Insights
7 September 2026
Employee Stock Ownership Plans (ESOPS) and the Law in Kenya
Employee Stock Ownership Plans (ESOPs) have become an increasingly important tool for attracting and retaining talent, rewarding performance and aligning employees with long-term business growth. But behind the promise of ownership lies a complex framework of corporate approvals, share structures, vesting rules, tax obligations, regulatory requirements and employee rights. This Litigation Practice Note examines how ESOPs work, the legal and tax issues businesses must navigate, and the lessons emerging from recent Kenyan case law.
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6 September 2026
When “May” Becomes a Duty and “Shall” Becomes Discretionary
What is the legal meaning of “shall” and “may” in legal interpretation? The words “shall” and “may” do not always carry an absolute or fixed meaning. Courts generally consider the context, legislative intent, purpose of the provision, statutory scheme and consequences of competing interpretations when determining whether a provision is mandatory or directory. This Litigation Practice Note examines the principles governing the interpretation of “shall” and “may”, with particular reference to leading Kenyan jurisprudence.
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23 August 2026
Restraint of Trade in Kenya vs South Africa: What Employers and Employees Need to Know
A restraint of trade can determine whether an employee is free to work for a competitor, or whether an employer can legally stop them. This comparative analysis breaks down the law in Kenya and South Africa, including non-compete clauses, trade secrets, goodwill, public interest, burden of proof, garden leave and the limits of post-employment restraints.
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23 August 2026
Unregistered Foreign Companies Can Sue in Kenyan Courts
The Court of Appeal has settled a long-running dispute over whether an unregistered foreign company can sue in Kenyan courts. The decision clarifies Section 974 of the Companies Act, the meaning of “carrying on business” in Kenya, and when non-registration can—and cannot—defeat a foreign company’s claim.
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15 August 2026
The Teachers and the TikTok Classroom in Kenya
TSC Circular No. 14/2026 has put teachers’ TikTok and social media activity under renewed scrutiny. Here is what Kenyan law says about teacher conduct, learners’ privacy, parental consent, freedom of expression, data protection and disciplinary action.
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15 August 2026
The Law on Cross-Border Insolvency in Kenya
Cross-border insolvency in Kenya is governed principally by the Insolvency Act 2015 and its Fifth Schedule, which incorporates the UNCITRAL Model Law on Cross-Border Insolvency. This article examines the legal framework for recognition of foreign insolvency proceedings, the role of foreign representatives, the concept of Centre of Main Interests (COMI), the public policy exception, protection of Kenyan creditors, the effect of recognition on ongoing proceedings and enforcement, and the treatment of claims by the Kenya Revenue Authority. Drawing from key Kenyan decisions including CMC DI Ravenna, Zarara Oil & Gas, HP Gauff Ingenieure and Benisa Limited, the article provides practical insights for creditors, insolvency practitioners, companies and lawyers dealing with cross-border insolvency matters in Kenya.
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15 August 2026
Contradicting Court of Appeal Decisions on Statutory Power of Sale: Teleposta v City Finance
Two recent Court of Appeal decisions—Teleposta Pension Scheme Registered Trustees v Intercountries Exporters Limited [2024] KECA 870 and City Finance Limited v Nyanja Holdings Limited [2026] KECA 106—provide conflicting answers on the protection afforded to an innocent purchaser who acquires land through a statutory power of sale where the chargor’s underlying title is subsequently found to be defective. This article examines the apparent contradiction and its implications for purchasers, lenders, borrowers and property lawyers in Kenya.
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15 August 2026
When General Damages Might Be Awarded for Breach of Contract
Can a claimant recover general damages for breach of contract in Kenya? The general rule is that they cannot. But the courts recognise a narrow exception where the defendant's conduct is oppressive, high-handed, outrageous, insolent or vindictive. This Litigation Practice Note examines the settled position, the exceptional circumstances that may justify an award, the distinction between general, special and nominal damages, and the pleading and evidentiary requirements practitioners must satisfy.
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15 August 2026
The Procedural and Compensatory Framework for Workplace Injuries in Kenya
The Work Injury Benefits Act, 2007 establishes a structured process governing reporting, medical treatment, compensation, assessment of disability, objections, appeals and enforcement. This Litigation Practice Note examines the procedural and compensatory framework under WIBA, including the statutory deadlines employers and employees must observe and the principles established by the Supreme Court and Court of Appeal.
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14 August 2026
Can a Company Sue Without a Board Resolution? Understanding Corporate Authority to Litigate in Kenya
Can a company file a suit in Kenya without producing a board resolution? The Court of Appeal in Arthi Highway Developers Ltd v West End Butchery Ltd settled the position that a company is not required to file a board resolution alongside its plaint. This Litigation Practice Note examines corporate authority to sue, Order 4 Rule 1(4), the burden of proof, and why a preliminary objection is generally not the proper way to challenge a company's authority to institute proceedings.
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2 August 2026
When does a data processor become a data controller?
What happens when a contractor processes personal data outside your instructions? Under Kenya's Data Protection Act, they may cease to be a data processor and become a data controller, assuming direct legal liability. This article examines the landmark Christine Ochola determination and explains why every service agreement should contain a robust Data Processing Agreement, together with the practical lessons businesses need on controller-processor relationships, consent, liability, and regulatory compliance.
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2 August 2026
You Cannot Use Someone's Name on Your Website Without Their Consent
Can a business publish a professional's name, qualifications, and profile on its website without their permission? The Office of the Data Protection Commissioner says no. This article examines the KES 1,012,500 decision against Brainstorm Insurance Brokers, explains why "web developer error" is not a legal defence, and outlines the practical lessons every business should know about website content, consent, and data protection compliance under Kenya's Data Protection Act.
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2 August 2026
What Every Employer Must Know About Former Employee Image Rights Under Kenya's Data Protection Act
Can an employer continue using a former employee's image to promote its business after the employment relationship has ended? The High Court and the Office of the Data Protection Commissioner say no. This article examines the landmark Moja Expressway decision, explains why employment-based consent does not survive termination, and outlines the practical lessons every employer, HR professional, and marketing team should know about image rights and data protection compliance in Kenya.
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2 August 2026
The Data Controller-Processor Relationship Explained: Lessons from a KES 450,000 ODPC Decision
Who bears liability when a data processor acts outside a controller's instructions? The Office of the Data Protection Commissioner's decision in Christine Ochola v. NSSF & Off Grid Concepts provides a landmark interpretation of the controller-processor relationship under Kenya's Data Protection Act. This article examines the KES 450,000 determination and explains the practical lessons every organisation should understand about consent, liability, processor agreements, and data protection compliance.
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2 August 2026
“Human Error” Cost St. Luke’s Hospital KES 525,000: What Every Healthcare Provider Must Know About Patient Data Sharing
A hospital was ordered to pay KES 525,000 for unlawfully sharing patient data. Learn the key healthcare data protection and consent lessons under Kenya's Data Protection Act.
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31 July 2026
Why Event "Terms & Conditions" Are Not Valid Consent for Commercial Image Use in Kenya
Can an event organiser use your photograph to market future events simply because you attended? The Office of the Data Protection Commissioner says no. This article examines the KES 300,000 decision against Goodtimes Africa (Blankets & Wine), explains why general terms and conditions do not amount to valid consent, and highlights the practical lessons every event organiser, brand manager, and marketer should know about commercial use of personal data under Kenya's Data Protection Act.
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