PRACTICE AREAS

Commercial Law

Undoubtedly, there is need for a sound legal framework to cater for the commercial transactions that are entered into between and among private persons and private entities as well as private persons and government institutions. Commercial transactions range from simple business arrangements between individuals in the same locality, to advanced business arrangements between Individuals and institutions in different localities within Kenya and even different countries. However, in all cases, the parties in these business arrangements that can sometimes be quite complex due to the number of parties involved as well as different legal systems require that their interests are best defined, articulated, and represented. For this reason, there is often need for legal counsel to assist parties by:

  • Better defining their interests;
  • Drawing up relevant documents and instruments that best capture the interests of the client;
  • Analyzing the legal risks faced by clients in respective commercial transactions; and
  • Representing clients to defend their interests in the event of disagreement or failure in the fulfillment of the transaction in accordance with the terms agreed.

Constitutional Law

Invariably, all questions of law in the state can be traced to the Constitution, whether substantially or remotely. With the promulgation of the Constitution of Kenya, 2010 a new governance platform was brought into being bearing new rights, duties and obligations for citizens and the state. Among other features, this Constitution has an enhanced Bill of Rights that contains provisions that are in tandem with Regional and International conventions and protocols regarding the rights of human beings generally and in particular women, persons with disability, minorities and marginalized persons. In addition, the advent of devolution in Kenya as created in the Constitution has created a new tier of governance where there now exists the National Government and the County Governments.

Indeed as Kenyans continue to get practically familiar with all the facets of the Constitution of Kenya, 2010 as individuals;groups; communities; institutions; the National and County Governments; as well as regional and international persons and entities doing business in or with Kenya,there is often need to clarify rights, duties, and obligations among persons and institutions and hence the need for:

  • Legal opinions that outline the respective position of the person or entity requesting the same;
  • In-depth research on the various phenomena and gaps that may arise in the course of the implementation of the Constitution; as well as
  • Representation in litigation arising on constitutional issues.

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Diaspora Care

Today, Kenyans can be found in virtually every capital city in the world undertaking different activities including work, studies, business, sports, etc. While abroad, the majority of Kenyans retain active links at home in Kenya which is attested to by the fact that their remittances back home have been found, through studies, to play a key role in Kenya’s economy. While abroad, Kenyans remit monies back home for various purposes that include real estate, business whether active or prospective/speculative, charity etc. In this regard, there arises a need for Kenyans in the Diaspora to access legal services in a timely manner for any or all of the following issues:

Representation of one’s legal interests in Kenya on diverse matters such as:

  • Land Matters – undertaking due diligence on identified property, drafting the sale agreement, drafting necessary transfer documents, liaison with various persons, representation in meetings that require legal representation, registration of transfer documents, and attending court to articulate the client’s concerns where necessary;
  • Corporate Matters – incorporation of company, business, partnership or joint venture; attending crucial meetings on client’s behalf including voting by proxy where requested to; restructuring of company such as change of shareholding, name change, and increase of share capital; restructuring of business or partnership; filing of annual returns at company registry; drafting of contracts and agreements for various purposes; preparation of legal opinions; advising on the necessary licences and permits required for the purpose of undertaking different business activities and other activities such as research, cinematography, photography; supervision of execution and implementation of contracts entered into with parties in Kenya for various works; and attending court to articulate client’s concerns;
  • Family Law Matters – child support and succession (transmission of estate of deceased persons), preparation of wills, execution of wills and creation of trusts;
  • Immigration – immigration status and citizenship issues; and
  • Undertaking other Routine Legal Work – such as assisting clients to establish charitable organisations under either the Non- Governmental Organisations (NGO) Coordination Act which will be replaced by the Public Benefit Organisations Act once issued with a commencement date, Company Limited by Guarantee under the Companies Act or a Trust under the Trustees (Perpetual Succession)Act; intellectual property matters such as registration of patents and copyrights; preparation of power of attorney; preparation of non-disclosure agreements; and execution of instructions by client with respect to the implementation of matters of concern to them that require periodic and regular updates.

Electoral Law

Elections provide a means for citizens in the state to choose their representatives at all levels periodically in an orderly fashion. Since Kenya’s independence in 1963, there have been several developments in her electoral laws aimed particularly at making them much more freer and fairer, as well more inclusive and participatory. The Constitution of Kenya, 2010 creates a specific electoral environment that ought to reflect certain tenets including the inclusion of women, the youth, minorities and marginalized persons in the decision-making processes of the state. It also provides for affirmative action measures to be implemented and where absent, be developed, in order to create a level playing ground for all Kenyans aspiring to political office from the various wards around the Country to the highest political office of the presidency. In this regard, individuals, political parties, private and public institutions as well as international entities may require the following services:

  • Advice regarding the various rights, duties and obligations created under Kenya’s electoral laws;
  • Advice regarding how Kenya’s electoral laws compare regionally and internationally;
  • Preliminary and/or in-depth research on various aspects of Kenya’s electoral laws;
  • Legal opinion on specific issues arising from the application or implementation of Kenya’s electoral laws;
  • Representation before adjudication bodies created to mediate electoral based conflict.

Environmental Law

The environment is an important aspect of life as human beings are dependent on it for its survival. This therefore means that it should be protected from the day to day human activities that endanger it causing adverse effects such deforestation and climate change.Environmental laws and regulations have been adopted at international, regional and national level tocontrol activities that damage the environment. Kenya is a step ahead as it has a superior court – the Environmental and Land Court – dedicated to hear and determine disputes relating to the environment and land. Individuals, organizations and the county and national government may require the following services:-

  • Advice on various aspects concerning the local, regional and international regulatory regimes on the environment;
  • Preliminary and/or in-depth research on various aspects of environmental law such as on REDD+, climate change and deforestation; and
  • Consultancy services on any aspect of environmental law;
  • Legal representation.

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Immigration Law

For visitors to Kenya, certain aspects of the Kenyan law pertaining to their rights of entry and the specific permissions they have or are required to apply for in order to carry out their respective activities can be bewildering. Foreigners may find themselves on the wrong side of the law due to their lack of knowledge about the same. Among the issues that usually pose challenges to visitors to Kenya and which DLM Advocates can be of assistance include:

  • The type of permits and licenses required to carry out the respective activity of interest to the incoming visitor. These include work permits; licenses for various activities including business, mining, music, filmography, etc.
  • Permissions required to carry out controlled activities in Kenya e.g. primary research and experiments on controlled substances, etc.
  • Citizenship of persons born abroad but of Kenyan parents;
  • Representation in courts or tribunals where infringements on the rights of immigrants occur and Appeals where there are lawful grounds for challenging refusals under the relevant statutes.

Law and Policy Making, and Law Reform

Given that society is not static but rather is dynamic, it is well understood that law must reflect the needs of the day for the society it serves. In this regard, the law in reference is the Constitution, Statutes, Regulations to Statutes, and all other Subsidiary Legislation; Evidently, where the law lags behind, the growth of society will be stifled given that the medium supposed to facilitate growth is ill fitting or ill-suited for the purpose. For this reason, law making and law reform is an integral part of ensuring that society has the necessary facilitation to accomplish the wide range of activities that take place in the state. In this regard, new laws often have to be made by the legislature in order to facilitate the lawful action by individuals and entities with respect to a particular issue. Generally, new laws ought to be preceded by policies from the relevant government agency in order that the law may capture the intention of government aptly. Equally, old laws require review from time to time in order to ensure that they stay relevant in providing the guidance and framework for the particular issue they apply to. In this regard, individuals, private and public institutions, political parties, and legislatures (national and county) may require the following services:

  • Preliminary and/or in-depth research on the issue for which there is need to make policy, a new law, or review an existing law;
  • Drafting of the policy, new law; amendments to the old law; or regulations to statutes.
  • Audit of laws, whether National or County laws, to establish their consonance and compatibility with prevailing regional and international norms;
  • Legal opinion on the gaps in existing law and the potential for conflict of proposed new laws with the Constitution and other existing laws and practices

Natural Resources

Kenya has natural resources such as minerals, land, water, forests, wildlife, coal and fish that are useful for economic production or consumption. These natural resources if sustainably developed and managed can contribute to economic growth of the state.

There are several laws and regulations dealing with the natural resources found in Kenya. Some of them have recently been enacted such as the Mining Act 2016 and some are being drafted or going through the parliamentary process to ensure that the laws are up to date and give adequate protection to the natural resources.

There is evidently need for civic education in the communities where the various natural resources are found so that the residents are able to meaningfully participate in decision making, as provided for in the Constitution, on the exploitation of these natural resources. This ensures that there is ownership of the decisions by the community to avoid conflicts that are experienced in relation to exploitation of some natural resources.

Individuals, organizations and the county and national government may require the following services:

  • Preliminary and/or in-depth research on various aspects of natural resources laws;
  • Legal opinion on a specific issue arising from the application or implementation of the various laws and regulations on natural resources;
  • Consulting services such as capacity building; research and publication; advocacy; and evaluations;
  • Negotiating business transactions relating to oil, coal and mineral resources;
  • Drafting documents such as joint venture agreements, license agreements, supply agreements, term sheets; and
  • Legal representation.

Property Law and Conveyancing

Land is a very important natural resource as it benefits human beings in very different ways. This is why many disputes currently in court touch on land and buildings erected thereon. For this reason it is very important that advocates are involved in every dealing in property to ensure that the necessary due diligence is done and that the transaction is in accordance to the law.

Apart from land and buildings, property can be in the form of intellectual property. The music and art industry in Kenya is currentlydominated by the youth and is growing rapidly. The youth can only benefit from this sector if their intellectual property is protected. Similarly, the industrial sector of the country is also growing as new innovations are coming up which need to be protected to ensure that the companies benefit from their innovations. In this regard, individuals, organizations and the county and national government may require the following services;

  • Conveyancing services that involve drafting different documents such as sale agreements, transfers, mortgages, discharge, joint venture agreements, leases and licenses a well as carrying out due diligence.
  • Registration of intellectual property such as copyrights, trademarks and patents.
  • Legal opinion on a specific issue on land and intellectual property;
  • Preliminary and/or in-depth research on various aspects of property law including intellectual property; and
  • Legal representation.

Regional Integration

It is often said, ‘think local act global’; ‘the world is shrinking with the opening up of borders’; ‘when one part of the world catches a cough, other parts of the world sneeze’, etc. Among others, these expressions capture the experience witnessed from the various regional integration arrangements (RIA) that exist globally. In all the continents, there exist regional integration arrangements with the majority being trade related and others blending trade and diverse political governance arrangements. Closer home, Kenya is a member of various RIAs including the East African Community (EAC), Intergovernmental Authority on Development (IGAD), Common Market for Eastern and Southern Africa (COMESA), African Union (AU) to name but some.

Being a member of a RIA necessarily creates rights, duties and obligations for respective member states as well as provides the scope for the creation of new governance structures and laws to facilitate meaningful and structured relations. RIAs may have common courts to adjudicate over the various laws and regulations guiding the arrangement; common service providers for agreed issues; and common facilities. In this regard, individuals and countries may require the following services:

  • Advice regarding the purpose and operations of the RIA of interest;
  • Advice regarding the rights, duties, and obligations created by the RIA;
  • Research regarding specific issues of interest to clients in relation to the RIA in question;
  • Audit of clients’ legal preparedness to trade with or do business with the RIA of interest or with the citizens or institutions in the member states of the RIA;
  • Drafting of legal documents capturing the interest of clients in their dealings with the citizens or institutions from member states of the RIA(s) of interest;

Tax Law

Taxation is inevitable as it is one of the sources of government revenue. Tax law is complex for two reasons. One, there are independent legislations dealing with the different types of tax chargeable such as income tax, custom and excise duty and value added tax. Two, tax laws have been used for objectives other than raising revenue, such as meeting political, economic, social and health agendas. For this reason, lawyers play an important role in interpreting these laws and explaining the different tax terminologies to their clients. In this regard the clients may require the following services:

  • Tax agent
  • Legal opinion on a specific issue intax law and taxation;
  • Preliminary and/or in-depth research on various aspects of tax law and taxation such asdouble taxation treaties;
  • Consulting services; and
  • Legal representation.

Women and the Law

Since the commencement of conscious efforts to achieve gender parity in Kenya, several legislative and policy interventions have been established.
Of these, the provisions in the Constitution of Kenya, 2010 are outstanding because of their far-reaching nature and capacity to transform Kenyan society if implemented. The Constitution of Kenya seeks to bring about gender equity in both appointive and elective positions and this is expected to be achieved through the utilization of affirmative action measures indicated in the Constitution. The State is also expected to take legislative and other measures to achieve gender equity. Through the implementation of the socio-economic rights outlined in the Constitution of Kenya, 2010 including the right to food, education, and environmental safety to name but some, women in Kenya stand to benefit manifestly. Other than the area of discrimination faced in appointive and elective positions, women in Kenya also face other challenges in both their personal and public lives that require resolution. In this regard, women or male supporters of women may require the following services:

  • Advice regarding women’s various rights, duties and obligations created under Kenya’s various laws as well as regional and international conventions of which Kenya is a signatory;
  • Advice regarding how Kenya’s laws compare regionally and internationally insofar as the protection of women is concerned;
  • Preliminary and/or in-depth research on various aspects of women’s lives insofar as the law is concerned;
  • Legal opinion on specific issues arising from the application or implementation of Kenya’s laws as regards the rights or position of women;
  • Drafting of laws that specifically outline issues pertaining to women, and the review of draft laws to ensure they carry the concerns of women, at both the national and county governments;
  • The drafting of any necessary legal documents that outline the position of or establish the rights of female clients;
  • Representation before dispute resolution forums or courts.