DISSERTATION: THE LEGAL PROTECTION OF TRADE SECRETS: AN ANALYSIS OF THE KENYAN PERSPECTIVE

 Definition

ABSTRACT

The Kenya Society has placed immense emphasis on tangible property such as land as a means of production and as a development mode. Intellectual property rights have hitherto been ignored. For long-standing public policy reasons, intellectual property laws have traditionally been intended to accomplish a balance between the need to support innovation and creativity and prevent unfair competition.

While the TRIPS Agreement was careful to specify the scope of information that is to be protected by the intellectual property laws of WTO-member countries, it did not detail all of the limitations that can be imposed on IPRs and thus a risk that individual countries will adopt trade secret laws that go further than is necessary to comply with the intent of the TRIPS Agreement.

The main objective of this study is to examine the extent to which interpretation and limitations imposed upon the trade secret law in Kenya have been incorporated with regard to Article 39 of the TRIPS Agreement. The data and information (methodology) pertaining to this study was obtained through documentary research. Relevant literature is from books, academic papers, journals, and the internet.

The findings of this study were that the extent of interpretation and limitations as per the article 39 of TRIPS Agreement was minimal in comparison with inadequacy in view of the legal regime that exists in the US. This research is of the conclusion that there is need to establish a Sui Generis system in the Kenyan system for regulation and protection of Trade secrets. This study will contribute to the field of intellectual property law in particular thus useful to develop further research, which could lead to eventual efficient strategies on protection of trade secrets.

Moi University, School of Law: August 2016
O.G.

COVID-19 Legal Update: What is a reasonable care for Employees Working from Home or Remotely?

By Messrs, B.N., O.G., and I.O.

In as much as the employers have the managerial discretion to undertake various strategies in ensuring the sustainability of their various businesses during this pandemic, it is highly expected that the rights of the employees are upheld at all times pursuant to Article 41 of the Constitution of Kenya including other reasonable enabling laws. The reasonable care for employees is interpreted as the specific duties and responsibilities by the employers to ensure the safety of its employees. 

However, the Employment Act, 2007 requires that the employment contracts state the place of work (see section 10(2) (f)) and it is highly likely that the majority of the employment contracts have such a provision. In situations where the employee has opted to work from home or remotely from work due to pandemics such as COVID19 outbreak, they are highly likely to be in breach of their contract and legal provisions as set out as a requirement by the employment Act not unless it is a result of the agreement between the employer and the employee. 

The duties that an employer has under the OSHA would extend to circumstances where such an employee renders services to the Company remotely from home. For purposes of the OSHA, the employee’s ‘workplace’ would be her/his home. Ordinarily, how the employer will ensure a healthy and safe working environment would depend on the sort of work that is being carried out from home and what equipment and assistance may need to be provided to employees by their employer. The specific duties of the employers are to ensure the safety, health, and welfare of employees at all times within the workplace (see section 6 of the Occupational Safety and Health Act).

The key duties applying to the working activity and workspace includes such as management and conducting all the work activities aimed at ensuring the employee has a reasonably practicable to uphold their safety, health and welfare, provision of safe systems of work that have been planned, organized and maintained; provision of assessment of risks and implementation of appropriate control measures and ensuring there are plans in case of any emergencies.

Additionally, the Responsibility for the health and safety at work pursuant to the OSHA 2007 rests with the employer notwithstanding whether they employee carries his/her duties from office or at home as agreed between themselves as noted above. It is therefore upon the employer to consult their employees and assure themselves that the employee is aware of the risks associated with working from home or remotely; that the assigned work activity or temporary space of work is suitable; that there is provided suitable equipment enabling work to be done; and that there are pre-arranged means of contact.

In addition to the OSHA, the Employment Act requires an employer to regulate the working time of its employees with due regard to their health and safety and to their family responsibilities. Employers are required to, as far as is reasonably practicable, provide a workplace that is free of risk to the health and safety of its employees and that this requirement would persist during the COVID-19 pandemic and the Lockdown subject, of course, to an employee actually working remotely from home. In the case of distant work, the employer shall consider suitable working time arrangements, special provisions concerning assignment and delivery of work, reporting requirements. Moreover, the employer is responsible for healthy and safe working conditions. It shall be considered carefully how to limit the options for the employee to change his working place at the employee’s discretion.

In the normal course, an employer may require their employees to sign an indemnity form in which they warrant, among other things, that their home office is safe. While the present circumstances are extraordinary, it would probably be appropriate for an employer to ask its employees to sign and return a warranty and indemnity form in relation to working remotely from home. 

However, it would probably also be prudent to take further steps under Section 6 (2)(c) of the OSHA to, inter alia, meets the requirement of “the provision of such information, instruction, training, and supervision as is necessary to ensure the safety and health at work of every person employed”, through appropriate information and instructions being given to employees working from home on how to avoid or limit the risks to their health and safety in the home working environment.

The employer is further responsible for providing the technical means for distant work and for ensuring that the employer’s property (i.e. the equipment provided to employees) is well preserved.

#KeepSafe

#CovidIsReal

Legal Procedure For Buying Land in Kenya

1.0 Conducting a Search at Ministry of Lands

Search with the Ministry of Lands at district or county headquarters to ascertain the true land owners and establish the presence of brokers and if the title has been charged or has a caveat, for instance, when it has been used to secure a loan, or there is a court order barring any transaction on the land.

A search costs Ksh520 and should be ready within two hours. A valid search should be no more than six months old.

2.0 Payment of Land rates

Visit the Local Council (municipal or county) to confirm any unpaid land rates which you will need to factor in when deciding the purchase price. Cost varies from county to county. In Nairobi, you will be required to have a certificate of clearance from the Nairobi City County, which costs Ksh7,500 and should be ready normally within two hours.

If there are prevailing unpaid land rates you would need to agree with the seller on who will settle them as the land cannot be sold (transferred) with outstanding land rates.

3.0 Land Map/Survey

Visit the local surveyor and purchase maps of the place, normally two, one drawn to scale (informally known as tracing or mutation) and another showing the neighboring farms, costing Ksh300 per map. You can buy these at the Lands Ministry but a surveyor is better and faster.

4.0 Verification of the Land

Armed with the map, the surveyor and the seller visit the land on the ground. Have a tape measure to confirm the dimension from the map drawn to scale. Make sure you see the beacons or replace the lost ones. Surveyors charge about Ksh1,000 per beacon. Make sure the bordering neighbors are in agreement with the boundaries.

5.0 Drafting a Land sale Agreement 

The law requires any land transaction to be in writing. It is very advisable to have a lawyer (though not a must). According to the tariff provided by the Law Society of Kenya, the lawyer should charge Ksh3000 if the land cost is Ksh1,000,000 and below and Ksh8,000 if the land value is above Ksh1,000,000. A lawyer’s cost is normally shared equally between buyer and seller.

Ensure that the spouse to the seller is present at this stage or at least the spouse is aware and agrees with the transaction to avoid later complications.

6.0 Post Agreement Transaction

According to the agreement, you may be pay in cash or installment. Ensure by the time you make the initial payment the title deed and other legal documents are in the custody of the lawyers. This is because the seller still owns the piece of land and may involve other transactions using the title deed, which may harm you financially.

7.0 Land Control Board

Book the Land Control Board (LCB) meeting. The LCB is a forum made of the Assistant County Commissioners (Previously called DOs) and the local village elders which meets once a month. They are the ones who give the final consent for the land to be sold. Their role is to protect the seller from self-destruction e.g. where a man is selling land without wife’s knowledge and they don’t have anywhere else to go or the land being sold is clan/community land. LCB costs Ksh1000.

However, there is a special Land Control Bond (SCLB), which involves only the Assistant County Commissioner and the two transacting parties instead of waiting for the main LCB that meets once per month. SCLB costs Ksh5,000 and may take two hours depending on the availability of the Assistant County Commissioner.

8.0 Land Transfer Process 

After all payments, the seller signs Land Transfer Forms which together with Consent from LCB, land search, clearance from county/ municipal council, passport photos, KRA PIN, agreement and old title deed are taken to the Ministry of Lands to change ownership. It costs Ksh5,000 to process new title which should be ready within two weeks.

9.0 Stamp Duty and Transfer Fees

You will need to pay stamp duty based on the value of land, i.e four percent for municipalities and two percent for reserves.

10.0Conclusion

After one week, the buyer should do another search with the Ministry of Lands to confirm that the land now reads his/her details.

 

UNDERSTANDING PERSONAL INJURY CLAIMS IN KENYA

If you suffer injury in an accident caused by someone else’s negligence (carelessness) you may want to seek recompense from them. You will therefore bring a personal injury claim against them.
Personal injury claims aim to make the party who caused the accident and your injury, pay you compensation for the harm they have caused you.

These claims include;
🚑Road Traffic Accident Claims
📝Accident at Work Claims
🚳Accidents in Public Places
⚕️Clinical (Medical) Negligence

A claim for personal injury will include:
✒️A claim for the pain of the injury itself,
✒️The suffering it causes and
✒️The manner in which it affects your day-to-day life.

- Calculating the Personal Injury Claim -
The claim for compensation may be settled in or out of court to decide who was at fault and/or how much compensation you will receive.

A Kenyan Lawyer (personal injury lawyer) can help you get the most out of your injury claim or lawsuit;

If your accident left you with any of the conditions below, you should definitely seek professional legal representation.

👉🏾Pain and Suffering
👉🏾Temporary Disability
👉🏾Permanent Disability
👉🏾Severe Injury

Disclaimer: This is a guide for general informational purposes only and does not constitute legal advice.

Sacco Societies Regulatory Authority (SASRA)/Frequently asked questions on Regulation of SACCOS in Kenya

What regulates SACCOs in Kenya?

The SACCO Societies Regulatory Authority (SASRA) is the primary regulatory body charged with licensing Deposit‑Taking Sacco Societies (Savings and Credit Co-operatives Societies) - DT regulation 2010 and authorizing specified Non Deposit taking saccos - NDTS Regulations 2021 in the Republic of Kenya.

The Sacco Societies Regulatory Authority (SASRA) is a statutory state corporation established under the Sacco Societies Act (Cap 490B) of the Laws of Kenya (the Act) which came into full operation upon the gazettement of the Sacco Societies (Deposit-taking Sacco Business) Regulations, 2010 (the Regulations 2010) on 18th June 2010. The principal mandate of the Authority under the Act as read with the aforesaid Regulations, 2010 has been to license Sacco Societies to undertake deposit-taking Sacco business in Kenya (popularly known as Front Office Service Activity or FOSA), and to supervise and regulate such Sacco Societies in Kenya among other things.

Are SACCOs regulated by CBK?

ii) CBK has a formal working partnership with SASRA to engage in continuous technical consultations to guide the licensing, regulation and supervision of deposit taking SACCO Societies.

How are SACCOs governed?

According to Part II of the SACCO Societies Act 2008 Kenya, an authority is established to regulate and manage SACCO societies. This authority is called SACCO Societies Regulatory Authority (SASRA).

How do SACCOs operate in Kenya?

Like banks, SACCOs accept deposits and make loans—but unlike banks, SACCOs are not in business to make a profit. Banks exist to make money for their stockholders, not for their depositors. SACCOs exist solely to serve their member-owners, and benefits are returned in lower loan rates and higher deposit rates.

Are all SACCOs regulated by Sasra?

SASRA's mandate allows it to regulate, supervise, and license all the deposit-taking Saccos in the country in accordance with the Sacco Societies Act of 2008. Before a Sacco is registered, it has to comply with all the SASRA regulations.

Can one join two SACCOs in Kenya?


Yes. As long as the said member shall belong to no more than one Sacco Society having similar objectives as mentioned above.

Which is best Sacco in Kenya?

STIMA SACCO SOCIETY LTD

Membership is open and any Kenyan citizen is eligible to join Stima Sacco regardless of his or her area of residence. Stima Sacco is currently ranked as the best performing Sacco in the country.

How many members can form a SACCO?


The number of members in the society (At least 10 members); The names, occupation and postal addresses of the Chairman, treasurer and secretary; Proposed Physical address of the society.

How do you manage a SACCO?

SACCO members are the owners and they decide how their money will be used for the benefit of each other. Savings and Credit Cooperatives are democratic organizations and decisions are democratically made. Members elect a board that in turn employs staff to carry out the day-to-day activities of the SACCO.

Does a Sacco have a Constitution?


Section 2 of the SACCO Societies Act defines a Sacco as a savings and credit co-operative society registered under the Co-operative Societies Act. A Sacco is therefore a co-operative society regulated under Part 2 of the Fourth Schedule to the Constitution.

How do you earn dividends in a SACCO?


Saccos pay dividends to all members with balances in deposits and share capital for a given financial year. Most Saccos pay their members' dividends after approval, usually done after the Annual General Meeting.

Which is the richest Sacco in Kenya?

Mwalimu National remains the wealthiest Sacco new Sacco Societies Regulatory Authority (SASRA) data shows.

Procedure for Registration of non-deposit taking saccos

1. Formal request in writing to the commissioner for cooperative development with intent for the formation of a non-deposit taking Sacco

2. Proposed Names for Search and approval

3. Objectives of the society

4. The number of members in the society ( at least 10 members)

5. The name, occupation and postal addresses of the chairman, treasurer and secretary

6. Proposed physical address of the society, address includes road, plot number, town and county

7. Constitution of the society

8. Sacco Registration Forms

Procedure for Registration of deposit-taking saccos

1. The Sacco has to provide a minimum core capital of Kshs 10 million as shown in their financial or through submission of bank statements

2. All directors and senior management will be subject to a fit and proper test vetting their moral and professional suitability to be on the board and to manage the Sacco Society Respectively.

3. A detailed four year business plan and feasibility study including projected financial statements.

4. Fill in and submit application forms to SASRA and required documents

5. If satisfied SASRA will issue a letter of intent, upon which the Sacco will be required to set up its business premises, put in place the management information systems and develop a comprehensive risk management framework.

6. Once the above is completed SASRA will conduct an onsite inspection within 30 days and if satisfied will issue a Letter of Compliance to the Sacco within another 30 days.

7. The body will then issue a License upon payment of the stipulated license fees.

8. The estimated time is 4 months for a Sacco that fully complies with all the licensing requirements. The license for deposit taking is renewable annually.