LEGAL SERVICES KENYA: BEFORE SIGNING THAT EMPLOYMENT CONTRACT

LEGAL SERVICES KENYA: BEFORE SIGNING THAT EMPLOYMENT CONTRACT: The Employment Act of Kenya provides that a contract of service for a period equivalent of three (3) months or more should be in writin...

CHANGE OF USER PROCESS IN KENYA

Change of user is a very sensitive aspect of Land in Kenya. It is advisable that prior to acquiring a piece of land, to know the user of the property especially for developers as the process itself can prove to be very expensive and time consuming. Most people buy agricultural property with the intention of developing it for real estate purposes without knowing its use, this can be very detrimental as one cannot be able to develop the property without a change of user approval.

However, today there are sellers of property who go an extra mile to sell properties with the Change of user approval already obtained but very few hence it is always advisable to exercise due diligence prior to purchasing any property.

The whole aspect of change of user is a mechanism used by the government to control land use and development in Kenya, as we all know the government is the ultimate custodian of property in Kenya. Failure to obtain a Change of user approval can lead to the government repossessing the land.

Below are the various steps that need to be taken to obtain a Change of user approval in Kenya:

• Application using Form PPA1(in triplicate) duly signed by a registered physical planner.

• Notice is then published within fourteen (14) days inviting objections from the public.

• Preparation of the planning brief by the registered physical planner which is then submitted to the governing county government physical department  for approval together with payment.

• The application is reviewed by the relevant County government and if the changes sought are not in contravention to any statute or planning principles, an approval is issued-Form PPA2.

• The form PPA2 is further submitted to the National Land Commission for approval.

• The PPA2 is then circulated to the Director of Survey and Director of Physical planning.

• Next step is organizing for a site report through a licensed surveyor who submits comments to the National Land Commission on behalf of the Director of Survey and Director of physical planning.

• Obtaining a valuer for Land rent enhancement.

• The property is then re-surveyed and a new deed plan is obtained.

• The new deed plan together with the old Title to the property is submitted to the National Land Commission, where the surrender of Title is prepared and signed by the land owner.

• New Title is prepared indicating the new user of the property and submitted for registration.

It is always important to engage professionals in this process. If you wish to obtain a change of user approval in Kenya please do not hesitate to contact us on legalserviceskenya@gmail.com.

APPLYING FOR A WORK PERMIT IN KENYA

A work permit is an official document giving a foreigner permission to take a job in a country. In Kenya, Work Permits are issued by the Department of Immigration to any foreigner wishing to engage in employment in Kenya whether in gainful employment or voluntary service. 

It is illegal for any foreigner to work in Kenya without a valid work permit. The Law governing issuance of work permits in Kenya is the Kenya Citizenship and Immigration Act, 2011 of the Laws of Kenya. 

The Act provides that the Director shall issue a permit of the required class to a person who is not a prohibited immigrant or inadmissible person, who has made an application in the prescribed manner; and satisfied the Committee that he has met the requirements relating to the particular class of permit.  

Work permits in Kenya are issued in various classes,below are the different classes:

Class A

This permit is issued to persons who intend to engage in prospecting for minerals or mining.

Requirements.

◦Obtain or is assured to obtain the necessary licenses and registrations.

◦Sufficient capital or resources for investment. 
◦In an application for renewal of a permit a current license held for prospecting minerals and copy of PIN is required.

Class B

This work permit is issued to persons wishing to invest in Agriculture and Animal Husbandry. 

Requirements.
◦Proof of leasehold interest in land for the purpose.
◦Proof of capital available for the purpose.
◦Clearance from relevant bodies. 
◦In an application for renewal of the permit a current license held for prospecting minerals and copy of PIN is required.

Class D

This work permit is issued to a person who is offered specific employment by a specific employer who is qualified to undertake that employment. 

Requirements.

◦Copies of academic/professional certificates together with the Curriculum Vitae.◦Evidence that the organization failed to fill the vacancy from the local labor market.◦Dully filled Form 25, signed and sealed by the company.

Class G

This work permit is issued to investors in specific trade, business or consultancy.

Requirements.

◦Documentary proof of capital to be invested/already invested being a minimum of  US dollars  100,000 or its equivalent in any other currency.
◦Certificate of incorporation of the Company
◦Copies of personal and company PIN (Personal Identification Number) if business is running.
◦In an application for renewals one should provide audited accounts for previous 2 years and a certificate of tax compliance from the Kenya Revenue Authority.

Class I

This work permit is issued to a member of missionary society approved by the Government of Kenya and whose presence is beneficial to the country.

Requirements.

◦A copy of Certificate of Registration of the organization. 
◦Academic and professional certificates of the applicant. 


Class K

This is a residence permit issued to persons who have an assured income derived from sources outside and undertakes not to accept paid employment of any kind.

Requirements.

◦Documentary proof of assured income.

Class M

Work permit issued to Conventional Refugees.

Requirements.

◦Recognition letters from UNHCR and Department of Refugee Affairs.

Note: Section 41 (2) of the Act provides that a person to whom a work permit of class M is issued may engage in any occupation, trade, business or profession.


OTHER REQUIREMENTS

◦Dully filled and signed application form (Form 3).
◦Cover letter from employer/self/organization depending on the class (as applicable)
◦Copies of the National Passport.
◦Two coloured Passport size photographs.

PROCEDURE:

An person applying for a work permit should compile all the required documentation together with the prescribed fees applicable for the specific class and present them to the Department of immigration.

The prescribed fees for each class is as below:

CLASS A	MINING	10,000	250,000 FEE P/A
CLASS B	AGRICULTURE	10,000	100,000 FEE P/A
CLASS D	EMPLOYMENT	10,000	200,000 FEE/PA
CLASS G	INVESTORS	10,000	100,000 FEE/PA
CLASS I	RELIGION AND CHARITY	1,000	5,000 FEE/PA
CLASS K	ORDINARY RESIDENTS	10,000	100,000 FEE/PA
CLASS M	REFUGEES	GRATIS/FREE	GRATIS/FREE

Invalidation of a work or residence permit

The Act provides that where a permit has been issued to a person, and that person fails, without the written approval of the Director, to engage within ninety days of the date of issue of the permit or of that person’s entry into Kenya, whichever is the earlier, in the employment, occupation, trade, business or profession in respect of which the permit was issued or take up residence; ceases to engage in the said employment, occupation, trade, business or profession; or engages in any employment, occupation, trade business or profession, whether or not for remuneration or profit, other than the employment, occupation, trade, business or profession applied for, the permit shall cease to be valid and the presence of that person in Kenya shall be unlawful, unless otherwise authorized. 

If you wish to obtain a work permit in Kenya please do not hesitate to contact us on legalserviceskenya@gmail.com.

REGISTRATION OF NGOs IN KENYA

NGOs  in Kenya are generally governed by the Non-Governmental Organisations Co-ordination Act, 1990. The Act defines a Non Governmental Organisation as 'a private voluntary grouping of individuals or associations, not operated for profit or for other commercial purposes but which have organized themselves nationally or internationally for the benefit of the public at large and for the promotion of social welfare, development charity or research in the areas inclusive of, but not restricted to, health, relief, agriculture, education, industry and the supply of amenities and services.'

Registration of NGOs is basically expressed under Part III of the Act. The steps involved in the Registration of an NGO in Kenya is as stipulated below:

• Name Search: This is done by filling Form 2 and upon payment of the application fees, the name search is conducted and once approved the name is reserved for a period of thirty (30) days.

• Once a name has been reserved the next step is filing a formal application for registration, this is done by filling Form 3 (in triplicate) in original forms to be submitted to the executive director of the Bureau in the prescribed form.

• A duly filled Form 1, just one copy basically stating the contact person of the organisation.

• Copy of National Identity Cards/Passports and PIN Certificates for the proposed officials and Board members.

• Two (2) colored passport size photographs on a white background (2 by 2 inches) of the proposed officials and board members with their names and organization written at the back.

• For Kenyan citizens a Copy of a police clearance certificate of Good Conduct including the finger prints and receipts and for foreigners a notarized clearance certificate from their Country should be provided. (not more than six(6) months old).

• Two (2) Copies of the Constitution of the proposed NGO, duly signed  by the proposed officials and two board members.One of the proposed officials must also execute each page of the Constitution.

• Proposed One(1) Year budget of the NGO.

• A forwarding letter addressed to the Executive Director requesting for registration.

• It is a requirement that for foreign based NGOs, at least 1/3 of the board members must be Kenyan Citizens.

• Minutes authorizing the filling of the application with a specific agenda and resolution to register the organization as an NGO with the NGOs Board. Election of the interim officials MUST form part of the Agenda.

• Processing fees must accompany the application which is usually Kshs. 16,000/- for National NGOs and Kshs. 30,000/-for foreign NGOs.

Every Non-Governmental Organization registered is then issued with a certificate of registration which serves as conclusive evidence of authority to operate throughout Kenya or such parts of the country as are specified therein. 

Registration however is not guaranteed, the Board as provided under the Act can refuse to register an NGO for the following reasons:

a) its proposed activities or procedures are not in the national interests; or

b) the applicant has given false information in the application; or

c) it is satisfied on the recommendation of the National Council Organizations, the applicant should not be registered. 

NOTE: For any enquiries on the same please do not hesitate to contact us on legalserviceskenya@gmail.com

REGISTRATION OF A SOCIETY IN KENYA

The registration of a Society in Kenya is governed by the Societies Act (Cap 108) of the Laws of Kenya.

The requirements for registration of a Society in Kenya are as below:

• Name search;
• Number of members in the Society please note that the least number of members required to form a society are at least ten (10);
• Objects of the society;
• Societies application forms which are Form A and B being the application for registration of a society and notification of registered office and address of a society respectively;
• Societies Constitution specimen;
• Notice of the situation of the office and of the postal address of the society;
• Names, postal addresses and occupation of the secretary, chairman and treasurer;
• Application fees.

Registration procedure:

The Societies Act (Cap 108) Laws of Kenya requires that every society shall make an application to the Registrar within twenty eight (28) days after formation thereof for registration or exemption from registration.

For registration of a society, a name search has to first be conducted to ascertain the availability of the proposed names of the society, the applicants have to fill forms A and B being the application for registration of a society and notification of registered office and address of a society respectively, a specimen constitution of the society is then prepared. Once done all the necessary documents are submitted to the Registrar of society together with the application fees.

Upon application being made in the prescribed manner for registration of a society, the Registrar shall, register the society by entering in the register of societies, kept for the purpose, the prescribed particulars and the date of the entry and issue to the Society a certificate of registration. 

Registration is however not guaranteed, the Registrar may reject an application for various reasons such as if he has reasonable cause to believe that the society has among its objects, or is likely to pursue or to be used for, any unlawful purpose or any purpose prejudicial to or incompatible with peace, welfare or good order in Kenya, or that the interests of peace, welfare of good order in Kenya would otherwise be likely to suffer prejudice by reason of the registration of the society; or  the terms of the constitution or the rules of the society are in any respect repugnant to or inconsistent with any law; or he is satisfied that the application does not comply with the Societies Act (Cap 108); or he is satisfied that the society does not exist; or the name under which the society is to be registered is identical to that of any other society which either is existing or has existed, or of any society whose application for registration has been refused or so nearly resembles the name of any other society as, to be likely to deceive the public or the members of either society as to its nature or identity; or is, repugnant to or inconsistent with any law or is otherwise undesirable. 

If you wish to register a Society please do not hesitate to contact us on legalserviceskenya@gmail.com.

WHY YOUR COMPANY SHOULD HAVE A SHAREHOLDERS AGREEMENT

A shareholders Agreement is a Contract between the Shareholders in a Company, it is a private document that does not need to be filed at the Companies registry. It basically governs the relationship between shareholders, however is not a legal requirement to have one. 

A well drafted shareholders' agreement can act as a safeguard to Shareholders. 

Here are the reasons why a Company should have a Shareholders Agreement:

1. Cases of fallout

This is the most important reason why a Company should have a Shareholders' Agreement. Shareholders of a Company do fall out and disagree on a number of issues regarding the running of the business of the Company, one may not foresee this during the formation of a Company. Having a shareholders agreement minimizes any potential for business disputes between owners and provides a framework for conflict resolution. 

2. Signifies Company stability

A shareholders Agreement signifies the stability of a Company to potential partners to the Company, and hence can help in raising finance from Banks or Creditors.

3. Protection of Minority Shareholders

A shareholders Agreement helps to protect the interest of minority shareholders in a Company and their investment.It provides better protection to shareholders as it can only be amended with the Agreement of all shareholders.

4. Shareholders approval 

A shareholders agreement can help in safeguarding the interests of shareholders by stipulating that certain decisions by the Board of Directors can only be made with the approval of shareholders. This helps in safeguarding the interests of Shareholders and helps in prevention of board mismanagement.

5. Share Transfer Control

A Shareholders Agreement can help in control of transfer of shares by stipulating the right of first refusal.

The Shareholders Agreement should contain the following clauses:

• Running of the company's day- to-day affairs, procedure for appointing, removing and paying directors; area of business of operation by the company.
• Transfer of shares, how the shareholders can be able to transfer shares.
• Protection of Minority Shareholders clause.
• Dividends, how and when they should be paid , percentages.
• Dispute/Conflict resolution clause.
• Restrictions clause, to help in protection of the business.
• Duties and responsibilities of shareholders.
• Capital contributions clause.

These are just a few of the reasons why a Shareholders’ Agreement is important. If you wish to discuss a Shareholders’ Agreement for your company, please do not hesitate to contact us on legalserviceskenya@gmail.com.

IMPORTANT FEATURES OF A LIMITED LIABILITY PARTNERSHIPS ("LLPs")

A Limited Liability Partnership combines the features/elements of a Company and the more traditional partnership, this is because it offers limited liability thus protection to its partners the same as a Company does to its shareholders.

The important features of a Limited Liability Partnership are as below:

• LIMITED LIABILITY

This is an important feature of an LLP as the liability of the partners is Limited, hence a partner in the LLP is not personally liable directly or indirectly for obligations  in the partnership, however individuals are liable for their own wrongful acts or omissions.This defers from the general partnerships where liability of partners is usually unlimited.

•  MEMBERS

A limited liability partnership must have at least two partners and one manager. The manager must be a natural person and above the age of eighteen (18) years.

• SEPARATE LEGAL ENTITY

The business usually acquires a corporate identity distinct from its members. This is a great advantage over the general partnership as it can enter into contracts in its own name, hold property in its own name and it can sue and be sued in its own name.The death or exit of a partner does not affect the existence of the Limited Liability Partnership. 

• TAXATION

Taxation in a Limited Liability Partnership is usually on an individual level and not the entity level hence the members in a Limited Liability Partnership are  deemed self-employed and hence each partner will declare their profit and pay tax on their share of profit. 

NOTE: For any enquiries on the same please do not hesitate to contact us on legalserviceskenya@gmail.com