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:: The Legal System

Over View
Kenya has a well-developed legal system, partially inherited from its colonial past, with English common law forming the basis, combining with traditional customary law and elements of Islamic law in the realm of marriage and succession. Business enterprises range from limited companies of various forms, branch office registration, and partnerships.

Trusts are recognised and land law is a mixture of English statutes, Indian colonial laws and local codes. Statutes that govern the business and commercial area are:

  • The Companies Act,
  • The Insurance Act,
  • The Banking Act,
  • The Kenya Communications Act,
  • The Capital Markets Act,
  • The Investment Promotion Act,
  • The Environmental Management and Co-ordination Act,
  • The Transfer of Businesses Act,
  • The Trade Marks Act,
  • The Arbitration Act,
  • The Restrictive Trade Practices,
  • Monopolies and Price Control Act,
  • The Retirement Benefits Act,
  • The Partnership Act and various statutes providing for land titles (leasehold and freehold).

Kenya has a three tier courts system –

  • Magistrates,
  • High Court and
  • Court of Appeal. J

Judicial proceedings are slow and inefficient and sometimes are tainted by corruption. The courts are overloaded with lack of capacity caused by failure to invest adequately in technology and training. As a result many litigants resort to arbitration for resolving their differences.

Membership of COMESA and the EAC also provides recourse for appeals in treaty-specific areas. There are public registries for lands, companies, trade and service marks, designs and patents – although most require a major modernization exercise.

Statutory protection of intellectual property rights exists and Kenya is a signatory to the Paris and Berne Conventions, the TRIPS Agreement, the ARIPO (Harare) Protocol and the Madrid Agreement and Protocol.

There is provision for enforcement in Kenya of certain foreign judgments and arbitration awards. Kenya is a signatory and has adopted the 1923 Protocol on arbitration clauses of the League of Nations and the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The Arbitration Act 1995 embodies most of the provisions of the UNCITRAL model law.

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