AJS Advocates FAQs
General Information
- Criminal and Civil Litigation
- Immigration Law
- Family Law
- ICT, IP, and Data Privacy Law
- Corporate and Commercial Law
- Dispute Resolution
- Debt Recovery
- Tax Law
- Real Estate and Conveyancing
- ESG and Regulatory Compliance
Monday to Friday: 8:00 AM – 5:00 PM
Saturday: 9:00 AM – 12:00 PM
Closed on Sundays.
Consultations & Procedures
- This is the forum for the client to describe in detail the legal problem that they need help with.
- The advocate is focused on listening and asking questions that are relevant to your particular circumstances in order to advise you on the best way forward.
- If your matter requires more legal analysis and research, the advocate will advise you on the modalities of preparing a legal opinion.
Is there a cancellation fee? No
Preparation: Try to ensure that you have the relevant documents on hand at the consultation, that you can present to the advocate e.g., your employment contract if discussing an unfair termination or copy of shareholder’s agreement if discussing shareholder rights and liabilities. Feel free to write or type up any questions you may have, so that questions that are important do not slip your mind.
Family Law & Child Maintenance
FAQs on spousal maintenance in Divorce Cases in Kenya
Courts have routinely held that spousal maintenance is not automatic and must be based on actual financial need.
The Marriage Act does not specify the criteria for grant of maintenance and courts have developed jurisprudence that the main criteria are for the person seeking maintenance to prove actual need and the court is entirely within its right to exercise its judicial discretion to either award maintenance or not. The specific factors stipulated in section 25(2) of the repealed Matrimonial Causes Act, are instructive and include:
- The fortune of the spouses,
- the ability of the spouse
- the conduct of the parties.
Other relevant factors include the income and liabilities of each party, Current financial needs and responsibilities present and in future and the duration of the marriage.
This affidavit highlights alongside annexed documents the following information:
- Assets of a spouse
- Liabilities of a spouse with adequate description and proof by way of supporting affidavits e.g. loan documents, school fees invoices, medical bills, expense receipts etc.
- Income of the parties both from employment and business sources
Note that each party ought to provide their affidavit of means to prove or disprove the specified claim for maintenance and it is prudent to provide information rooted in evidence as it can be prejudicial to your claim (or defence if you are opposing the claim for spousal maintenance) if your affidavit of means does not stand up to cross examination and court scrutiny.
FAQs on Child Support/Child Maintenance in Kenya
- Biological parents
- Legal guardians
- Relatives or any person who has a legitimate interest in the child’s welfare.
- Sole custody: One parent is granted full custody, with the other parent possibly having visitation rights, usually called access.
- Joint custody: Both parents share custody and make decisions together regarding the child’s upbringing and overall welfare.
- Split custody: Custody is divided between parents if there is more than one child, with each parent having custody of at least one child.
- Third party custody: Custody granted to a non-parent, such as a grandparent or close relative, if it is deemed to be in the child’s best interest.
- The child’s age and gender
- The physical and emotional needs of the child
- The child’s preference, if the child is of sufficient age and maturity
- The stability of each parent’s home environment
- The ability of each parent to provide for the child’s needs
- The needs of the child
- The income and financial capability of each parent
- The standard of living the child is accustomed to.
- Attachment of the parent’s salary
- Seizure of assets
- Fines or imprisonment for contempt of court
- Filing a petition in the Children’s Court
- Attending court hearings
- Presenting evidence and witnesses
- Following court directives and orders
Sometimes, disputing parents may be able to reach a settlement at the Children’s Office without having to go to Court.
Fathers have equal rights to apply for custody and are equally responsible for child support. The court evaluates each parent’s situation without bias towards either parent.
There is, however, a general rule established through decided cases that custody of children of tender age, i.e. below 10 years, should be granted to the mother unless there are exceptional circumstances that place the father on a higher priority over the mother. These exceptional circumstances include a mother’s disgraceful conduct, immoral behaviour, drunken habit, bad company, among others.
Property & Intellectual Property Law
FAQs on Divorce and Children
Where someone is a legal guardian, there are regulations on guardianship under the Children Act 2022 that require court consent prior to relocating with a child over whom guardianship is established.
The amicable way: Parents agree between themselves on custody, access and maintenance and this is written up in a legal document called a parental responsibility agreement, this is signed by both parents and filed in court and adopted as a court order.
The contested way: Where custody is litigated in the children’s court, where each divorced parent seeks their desired order from the children’s court; i.e. the divorcees sue and/or countersue for custody and child support.
Matrimonial Property Law in Kenya
- Financial contribution towards acquisition or improvement of assets
- Non-financial contribution towards acquisition or improvement of assets
- Welfare of minor children (e.g. impact of order on matrimonial home on rights of children)
- Customary Law as pertains to customary marriages
- Livelihood of spouses
Trademark & Industrial Design Process
- Do a trademark search using form TM 27 and indicate the exact list of goods or services you wish the mark to apply to using the World Intellectual Property Organisation’s list of applicable goods and services.
- Pay the appropriate search fee depending on the number of classes on KIPI ecitizen account.
- File the search application at the KIPI offices. It takes approximately 2/3 weeks to obtain the search result.
- Upon receiving the search result, if it says the proposed mark is available for registration you can prepare the appropriate application documents including the agent form if using an agent and the application for registration form. Also indicate the address for service of the proposed proprietor.
- This is similarly paid for on KIPI ecitizen portal and filed at KIPI office.
- The Application will also indicate the contact person and the address for service as pertains to that application for registration.
- Once the trademark is registered, the proprietor receives a trademark certificate, that confirms their name and the mark and its trademark classes and the date of registration.
- Trademark registration lasts for 10 years after which it is renewable before the Kenya Industrial Property Institute.
Local & International Trademark Infringement
- The trademark owned by a business is infringed by any person who, not being the proprietor or registered user, uses a mark identical with or so nearly resembling it as to be likely to deceive or cause confusion in the course of trade.
- Under S15A of the Trade Marks Act, the Registrar of Trademarks will not register an unregistered mark with an unconnected proprietor where the mark has a well-known status globally or nationally.
Registering Industrial Designs in Kenya
- A completed application form.
- Specimens of the design
- Drawings, photographs of the article and an indication of the kind of products
- Description of the novel features of the design
- Application fee as Stipulated in the Schedule of Fees in The Industrial Property Act
Legal & IP Rights FAQs
FAQs on the Registration of Copyright in Kenya
- The owner of the work needs to allow the display or publishing, performance, recording or resale of work through a licence.
- A licence can be exclusive to one licensee or to many sublicensees. For instance, computer software is licenced to each person who buys the software, that is a sub-licensee.
- Parties agree on the duration of the term under which the licence will be valid and if not the Copyright Act has clauses on the term of the licence.
This is the display or publishing, performance, recording or resale of work by a third party without a licence from the owner of the copyright.
Also, Important to Know What Does Not Constitute Copyright Infringement
- Copyright does not prohibit doing of any of these acts e.g., publishing, performance etc by way of fair dealing for the purposes of scientific research, private use, criticism or review, or the reporting of current events.
- Copyright does not prevent caricature where a third party makes satirical fun of the artist’s work, or if the work is used in a broadcast, for instance tv or radio broadcast.
The Recordation of Intellectual Property Rights Pertaining to all Goods Imported into Kenya
The ACA provides for the appointment of eligible IPR agents such as practising advocates.
You need to have the IPR agent, the advocate, prepare a power of attorney by which you grant them the power to act as your IPR agent in Kenya for recordation purposes.
The ACA’s mandate is to fight counterfeit goods in Kenya. The ACA is working to record and create a database of recorded goods and their characteristics. ACA is taking a proactive approach to protect the IPR in the recorded imported goods and fight counterfeits.
The applicant represented by the IPR Agent will need to provide their name; contact details; name of agent and local distributor if they have a distributor; name of each licensee and details on any affiliated companies with a right to use the IPR abroad. You will also need to provide clear photo representations/samples of the goods and proof of the subsisting IPR right in the form of a status registration certificate.
Professional Legal Fees USD 200; Disbursements USD 65.
Government fees (in approx. USD currency): Power of Attorney to Agent – USD 20; Application to record: USD 90 for first class and USD 10 for each subsequent class; Submitting particulars of Goods USD 20.
Yes, this is mandatory under the Anti-Counterfeit Recordation Regulations under Rule 3.
If there is a change in ownership, you are required to immediately submit the amended particulars to the ACA using the proper application form.
- It is imperative to conduct a land search at the land’s registry in the location where you want to buy land; the point here is to confirm the ownership of the land you intend to buy.
- The land registry search is either conducted online via the ecitizen platform or you can lodge the application for search at the Lands office in the locality where you intend to buy the land . This land search will also reveal encumbrances on the land such as charges, mortgages where the land is used as security for a loan or caveats which prohibit anyone from dealing with or otherwise disposing of the land.
- Further if you are buying land from a developer company or a company that sells land, your lawyer needs to conduct a company’s search on the Seller company to see that the company indeed exists and that it is in good legal standing and that the land it intends to sell to you is not encumbered or otherwise disputed.
- Thereafter the Seller and his Advocate will draft the Agreement for Sale setting out the terms of the sale and one should play close attention to details such as whether the land is freehold or leasehold; whether it is agricultural land or not; the reversionary interest in the land etc.
- Pay particular attention to your duties as a shareholder of the management company that will be taking care of the entire housing development or estate. Pay close attention to the duration remaining on the leasehold (most land in the cities is held on a long-term leasehold basis as opposed to freehold).
This depends on the Agreement of Sale and ordinarily amounts to 10% of the purchase price.
- On Completion, the Completion documents consisting of the original title, transfer document, Land rates clearance certificate, stamp duty valuation form, land rent clearance certificate, consents e.g., spousal consent are handed over in order to facilitate registration of the transfer of the apartment/house.
- On the other hand, the Buyer pays the remainder of the Purchase Price.
- The Buyer then pays stamp duty on the land assessed on the value of municipal land at a rate of 4% and the value of rural land at a rate of 2%.
- Thereafter the application is lodged at the Lands Registry for registration of the transfer against the title.
- The transaction is completed and the Buyer receives a certificate of leasehold (rarely a certificate of freehold if buying in the city).
A trust is a legal relationship by which a party called a settlor transfers assets to a person called a trustee in order for the assets to be held and used for the benefit of persons called beneficiaries. The settlor can also be the trustee and the beneficiary.
A trust can be for all manner of purposes: for instance, a family trust where assets are held for the benefit of family members and relatives or a charitable trust whose purpose is for the promotion of welfare of a group of individuals for a nonprofit cause.
An incorporated trust is a trust registered by the Registrar of Companies pursuant to the Trustees (Perpetual Succession) Act.
An incorporated trust is a separate legal entity comprising the trustees and it has capacity to hold property in its own name, open a bank account in its own name and sue and be sued in its own name. Usually once you set up a simple trust registered with the registrar of documents, the next step to make it incorporated is to register it with the registrar of companies.
A family trust is a trust holding property for the benefit of family members and or closely related persons e.g. spouses, partners etc.
The main advantages of family trusts are as follows:
- Smoothness and continuity: smoothness and continuity in administration of family assets in the event of death of a family member; as the family assets are held in an incorporated entity called the family trust, they are not subjected to inheritance procedures and are protected from third party claims of relatives and other survivors of the deceased. Only beneficiaries named in the trust deed will be entitled to use those assets in the event of the death of the settlor.
- Asset protection of family assets: as the incorporated trust holds assets in its own name and is a legal person, third parties e.g. creditors, judgement creditors cannot access your assets that have been transferred to the family trust in the event you as the individual owes debts. The assets once moved to the trust belong to the trust for the benefit of the beneficiaries including you, they are no longer your individual assets.
Who controls a family trust? A family trust is controlled by the trustees. Once the person transferring his assets into the trust completes the transfer he cedes control of the assets to the trustees and the trustees are on charge of how the trust is run and how the trust is administered for the benefit of the beneficiaries. Note that the settlor who transfers his assets to the trust can retain some control by appointing himself as trustee at inception of the trust.
Who controls the property in a family trust? The trustees control the property including its use, investment, sale and purchase; the settlor may only continue controlling those assets in his capacity as trustee and no longer as the previous owner as the assets after transfer are held in the name of the incorporated trust.
Is there a principle of equality between beneficiaries in a trust? Not necessarily; unless otherwise stipulated the trust is discretionary and it is entirely up to the trustees to determine how income and assets are distributed between beneficiaries. This discretion is beneficial as the trustee at all times is able to weigh the needs of beneficiaries prior to distribution.
In whose name is the property of the trust held? Trust property is held in the name of the incorporated family trust which is a legal entity by itself.
Who is an enforcer in a trust and is their role mandatory? An enforcer is not a mandatory addition to your trust. The enforcer’s role is to ensure the trust is being run as per the terms of the trust deed and they also have power to direct remedial action by the trustees for the benefit of beneficiaries and the trust as a whole. The enforcer is a person who is not the trustee as they hold the trustees accountable.
Governance: It is advisable to have less than more trustees for a trust of moderate value in order to avoid frequent disputes between trustees that can lead to deadlocks in the trust. It is also prudent to appoint a trustee who is diplomatic, agreeable, and well nuanced in social and cultural issues especially in the context of a family trust in Kenya. The trustee should be an efficient administrator who can keep good records and act for the benefit of all beneficiaries.
Does a settlor control assets that have been settled on the trust? Once the settlor transfers the assets to the incorporated family trust, they cease to control the assets unless they appoint themselves as a trustee and even then they control the assets for the benefit of beneficiaries and not in their capacity as settlor.
Starting a family trust can protect family assets from outsiders in 4 main ways as follows:
- Creditor Protection: The incorporated trust is a legal entity by itself to hold assets for the benefit of you and your family and this can be useful to protect you from persons whom you owe money in your own name. Practical examples: you cause a road accident and you are required under a civil suit to pay the victim accident compensation money and part of the money is not covered by the scope of the insurance policy on the car, if you have no cash at hand to pay the judgement debt your assets may be liable to attachment to pay such a judgement debt. However, if you hold no important personal assets such as land, as you had already secured this in an incorporated family trust – you are well protected.
- Matrimonial Protection: Another instance of how it protects your assets for the family is if you marry and your assets are within a trust, it is extremely difficult for such assets to be liable to be deemed as matrimonial assets and thus in event of divorce, the assets you brought into marriage via your trust are protected from being distributable under the Matrimonial Property Act as a trust is the owner of the said assets.
- Succession Bypass: A family trust is also good because it bypasses the inheritance/succession process such that upon death of the settlor, if the assets are duly held in the family trust, the assets are still available to the use of the living beneficiaries as there is no need to go to court to get letters of administration or probate which can be expensive and subject to legal challenge by objectors and other family members.
- Continuity: Also upon the death of the settlor who is a named trustee, there is a clear clause in your trust deed for how a successor trustee shall be appointed to replace the dead trustee thus it is more seamless and the trust assets are not liable to loss or waste in the period after the settlor’s death as control of the assets is maintained through the successor trustee.
- Beneficiaries are named or designated persons in your trust deed whom benefit from your trust. This can include you as the settlor.
- You can name the persons who are living and you can also designate an ascertainable class of people to be your beneficiaries e.g. naming your “children” as your beneficiaries covers your children both future and living as well as biological and legally adopted children.
- Anybody can be a beneficiary of your trust whom you would wish to benefit under your trust including: spouses, life partners, children, and other relatives.
- Obviously it is more prudent to put name beneficiaries whom you know in the trust to avoid inferences of a sham family trust and to avoid challenges from outsiders whom are not as vested in the family benefitting as you may be. The whole concept of a family trust is to benefit your loved ones.
- You can also exclude specified people from being your beneficiaries e.g. your children “except, so and so.”
The Trust Deed: The trust deed is the most important family trust document that is used to form the family trust. It should be drafted by a competent lawyer. A generic family trust deed that is not tailored to your circumstances can be highly risky. For those reasons, it is highly advisable not to use DIY trust deeds without the lawyer’s input. A family trust deed is the constitutive and governing document of your family trust and as such before having it registered with the registrar of companies, it should have all relevant clauses that ensure the assets in the family trust are protected from outsiders and from waste by trustees of the trust.
Number of Trustees: The Trustees Act under Section 36 envisages a minimum of 1 and maximum of 4 Trustees for the Trust. It is better to have fewer than more trustees for the advantage of cohesive administration marked by less disputes. Also it is cheaper as trustees can be entitled to remuneration for their service in accordance s with the trust deed.
Personality and Character: It is vital to choose a person who is competent, wise, culturally and socially astute, conciliatory and cooperative as your trustee; these tend to be the long-term character traits that aid efficient administration of a family trust for many decades. Choice of trustees with these useful personality traits is actually one of the more important decisions when registering a family trust.
- Consultation is held with the lawyer to understand objectives, family dynamics, and assets.
- The trust deed is drafted and signed before a commissioner for oaths. A family trust is usually irrevocable.
- The Trust deed is taken for stamp duty assessment and paid.
- The document is registered by the Registrar of Documents at Ardhi House.
- Incorporation begins with Business Registration Service (Form TRA 1).
- Documents required: petition to set up trust, 1-page summary, title deeds, recent searches, proof of holding for cash assets (bank statements). Trustees provide bank accounts, photos, contacts, KRA PIN, and address.
- Incorporation takes approximately 1 month barring issues.
- Once incorporated, trustees are notified to collect certificate at 316 Chambers in Upper Hill (BRS location).
- Original documents (deed, statements, IDs, searches) must be carried for verification during collection.
- Register the Trust to obtain a KRA Pin Certificate.
- Open bank and investment accounts.
- Liaise to transfer land assets into the name of the family trust (note: all owners must agree for jointly owned land).
- Keep proper and meticulous records; consider appointing a certified secretary/company secretary to assist.
- Record all distributions of assets or income to beneficiaries (minutes and resolutions are crucial).
- Develop a trust constitution to outline standard operating procedures for future successors.
Yes, firstly, you can apply to the family court to be a dependant of the deceased under Sections 26-29 of the Law of Succession Act. This allows you to claim as a dependant of the deceased on the basis you were being maintained or have been maintained by the Testator in the past.
Secondly, you can also contest the will by filing an objection and you can also apply to have the grant of probate revoked (if it has already been issued) on the basis that the will is invalid for a legal reason. Such reasons include that the will was invalid due to the testator lacking mental capacity; that the testator was under duress or coerced when he made the will; etc. An application for revocation of the grant of probate of the will is guided by Section 76 of the Law of Succession Act.
Who can contest: Often the persons who contest being left out of the will are close family members and dependants. These include spouses, children and persons the Testator was taking care of prior to death such as parents or siblings.
What to prove: Section 28 highlights factors that you need to present and prove to the court such as your income, needs, liabilities, your relationship with the deceased, the provision for other beneficiaries under the will, etc.
In seeking to revoke a grant on the basis of a fraudulent/invalid will, you need evidence/witnesses to prove the averment that the deceased lacked capacity in some way to make the will where you were left out e.g. as pertains to mental capacity, undue influence, forgery of will etc.
How long do I have? Often time is of the essence as once a grant of probate is confirmed by the court, administration of the estate begins and assets begin being distributed to the legatees under the will. Thus practically filing such applications speedily is advised.
Who should I serve? You should primarily serve the executor in such a court case with any court papers you file and other parties beneficially interested in the case.
Post-confirmation actions: An application for dependency is ideally done before the grant of probate is confirmed and where you are out of time, then you will have to convince the court that there are strong/compelling reasons for the delay in bringing the application.
An application to revoke the grant of probate can be made before or after confirmation of the grant.
How long will it take? This cannot be definitely answered as some cases are quick while other’s can take longer and also depending on the court calendar.
Can costs be paid out of the estate? Yes, the court has power to direct costs of contesting being left out of the will to be paid out of the deceased’s estate (usually where you have successfully contested.)
What if the deceased’s Children are left out? Children have a good basis to apply to be dependants of the deceased as they are the close survivors of the deceased and are termed dependants under Section 26 of the Law of Succession Act.
- A foreigner dies domiciled abroad leaving assets in Kenya
- A foreigner dies domiciled in Kenya leaving assets in Kenya.
The Probate process: If the foreigner died leaving a will that is applicable to his Kenyan assets, the will shall be probated in court and any executor or administrator shall administer the estate of the deceased in Kenya on the basis of this grant of probate issued by a competent court either in Kenya or abroad.
Competent Court: The competent court can either be:
- the foreign court where a grant of representation over the estate is issued
- The Kenyan Court may also be the competent court.
To determine the appropriate court, it is important to first understand whether Kenya will enforce foreign grants from a particular country. In general, Kenya enforces grants from Commonwealth countries and other specified gazetted countries listed under the Resealing of Foreign Grants Regulations; thus if the foreign court is not in this list, the survivors are better suited to file a succession suit for the Kenyan assets in the Kenyan courts.
Intestate succession occurs where the foreigner dies without a will. In such a case, and subject to any other applicable law, Kenyan law provides for distribution as follows:
Where the deceased left a spouse and children:
- The widow will get the personal and household goods of the deceased absolutely;
- The widow is entitled to a life interest in the residue of the estate which she is in a position of a trustee for the benefit of the Deceased’s children.
- Upon the death or the remarriage of the widow, the net intestate estate will devolve in equal shares to the children of the Deceased.
If the deceased only left children: the children are entitled to equal shares of the intestate estate.