping of roles thus having a clear expectation for performance.

4. Governance Process – Establish how key decisions will be made, including voting rights, meetings and procedures, to ensure fairness, efficiency and majorly avoid power struggles.

5. Vesting Schedule – Protect the company by ensuring founders earn their shares over time, discouraging early exits.

6. Intellectual Property – Ensure that all intellectual property (IP) created for the business belongs to the agreed business vehicle i.e. Company.

7. Salary Compensation– Brings clarity on what the Founders are set to earn as the Start-up scales.

8. Confidentiality- For protection of the business confidential information

9. Termination– Plan for the unexpected and outline the scenarios of a possible founder exit and what will happen to their equity in case of a voluntary, involuntary exit or death

10. Dissolution- Clearly outline the distribution of profits, assets, and liabilities in the event of closure to ensure all founders are aware, aligned, and in agreement, thereby preventing potential legal disputes down the line.

11. Dispute Resolution-Incorporate a clear framework for resolving conflicts that may arise, reducing the risk of prolonged disputes

Why is a Founder’s Agreement Important?

A Founder’s Agreement is a vital tool for protecting your business. Here’s why:

• Prevents Disputes: By establishing clear guidelines from the onset, it minimizes conflicts, legal and financial battles that could derail the startup

• Protection of Interests: It protects each founder’s interests in the business and sets out agreed-upon terms for building and managing the company

• Clarity and Alignment: It ensures all founders are on the same page regarding the role each will play in evolution of the business is critical to the long-term success of the start-up.

• Enhances Investor Confidence: Investors are more likely to fund a startup with a well-structured Founders agreement in place.

• Ensures Business Continuity: Provides clear procedures for handling exits, ensuring the company stays afloat even if a founder leaves.

Takeaway

Successful startups are not built on handshakes and good intentions alone they require thoughtful legal frameworks that protect all parties. A solid Founder’s Agreement is your safety net, ensuring clarity, alignment, and resilience as you navigate the challenges of entrepreneurship. Whether you are starting out or scaling up, formalizing your business relationship is crucial. Don’t leave your startup’s future to chance,get a Founder’s Agreement in place today.

At Bellmac Consulting LLP, we transform startup visions into reality. Our specialized team of advocates guides founders from inception through scaling, offering expert counsel on, Founder & Investment Agreements, Early-stage Funding, Commercial Contracts and Strategic Legal Advisory

We pride ourselves on swift, pragmatic solutions that protect your interests while enabling growth. Let us build your startup’s legal foundation right and connect with us by visiting our website at bellmacconsulting.com today.

The post Beyond Handshakes: Why Smart Founders Put It in Writing appeared first on Bellmac Consulting LLP.

Consequently, the buyer is obliged to perform due diligence to verify fulfillment of needs and mitigate potential risks. The parties should assess the likelihood of any transfer conditions and the potential impact. Some of these considerations include; 

1. Prior to effecting a transfer, a shareholder must give due consideration to pre-emption rights. A pre-emptive right confers upon a shareholder the privilege of acquiring additional shares in a company prior to their issuance to the public. This entitlement is typically enshrined in the shareholder agreement. 
2. Further, one need to carefully examine the company’s Articles of Association and any relevant shareholders’ agreements for potential restrictions or conditions on share transfers e.g. the “lock in period” clause prevents shareholders from selling their shares or securities for a specific period of time 
3. A company’s articles of association form a binding contract between the company and its shareholders. Any restrictions on share transfers outlined in these articles are enforceable as contractual terms. 
4. Evaluate whether the proposed share transfer is subject to the Competition Act of Kenya’s mandatory notification requirements and, if applicable, requires approval under the Capital Markets (Takeovers and Mergers) Regulations, 2002 and whether it is subject to other industry-specific regulations such as those of the Communications Authority of Kenya. 
5. The departure of a shareholder can significantly impact existing commercial contracts. It is essential to evaluate how a share transfer might affect supply agreements, intellectual property licenses, secondment arrangements and other contractual relationships. These implications should be carefully assessed and addressed within the shareholders’ agreement or the contracts themselves. 
6. Another crucial element to take into account is the formal approval of the share transfer by the board of directors, expressed through a board resolution. 

It is important to note that when a transfer is hindered by the company’s articles, shareholders have the power to alter the articles to permit the transfer, either for all future transfers or solely for the current situation. Additionally, shareholders may choose to temporarily waive pre-emption rights without altering the company’s articles. 

Effectuating a seamless share transfer requires a meticulous approach that harmonizes legal, contractual and corporate governance imperatives. While the complexities involved can be intricate, proactive identification and management of potential challenges are crucial. By conducting comprehensive due diligence and enlisting expert support, concerned parties can navigate this process with confidence. 

The post A Deep Dive into Share Transfer Due Diligence  appeared first on Bellmac Consulting LLP.

A Digital Credit Provider (DCP) is a financial institution that uses digital platforms like websites and mobile apps to provide loan products and services. Borrowers can apply for, receive and repay loans entirely online without needing to visit a physical branch. 

Some examples of DCPs include fintech lenders with mobile loan apps, mobile banking platforms with credit features, mobile network operators offering airtime advances and Buy Now Pay Later providers. 

Kenya’s DCPs are governed by the Central Bank of Kenya (Digital Credit Providers) Regulations 2022 “Regulations”, which were introduced under the amended Central Bank of Kenya Act of 2021. The DCP regulations in Kenya were passed to address concerns about the growing digital lending industry such as; 

1. Consumer protection: The Regulations crack down on predatory lending, hidden fees, and aggressive collection tactics by some digital lenders. This aims to create a fairer lending environment for borrowers. 
2. Transparency: Opaque loan terms left borrowers confused and potentially vulnerable. These terms often lacked clarity on crucial aspects like interest rates, fees, repayment schedules and late payment penalties. The regulations aim to clamp down on this by ensuring clear and easy to understand loan details. 
3. Corporate Governance: Prior to the implementation Regulations, the digital lending space while experiencing a boom in convenience and accessibility between 2014 and 2019, lacked established practices and safeguards, raising concerns on governance. These concerns centered around issues like board governance, accountability and ethics. The Regulations address these concerns by prescribing corporate governance principles that establish a framework for responsible lending. 

Beyond the core Regulations, DCPs in Kenya must also play by the rules set out in wider laws. This includes adhering to the Data Protection Act, Consumer Protection Act and the Proceeds of Crime and Anti-Money Laundering.  

Registration of a DCP 

To operate as a DCP, a license from the CBK is mandatory under the Regulations. DCP licenses are valid for one year, subject to renewal by December 31st. The CBK publishes the names and addresses of licensed DCPs within 30 days of issuance in the Gazette and on their website. A recent press release from the CBK in March 2024 indicated that there are now 51 licensed DCPs operating in Kenya. 

To obtain a DCP License, entities must be registered as a Company and should initiate registration with the Office of the Data Protection Commissioner’s Office (ODPC). These registrations are mandatory compliance documents for the CBK application process. 

The key requirements for the formal application to CBK are as follows; 

1. Application Forms: Complete CBK DCP 1 form detailing your company and proposed DCP business. 
2. “Fit and Proper” Assessments: Directors, CEO, Senior Officers and significant Shareholders need to fill out “Fit and Proper” forms (CBK DCP 2 & 3) to assess their suitability. 
3. Business Plan: A detailed plan outlining your digital credit business model, target market and risk management strategies. 
4. Financial Information: Evidence demonstrating the legitimacy and source of funds for your investment. 
5. Policies: Copies of your Data Protection Policy, Consumer Protection Policy, Dispute Resolution Policy and Terms & Conditions for lending services. 
6. Technical Capacity: A copy of the service provider agreement, IT system description and independent assurance report on the systems. 
7. Anti-Money Laundering (AML) Measures: Plan for identifying and verifying customer identities and preventing money laundering activities. 
8. Compliance Documents: Copies of certificate of good conduct, tax compliance certificate and credit reference bureau report for each of the digital credit provider’s individual significant shareholders, directors, chief executive officer and senior officers. 

Reporting Obligations 

1. Each year by December 31st, DCPs are required to submit a report to the CBK confirming their compliance with the relevant Act and the Regulations. 
2. DCPs are required to notify the CBK not less than 30 days before any significant changes occur within their shareholding, board composition, management structure or the appointment of new directors, CEOs, or senior officers. 
3. Also required to pay a yearly license fee by the end of December 31st. 
4. Before getting any outside funding or investment, DCPs need to notify the CBK at least 30 days in advance. 
5. If a DCP experiences a personal data breach, they must report it to the ODPC 72 hours of becoming aware of the incident.

Conclusion 

While the 2022 DCP Regulations have brought much needed order to digital lending, a potential loophole remains. Section 2 of the Central Bank Act defines a “digital credit business” as one operating solely through digital channels. This raises concerns; could lenders using traditional methods to escape regulation?  

Additionally, the while the Regulations established a deadline of September 2022 for existing digital lenders to obtain licenses, a lack of clarity regarding consequences for non-registration creates a temporary grey area. This ambiguity may have act as a loophole for some unregulated lenders to continue operating beyond the deadline. 

Overall, the risks of operating an unlicensed DCP in Kenya are significant for instance criminal sanctions, reputational damage and difficulty accessing funding. It is highly recommended for DCPs to comply with the CBK Regulations and obtain the necessary licenses to operate legally and avoid potential sanctions. 

The industry is also witnessing some trends, such as the adoption of open banking (enhanced with cybersecurity measures) as an innovation strategy and the establishment of regulatory sandboxes, which can be instrumental in fostering a healthy and innovative DCP landscape within a well-regulated environment. 

The post Balancing Innovation and Protection: Digital Credit Providers Kenyan Regulatory Maze  appeared first on Bellmac Consulting LLP.