MILESTONES

Technovations are little known intellectual property rights contained in the Industrial Act Kenya Part XIV. The same provision is contained in the intellectual property laws of most developing nations and is also contained in WIPO here. Though little known, they do provide for a reward and compensation mechanism for employees who go outside their call of duty. A technovation is granted when an employee proposes a technological solution to his employer for its own use. The distinguishing requirement is that the employer must not have considered that solution for use and that the job description of the employee proposing the solution did not entail proposing such solution.

We won our client the first win in a case of this nature. The employer appealed, however the same decision was sustained on appeal. The decision is available here and a synopsis of the decision is available here.

We have acted for a group of investors who invested in holiday home time share units at the Kenyan coastal region. The developer sold a time share unit concept to a section of investors promising them ownership of time shares in luxury holiday villas at the coast, if they paid a one time purchase premium. On payment of a one off premium, the investors were guaranteed holiday weeks for a period of 999 years, or so they thought!

The investors paid their end of the premium and the developer put up the beautiful villas at the coast. The developer however reneged on his promise by refusing to give the investors access to the premises despite them fully paying the contractual price.

We thought that this action was against the spirit of the constitution where Article 40 prohibits arbitrary deprivation of property. We felt the developer had acted contrary to the Constitution and acted in total contravention to the investors ‘constitutional right. We are currently battling the case at the Constitutional Court for several orders including restitution.

The Kenyan constitution now allows for dual citizenship if one qualifies. The main ways of acquiring Kenyan citizenship include by birth and by marriage. We acted on behalf of a foreigner who had been born in Kenya, schooled in Kenya and eventually married a Kenyan. While in Kenya she worked in the banking sector and eventually set up her own business. A clear case for the award of citizenship you would think.

However, the state failed to grant her citizenship for over a decade prompting us to file a judicial review case where we sought an order of mandamus that is, for the state to declare her a citizen. The Judicial Review division agreed with us and ordered the state to issue citizenship documents to the applicant.

Corporate succession planning and corporate governance

In 2022, we held a stakeholder conference for p[privately held family businesses in the tea sector with a bid to equip them with corporate succession planning skills. Family businesses including those in the tea sector face the unique need of having corporate structures and documentation that will support succession planning and professional management.

We are acting for a number of tea factories to help them streamline their governance structures so as to support corporate succession planning and attract investment.

Derivatives and futures

With fluctuating global tea prices, what type of commodities contracts should tea factories be getting into?

Global employment contracts

We acted for a Chinese company that had recruited a Chinese national in China but who worked for a brief period in Kenya in a project. The employment contract designated the place of arbitration as Beijing, the labour laws of China as the applicable law and the language of the dispute as Chinese.

We lodged an objection based on choice of law, choice of jurisdiction, place, seat and language of arbitration; when the claimant sought to file the matter in Kenya. 

The distinction in this case, is that both litigants were Chinese and had signed the contract in China. The contract was mostly performed in China and payment of salary and benefits was in Yuans. The claimant only came to Kenya briefly as part of the project.

We acted for a country manager of an East African airline who had not only been wrongfully terminated by her employer but was also defamed such that she couldn’t secure another job. The employer decided to post her profile in form of paid advertisements, on all the East African dailies for 30 days.

Furthermore, the employer posted her profile on www.dontemployme.com. The website listed rapists, murderers and other criminals. The result of such a posting was she was unable to secure another job. Other than getting compensation for wrongful termination, the court also awarded her general damages of Kshs. 5 million as defamation damages.

Mental health in the workplace

How far is too far?

We acted for an employee whose employers ‘toxic work environment and constant abuse, triggered depression in the employee. The employee ended up hospitalized with depression and anxiety as a direct result of the employer’s abuse. The employer’s abuse ranged from discrimination, to degrading and inhuman treatment as well as practising unfair labour practices. We felt this was against the spirit of the constitution and filed a constitutional petition to not only have the mistreatment by the employer declared as unconstitutional, but to also recover damages for constitutional torts.

False mental incapacity diagnosis and incarceration leads to a constitutional petition

We acted for a client whose business partners conspired to have him locked up on false allegations of mental incapacity. The business partners conspired with the psychiatrist to give a false diagnosis and to forcibly have him institutionalized. As this was going on, the business partners sought to deprive him of his shares using “mental capacity “as the reason. The client had while incarcerated requested for access to an independent medical opinion and legal representation to no avail. He got several third party opinions that gave him a clean bill of health. He filed a constitutional petition for recovery of damages.

Intellectual property

Expungement proceedings

We represented a financial services company in pursuing an expungement proceeding against a competitor whose trademark was similar and was likely to cause confusion. The competitor, seeking to ride on the goodwill of our client sought to register a similar trademark for the same class of goods. Our client had spent a lot of money on research and marketing its brand.

Plagiarism

We represented a fin-tech company in a plagiarism case by a competitor. While the competitor had a different brand name, it copied the website content word for word and even copied the diagrams. We filed a plagiarism case where we sought orders for injunction and award of damages. The parties reached an out of court settlement in the matter.

Registration of utility models

We have registered several utility models including a remote weighing system and a shopping cart system.

Commercialization of intellectual property

Our client successfully got funding for development of a software solution he held intellectual property rights on. We advised on intellectual property rights, secured the same, advised on valuation, formation of joint venture company, assignment of copyright, technology transfer agreement and shareholders agreement.

Data privacy

We have acted for several entities in securing data privacy compliance. We have helped them install organizational and technological measures, conducted data privacy audits, data privacy trainings and data privacy certifications. We have worked with several entities ranging from education sector, media houses, schooling, professional services and others. 

Corporate finance

Formation of joint venture

We acted for a local company that sought to issue equity investment to a South African investor. We advised the client on key valuation issues and were able to secure a higher valuation for the company by advising on key legal issues such as licenses and intellectual property rights which had not been considered in the initial valuation.

We helped the client to align its practices and organizational policies as the investor was an impact investor in climatic change and environment. We helped our client draft and formulate key policies and helped it to align to the investor needs.

We acted for the client in review of the term sheet and negotiations on the same.

We then helped form the joint venture company and advised our client on key governance issues. We reviewed the shareholders ‘agreements and protected our client’s interests.

Formation of a continental joint venture company

Our client innovated a viable system that could be replicated across several regions in Africa. We helped her secure intellectual property rights in Kenya and other countries where the project would be effected.

The client did collaborate with a partner in Tanzania and we advised on key contractual provisions that would secure her interests including choice of law, choice of jurisdiction and place of dispute resolution. Though her partners were Tanzanian we advised that Kenyan law would apply in resolving the dispute.

We are advising on collaboration agreements and partnership agreements with potential investors in each of the project jurisdictions.

Our impact in family businesses has been felt by many family owned businesses that we have worked with. Family owned businesses face a unique need given that they cannot quite ignore the familial aspects of the business. If the familial relationship goes south, so does the business. This is why it is important to put in the right structures, policies and documents to govern both the business and the family.

We have offered family governance consultation which includes setting up of the family business constitution, family dispute resolution policies, family employment policies and family councils. We do advice families to structure the governance of their business in a way that manages the family business. That is why we have a special type of bespoke entity governance for family businesses. 

Formation of family trusts

A number of families own assets, however no family wants to get embroiled in property disputes. We have helped a number of families avoid this trap by formation of family trusts. 

It entails firstly, formation of a special entity company that considered the unique nature of family relationships and has a “trust “element to it. For example, how are shares transferred in this entity? Being a family company, the ideal is to have a “lock-in “clause or a “pre-emptive right “clause.

Once this company is formed then the family’s “crown jewels” that is, the targeted assets are transferred into this entity. The process is tax exempt!

The advantage of having this structure, is that it allows for the family assets to be owned perpetually by the family trust company therefore there can be no third party interests. Disputes are solved through alternative dispute resolution methods.

Emerging issues in wills-digital assets

We adviced a client whose main asset was a digital asset. A technology that was registered in his company’s name. We adviced on a will to bequeath his share to his family. We also advised that he files a technology transfer agreement and other material disclosures with the executor, so as to ensure continuity of the technology.

We have offered bespoke corporate governance training in the following areas:

• Mediation:- we have helped our clients establish effective mediation systems and structures that help them save relationships, save face and save money. Before a potential dispute escalates, using our mediation system and process will help your entity avoid further escalation for a win-win solution. It is not about backing out of a dispute but it is about attaining a workable solution to meet your objectives

• Board advisory services:- We help our client’s boards to perform better by offering our board advisory services. One of our biggest value additions, is by helping our clients respond to the changes in the legal environment to attain a competitive edge. We do provide this at the beginning of the financial year and not only provide the legal environment changes but we also provide an analysis of how these changes could affect your organization. We advice the boards on how to adapt to these changes to attain a competitive edge.

• Corporate succession planning:- We advise our clients to prepare for succession planning whether this is triggered by a leadership exit, retirement or other reasons. Do you have a corporate succession plan? Does your articles of association and shareholders agreement provide for clarity on exits and transitions? We understand that corporate succession planning is not just about the law, this is why we have partnered with other experts in this area.

• Bespoke training:- We have curated bespoke trainings for our clients using our Corporate Law For Non-Legal Managers Handbook. We are able to provide a bespoke training based on your needs.

• Acted for a shareholder in a constitutional petition against a regulator in the financial services market. The regulator sought to wind up the licensed company without giving the shareholder information on the statement of affairs and the net assets of the company. This was contrary to the shareholder’s constitutional rights to property and information.

• Acted for a shareholder in a jiudicial review against the Office Of The Receiver to stop further winding up proceedings initiated by a regulator, until the client’s constitutional petition is finalized.

We have participated in a number of consultancies and research areas that have had a positive impact on the business environment. These include:

1. Climatic change, carbon credits and diversified income

2. Intellectual property

3. Artificial intelligence

4. Sports & entertainment law

5. Corporate finance derivatives

6. Offshore company formation

7. Tax avoidance

8. Choice of law contracts