Guides

1 Legal framework

1.1 Are there statutory sources of labour and employment law?

The statutory sources of labour and employment law are as follows:

• The Constitution of Kenya 2010 provides for the rights and freedoms of employees, employers’ organisations and trade unions.
• The Employment Act 2007 governs the relationship between employers and employees and provides for the minimum conditions of employment.
• The Labour Institutions Act (12/2007) governs the creation of labour institutions such as:

1.  the National Labour Board, which advises the cabinet secretary for labour on employment matters;
2. the Commission of Inquiry;
3. the director of employment; and
4. other employment bodies, such as the Wages Council, which handle inspections and administration of labour relations.

• The Labour Relations Act 2007 governs the registration and relations of trade unions and employers’ organisations, and promotes employees’ freedom of association.
• The Occupational Safety and Health Act 2007 governs employees’ safety, health and welfare in the workplace.
• The Work Injury Benefits Act 2007 governs the compensation of employees for injuries or diseases contracted during employment.
• The National Social Security Fund Act governs eligibility and terms of contribution to for employee pensions.
• The National Health Insurance Fund Act governs eligibility and terms of contribution to the national medical fund for employees.
• The Employment and Labour Relations Court Act 2014 and the Employment and Labour Relations (Procedure) Rules 2016 govern the establishment, jurisdiction, mandate and procedure of handling disputes in the Employment and Labour Relations Court.
• International treaties have also been ratified, including International Labour Organization conventions such as:

1. the Forced Labour Convention;
2. the Equal Remuneration Convention;
3. the Minimum Age Convention; and
4. the Worst Forms of Forced Labour Convention.

A comprehensive list can be found here.

1.2 Is there a contractual system that operates in parallel, or in addition to, the statutory sources?

Yes, there is a contractual system that operates in parallel. A contract governs the relationship between an employer and an independent contractor/consultant.

1.3 Are employment contracts commonly used at all levels? If so, what types of contracts are used and how are they created? Must they be in writing must they include specific information? Are implied clauses allowed?

No, employment contracts are not commonly used at all levels.

…..Continue reading the Labour and Employment Comparative Guide – – Kenya (1)

1 Legal framework

1.1 Which legislative and regulatory provisions govern corporate immigration in your jurisdiction?

Kenya has a sound legal framework governing migration. The national laws include:

• the Kenya Citizenship and Immigration Act, 2011;
• the Kenya Citizenship and Immigration Regulations, 2012;
• the Kenya Citizens and Foreign National Management Service Act, 2011; and
• the Kenya Citizens and Foreign National Management Service Regulations, 2016.

The immigration laws are implemented by the Directorate of Immigration Services, a directorate under the Ministry of Interior and Coordination of National Government.

1.2 Do any special regimes apply in specific sectors?

The immigration laws govern all citizens and foreigners. However, specific laws apply to certain groups of people, which may affect immigration controls in Kenya. These include:

• the Refugees Act, 2006;
• the Prevention, Protection and Assistance to Internally Displaced Persons and Affected Communities, 2016; and
• the Counter Trafficking in Persons Act, 2010.

1.3 Which government entities regulate immigration in your jurisdiction? What powers do they have?

Immigration is regulated by the Directorate of Immigration Services, a directorate under the Ministry of Interior and Coordination of National Government. The directorate provides information on all permits and passes available for foreign nationals who wish to enter the country. The directorate is mandated to:

• control and regulate the entry and exit of all persons at Kenya’s airports, seaports and land border posts;
• issue passports and other travel documents;
• control and regulate residency through the issuance and renewal of work permits, residence permits and other passes;
• consider and grant Kenyan citizenship to qualified foreigners;
• register and issue entry visas to all non-citizens resident in Kenya;
• declare and remove prohibited immigrants;
• provide consular services to Kenyan nationals and foreigners at all missions abroad;
• offer quasi-consular functions to Commonwealth countries not represented in Kenya;
• investigate and prosecute persons who contravene the immigration laws and regulations; and
• collaborate with other ministries, departments and agencies regarding the collection of relevant primary data.

1.4 What is the government’s general approach to immigration in your jurisdiction?

The Directorate of Immigration Services implements and strictly adheres to the Kenya Citizenship and Immigration Act and has established a platform – the Electronic Foreign Nationals Services Portal – for the submission of applications. All applications are submitted online, and communication is done via the notifications section on the portal.

Payments are also made online. A few services are provided physically. All queries and complaints are addressed via the emergency contacts provided by the Immigration Department or in person at the headquarters of the Directorate of Immigration Services.

Applications undergo a rigorous security check. The Kenyan authorities clearly outline visa eligibility criteria on the government’s eVisa website. The visa application programme is available online for non-referred visa categories, including ordinary visas issued for single or multiple entries, transit, courtesy or official, diplomatic and East Africa single tourist visas. The Kenya Citizenship and Immigration Act includes various work permit categories that allow immigrants to work in Kenya.

2 Business travel

2.1 Do business visitors need a visa to visit your jurisdiction? What restrictions and exemptions apply in this regard?

…Continue reading the Immigration Comparative Guide – – Kenya

The Sectional Properties Act 2020 was introduced on December 28 2020, to align with the laws written in the Constitution of Kenya 2010, the Land Act and Land Registration Act 2012. This Act was repealed and replaced the Sectional Properties Act 1987, which will be referred to as the old regime in this article. Sectional properties are an essential aspect for property owners, developers, prospective buyers, and financiers considering the growth of Kenya’s construction industry.

Below is an in-depth discussion of what sectional properties are and the laws around the ownership of sectional properties.

What is a sectional property?

A sectional property means that there is a piece of land with buildings divided into separate units. A different person owns each unit, and there are also shared areas owned by all the unit owners together. In Kenya, the most common type of sectional property is an apartment. Recently, there has been a significant increase in the construction of apartments for sale in Nairobi and other cities. This is why it is important for potential buyers, financiers, and real estate developers to understand the Sectional Properties Act. When you own a unit in a sectional property, you not only own your own unit but also have a share of ownership in the shared areas along with the other unit owners. In a residential estate, for example, an apartment owner exclusively owns their own apartment but also shares ownership of the compound or driveways with the other homeowners.

What is a sectional unit?

A sectional unit refers to a specific space inside a building, like a room or an apartment. It is identified by its location within the building, such as the floors, walls, and ceilings. The idea of sectional properties means that each sectional unit has a distinct portion or share of the common areas.

How do sectional properties come into existence?

A sectional property comes into existence after preparing and registering a sectional plan. A sectional plan is done by a surveyor when they divide an existing structure designated as a building into two or more units. A surveyor must ensure that they are presented with proof of ownership of the parcel of land before drawing the sectional plan.

Characteristics of a Sectional Plan

A sectional plan should meet the following characteristics:

1. Geo-referencing, which means the reference of an object using a specific location either on, above or below the earth’s surface;
2. Bear a statement containing those particulars as may be necessary to identify the title to the parcel;
3. A drawing illustrating the units and distinguishing the units by numbers or other symbols;
4. Show the approximate floor area of each unit;
5. Be signed by the proprietor;
6. Be signed and sealed by the office or authority responsible for the survey;
7. Have the address at which documents may be served on the Management Corporation and
8. Indicate the user of the unit.

A sectional plan is presented in quadruplicate to the Registrar and will be entered into the register. On registration, the Registrar will close the register of the original title deed and open separate registers for each unit in the sectional plan. Sectional titles will be issued regarding each unit after payment of the prescribed fees. The Registrar must submit a copy of the registered sectional plan to the county government for approval within twenty-one days from the registration of the sectional plan.

Management Corporation

The registration of a sectional plan is accompanied by an application for registration of the Management Corporation and a list of the persons who are the owners of the units in the parcel, which shall be updated from time to time on a need basis. The management corporation will consist of all those who are the owners of units in the parcel to which the sectional plan relates. The registrar issues the certificate of registration for the corporation. The corporation will not rely on provisions of the Companies Act 2015. However, it will be regulated by the Sectional Properties Act 2020.

Duties of the Management Corporation

1. Insure and keep insured buildings and other improvements on the parcel against fire;
2. Effect such other insurance as it is required by law to effect or as it may consider necessary and pay the premiums in respect of any policies of insurance effected;
3. Keep the common property in a state of good repair;
4. Comply with any notice or order duly served by the county government or public body requiring repairs to, or work to be performed in respect of, the land or any building or improvements;
5. Control, manage, and administer the common property and do all things reasonably necessary to enforce the by-laws;
6. Do all things reasonably necessary to enforce any lease or licence under which the land is held and
7. Do all other things to ensure the property is well managed, including engaging the services of a property manager or any other persons they deem necessary.

The Management Corporation is mandated to establish and maintain a fund for administrative expenses sufficient for the control, management, and administration of the common property and for the payment of any insurance premiums and the discharge of any other obligation of the Corporation.

Who can hold a sectional title?

Under the new regime of the Sectional Properties Act 2020, the sectional title is registered to either an individual or any other body that has the capacity to own property. The legislation also provides for ownership of common areas and the use and management of common areas through the Management Corporation. Holding of the sectional title applies to both citizens of Kenya and foreigners. The only exception is that foreign nationals can only hold leasehold sectional titles for up to 99 years, while Kenyan citizens can hold both leasehold sectional titles and freehold sectional titles. Citizens and foreigners both have preemptive rights under the law to renew the lease of a sectional title when the lease expires. 

Differences between the old regime and the new regime.

The Sectional Properties Act 2020 allows individuals to have a sectional title under their name. The new regime has motivated lenders and financiers to offer credit facilities to the individual unit owners as they may now charge the individual units directly without requiring the consent of the developer and or the manager. Personal ownership was not possible in the previous regime due to the structure for ownership of units or apartments in Kenya, which was through sub-leases. A developer would form a management company under the Companies Act of Kenya after erecting the apartments on the land. The developer would then allot the buyer or homeowner a share in the management company. After all apartment units were sold, he would transfer the land on which the block of flats was erected to the management company.

Ideally, all purchasers would be shareholders in the management company. Therefore, they would be the beneficial owners of the land on which their homes were erected. Since the homeowners were holding sub-leases, they depended on the Mother Title, which is controlled by either the developer or the management company. Their sub-leases were borne from the Mother Title and could not exist independently of the Mother Title.

The table below provides a summary of the old regime versus the new regime.

Old Regime	New Regime
Registration of ownership was through sub-leases. There were no sectional titles.	Sectional titles are registered under individuals or other incorporated or unincorporated entities.
Developers would form a management company under the Companies Act of Kenya.	Developers apply for registration of the management corporation under the Sectional Properties Act.
Developers would allot shares of the management company to homeowners.	Homeowners are automatic members of the management corporation.
Registration of a sublease under the Sectional Properties Act 1987 would have to meet the threshold of 45 years.	Sectional titles will apply to leasehold properties with unexpired residue terms of not less than 21 years.
Only provided for the issuance of sub-leases for sectional units.	Sectional units are issued with a certificate of title (freehold property) or certificate of lease (leasehold property). The title shall include each unit’s proportionate share in the common property.
No standard plans were registered under the Registration of Documents Act (RDA).	There is uniformity in the sectional plans being prepared by a licensed surveyor and registration of the sectional plans with the  Land Registrar.
Where the owners exceeded 50, a public company had to be incorporated due to the provisions of the Companies Act of Kenya.	The provisions of the Companies Act 2015 do not apply; thus, there is no limitation on the number of owners.
References to local authorities were the approving entities, and registration was pegged on the Repealed Registered Land Act.	County governments approve Sectional Plans and Units, and registration will be effected under the Land Registration Act, 2012.
The management company had no internal dispute resolution mechanisms to handle disputes between owners of the units or disputes relating to the enforcement of by-laws.	The management corporation is given powers to constitute an Internal Dispute Resolution Committee on a need basis to hear and determine disputes relating to the enforcement of by-laws.
Appeals to any court from a tribunal ruling were barred except for an error of law.	An aggrieved party can appeal the decision of the Dispute Resolution Committee to the Environment and Land Court with regard to the enforcement of by-laws.
Disposition of common property or any part of it by transfer or lease, grant of easement or any other dealing, approved by unanimous resolution of the Corporation, was permitted. A meeting of the corporation was not mandatory for the approvals of the dispositions and dealings affecting the common property.	Corporations cannot make by-laws that permit a material change in the use or density of common properties without the approval of the relevant county government. In addition, only the Corporation is to grant a lease to an owner of a unit for the exclusive use of an area or areas of the common property following a unanimous resolution during a mandatory meeting of the corporation.

 

The old regime faced the following difficulties:

1. Since the sub-leases are usually set to 99 years, a developer would sometimes fail to include a renewal clause in the sub-lease. Even where such a renewal clause was included, a developer would fail to renew the sublease under the Mother Title, jeopardising the homeowner’s title. 
2. Developers who took loans to complete construction would sometimes fail to discharge the units or apartments sold from the banks. Where a unit was not discharged from the bank, innocent buyers were left vulnerable to repossession of the unit, where the developer defaults on repayment of the loan to the bank.
3. There are instances where the company that owns the Mother Title is erroneously wound up, leaving homeowners unable to renew their sublease on expiry.
4. A developer would sometimes refuse to exit the management company once all the units are sold and continue to collect service charges set to very high rates without consulting the unit owners.

The remedies brought by the new regime:

1. The establishment of a corporation that comprises all homeowners of units within an estate development to run the estate affairs and common areas. Developers no longer have to allot shares of the Corporation to homeowners and have no control over service charges and management of the property.
2. The establishment of a dispute resolution committee that determines disputes with the development between unit owners makes settling conflicts among unit owners easier and cheaper.
3. Introduction of sectional titles registrable for freehold properties or leasehold properties of over twenty-one years, regardless of the nature of the title. The new law has reduced the leasehold period to twenty-one years from the forty-five years required under the repealed law.
4. Under the repealed law, an owner renting out their unit was required to disclose the amount of rent chargeable to the unit and pay a deposit to the Corporation for maintenance, repair and or replacement of the common property. This is not a requirement under the new law, which recognises the autonomy of an individual unit owner to deal with their individual unit as they please, independent of the common property and the mandate of the Corporation.

Compliance and Penalties

Compliance with the Sectional Properties Act 2020 provisions is compulsory, and the penalty for non-compliance is a fine not exceeding Kenya Shillings Two Hundred and Fifty Thousand (KES 250,000). The owner of an existing building rented for residential or commercial purposes to a tenant who is not a party to a purchase agreement and has no registered section plan is restricted from selling the units in the building until a sectional plan relating to the building is registered. Failure to abide by this law attracts a fine not exceeding twenty million shillings or imprisonment for one year.

Conclusion

The Sectional Properties Act 2020 has simplified the registration process of sectional properties and created an enabling environment for investors and property owners. It was designed to guarantee the rights of property owners by conferring absolute rights to individual unit owners over their units and vesting in them the reversionary interests. The new regime has given the unit owners greater power and liberty to deal with their units as they please. Their transactional ability to access financing and dispose of their units is anticipated to be dramatically expanded. The new laws will also motivate lenders and financiers to offer credit facilities to the individual unit owners as they may now charge the individual units directly without requiring the consent of the developer and or the manager.