By Francis Mwangi and Phillip Njoroge

Introduction

On Thursday 15 April 2021 at 8:59:03 AM UTC, Bitcoin prices soared to US $ 63,216.44 per coin. This was the culmination of a series of events that elevated Bitcoin to being the fastest ever asset to hit US $1 Trillion (US $ 1,000,000,000,000.00).

In today’s capitalist society, success is measured in monetary value, and the same is best encapsulated by the market capitalization (market cap) concept. This concept is dictated by the total value of a corporation within the stock market.

Successful enterprises within this setting have a market cap range in the hundreds of millions of dollars. Global business conglomerates such as JP Morgan Chase, Walmart, Alibaba, Tencent and Facebook are within the range of hundreds of billions of dollars. However, only a handful of mega-corporations (megacorps) stand at the peak with their market cap going above the trillion-dollar market cap range. These are:

• Saudi Arabian Oil Company (Saudi Aramco) – $2.6 Trillion
• Apple Inc. – $2.2 Trillion
• Microsoft Corporation – $1.90 Trillion
• Amazon.com, Inc. – $1.64 Trillion
• Alphabet Inc. (Google and other Subsidiaries) – $1.60 Trillion

It took these megacorps, the richest in modern times, several decades (an average of 33 years) to climb up the rungs of success. However, what took the megacorps such a considerable amount of time to achieve only took Bitcoin – the leading cryptocurrency with a market cap of US $ 1.74 Trillion – a meagre 12 years. The scale of this success has baffled the public and left many to wonder:

• What exactly are cryptocurrencies and how do they operate?
• What is the rationale behind the ‘crypto-frenzy’ of this age and why are cryptocurrencies so extraordinarily profitable?
• Can one legally invest in cryptocurrencies in Kenya?

What are cryptocurrencies, and how do they work?

By definition, a cryptocurrency is a digital representation of value that functions as a medium of exchange, a unit of account, or a store of value. It can also be defined as a digital currency in which transactions are verified and records maintained by a decentralized system using cryptography as opposed to a centralized authority.

This process of collection, verification and maintenance is more commonly known as ‘cryptocurrency mining’ (crypto-mining). The concept behind crypto-mining is that all transactions (blocks) across the cryptocurrency network must be monitored and supervised. This is facilitated through the compilation of blockchains. The incentive behind this process is that once a blockchain is compiled, a new token is awarded by the creator of the cryptocurrency. In fact, this is the only way to release new tokens/coins into the market.

However, the process of crypto-mining is complex. Mining is an entirely automated process that must be conducted using high-capacity processing computers. For this reason, crypto-mining cannot be conducted using machines that perform regular desktop functions. The hardware and software needed to set up these machines is expensive and the electricity required to run them is costly, with these machines consuming electricity valued at up to Kshs. 2 million every 10 minutes (the amount of time it takes to mine one bitcoin, for example). One can then sell these coins, if history is anything to go by, for as much as Kshs. 7 million.

The primary value that blockchain brings is that, as an open-source database, it is decentralized and the data which is inputted is almost impossible to steal, hack or corrupt. Blockchain technology stores the data in millions of computers worldwide, and before it is saved as a block, it must be verified by a network of nodes (computers). Block chaining is thus a global, safe, scalable, trustworthy database with the potential to serve inexhaustible purposes.

What is the rationale behind the ‘crypto-frenzy’ and why are cryptocurrencies so extraordinarily profitable?

Cryptocurrency trading is profitable if one plays their cards well. For example, during the Bitcoin boom of April 2021, traders who had been in the market since 2014 (when one Bitcoin cost about $500) experienced returns of about 12,800%. Simply put, these profits cannot be experienced elsewhere in the world and are the reason for the ‘crypto-craze’.

However, cryptocurrency trading is extremely volatile and may not be generally appropriate, particularly with funds drawn from retirement savings, student loans, mortgages, emergency funds, or funds set aside for other purposes. Cryptocurrency markets have been continually shrouded in doubt and uncertainty, with unusually high-risk factors and expensive running costs.

Can one legitimately invest in cryptocurrencies in Kenya?

It should be noted that the risks that accompany the use of virtual currencies are generic in nature; the negative implications that apply to foreign markets apply to the Kenyan market as well. Those risks include the ones mentioned below which have led the Central Bank of Kenya to curtail the trading of cryptocurrency in Kenya by its licensees thereby pushing the bulk of cryptocurrency trading activity to offshore entities operating online.

a. Cryptocurrencies are unregulated currencies

Regulation of money supply is a crucial and important element in control of money markets as it is responsible for maintaining economic stability, controlling inflation, and informing monetary policy. For example, having more money supplied and circulating in an economy can lead to demand-pull inflation where an economy has too much money chasing few goods. For this reason, supply of money in any economy is a highly regulated affair with central banks being at the heart of any money issued in any economy.

In Kenya, the Central Bank of Kenya Act (the CBK Act) vests the sole right to issue notes and coins to the Central Bank of Kenya (the CBK) and only the CBK-issued notes and coins are recognized as legal tender. In addition, Section 19 of the CBK Act provides that all monetary obligations or transactions entered or made in Kenya shall be deemed to be expressed, recorded, and settled in Kenyan currency unless otherwise provided for by law or agreed upon between the parties. This means that unless a note or coin is issued by the CBK, it is not effective as a medium of exchange in Kenya.

As cryptocurrencies are not issued by central banks, they lack recognition as legal tender and do not fall within the regulatory ambit of the CBK: a fact which the CBK has repeatedly publicised.

b. Transactions and dealings that involve virtual currencies are untraceable and anonymous

As cryptocurrency transactions are blockchain transactions done through a decentralized network of nodes, it is not possible to oversee the entire network and as such cryptocurrency transactions are generally untraceable and anonymous. This makes cryptocurrency transactions susceptible to use by criminals in illegal transactions such as money laundering and financing of terrorism.

It is therefore possible for cryptocurrency transactions to pose a risk to the country’s internal security and undermine the process of holding accountable the persons involved in these criminal activities.

c. Cryptocurrencies are usually traded on unregulated platforms

As we pointed out earlier, the CBK has as its primary object the formulation and implementation of monetary policy directed to achieving and maintaining stability in the economy. Therefore, the CBK is mandated under the CBK Act as well as the National Payment Systems Act to license all persons responsible for monetary transactions to achieve its overall mandate of acting as the body responsible for formulating monetary policy that maintains the price stability of the issuing currency. To this end, the CBK licenses all banks, forex bureaux, mortgage finance companies, money remittance providers, microfinance banks and payment service providers.

The CBK is not alone in this endeavour. Its role is supported by other regulators such as the Capital Markets Authority (the CMA), the Insurance Regulatory Authority (the IRA) and the Retirement Benefits Authority (the RBA) who license many of the participants in the securities markets and dictate their role. In particular, the CMA licenses the platform where investments are traded, and it would not be possible for a cryptocurrency exchange to be set up without their approval.

The oversight by the regulators is not done solely for purposes of macroeconomic management. This oversight is extremely important to ensure the sanctity of financial transactions by the public is not violated thereby giving confidence to the investing public. It is indeed a key cog in ensuring that the financial sector remains vibrant, and the public is not defrauded or exploited through monetary transaction schemes.

However, as the regulation of cryptocurrencies is not within its ambit, the CBK does not issue licenses for cryptocurrency trading. Further, the CMA has not classified cryptocurrencies as investment assets and therefore participants in the investment markets are yet to fully embrace cryptocurrencies as a necessary part of their investment portfolio. As such, though it is not illegal to hold cryptocurrency as an investment asset, many of the platforms which process cryptocurrency transactions on behalf of the public can easily find themselves operating illegally if it is deemed by the CBK that their exchange of regular currency for cryptocurrency is an unlicensed foreign exchange transaction. This leaves the investing public with no recourse if an issue arises regarding a cryptocurrency transaction.

It is with the above in mind that the CBK, in its Banking Circular No. 14 of 2015 dated 18 December 2015 addressed to all Chief Executives of commercial banks, mortgage finance companies and microfinance banks, cautioned all financial institutions against dealing in cryptocurrencies or transacting with entities that deal in cryptocurrencies. Additionally, financial institutions were cautioned against opening accounts for any person dealing in cryptocurrencies.

d. Cryptocurrencies are not backed by any underlying assets and their value is purely speculative

Centralized financial institutions play a major role in regulating the economy; if the economy seems to be growing too quickly and causing prices for goods and services to become unaffordable, a central bank can increase interest rates to make it more expensive for borrowers to access money.

Conversely, if an economy is not growing quickly enough, central banks can reduce interest rates or create money to lower the cost of living and therefore make it easier for consumers to borrow money.

The ability of central banks to play this role is underpinned by the fact that licensed currencies are backed by assets such as foreign exchange holdings or gold which contribute to the value of the currency. This is not the case with cryptocurrencies.

Cryptocurrency trading is decentralized and the currencies themselves are not backed by any assets. Their value is dictated purely by the market forces of supply and demand. Due to this, cryptocurrencies experience high volatility in their values and investors in the same have repeatedly suffered losses due to the wild swings in the values of the cryptocurrencies.

Conclusion

The volatile, rogue and even loutish nature of cryptocurrency trading is the main pitfall of this venture. The absence of regulation as well as its attendant remedies makes the plunge into cryptocurrency trading even more daunting. Ironically, it is the discreet and unregulated nature of this market that has caused it to thrive. Considering the above, it is understandable that some countries like China, the former leading hub of this market, have banned the trade altogether.

From a Kenyan standpoint, trading in cryptocurrency is an unregulated venture which is currently not addressed in Kenyan statutes. The regulatory uncertainty increases risk tremendously given that while there is no express ban in holding cryptocurrency as an asset for investment purposes, it can be deemed illegal to use the same as a medium of exchange and one can easily find themselves on the wrong side of the law. Cryptocurrency trading should therefore be undertaken with extreme caution.

Be that as it may, central banks have begun realizing the potential of a well-regulated cryptocurrency market and some have started to create their own cryptocurrencies to facilitate this. China is known to be developing a digital currency, while Venezuela has issued one supported by its oil reserves. Acceptance and regulation of cryptocurrencies is taking hold globally, and this may well lead to a reduction in the volatility of the cryptocurrencies.

With these developments, Kenya cannot afford to be left behind. While the CBK has reasons to be concerned regarding the use of cryptocurrencies as monetary instruments, it cannot discount their value as investments. As such, if the CBK can collaborate with the CMA to recognise cryptocurrencies as investment assets and to establish guidelines on the holding and trading of the same, cryptocurrencies can end up creating wealth for the public without posing a risk to monetary stability. This has been done in Japan, and the approach is gaining popularity worldwide.

Introduction 

The Registrar of Companies operationalized the Beneficial Ownership (BO) E-register on 13^th October 2020. The effect of this is that all registered companies are now expected to prepare a form/register setting out all the information relating to their beneficial ownership and lodge the same with the Registrar within thirty (30) days of its preparation.

Prior to the enactment of the Companies Act, 2015, companies did not have any duty whatsoever to disclose information regarding their beneficial ownership. However, pursuant to the Companies (Amendment) Act, 2017 and subsequently the Statute Law (Miscellaneous Amendments) Act No. 12 of 2019 which introduced Section 93A, all companies incorporated or registered in Kenya are mandatorily required keep a register of beneficial owners with the relevant information relating to the said beneficial owners as prescribed by the Companies (Beneficial Ownership Regulations) 2020 (hereinafter referred to as the ‘BO Regulations’).

Who is a beneficial owner?

The BO Regulations describe a beneficial owner as the natural owner who ultimately owns or controls a legal person or arrangement. or the natural person on whose behalf a transaction is conducted and includes those persons who exercise ultimate effective control over a legal person or arrangement.

Pursuant to the BO Regulations, a person qualifies as a beneficial owner if the person:

1. holds at least ten percent (10%) of the issued shares in a company either directly or indirectly;
2. exercises at least ten percent (10%) of the voting rights in a company either directly or indirectly;
3. holds a right, directly or indirectly, to appoint or remove a director of the company; and
4. exercises significant influence or control; directly or indirectly, over the company. In this case significant influence means participation in the finances and financial policies of the company without necessarily having full control over them.

Steps of Filing Beneficial Ownership Information of a Company with the Registrar of Companies

1. The company should take reasonable steps to identify any person it knows or has reason to know is a beneficial owner of the company.
2. The company should give notice to the person it has identified as being a beneficial owner of the company requiring the person to provide the following information within twenty-one (21 days) from the date of the notice;
   • copy of his/her National Identification Cards, Passports or Birth Certificate;
   • copy of his/her PIN Certificate;
   • his/her telephone number, email address and occupation;
   • the nature of ownership or control the beneficial owner has in the company;
   • the name of shareholder (if any) holding shares on behalf of the beneficial owner; and
   • the name of the director appointed by the beneficial owner.
3. The company should prepare Form BOF1 which contains the information set out in (2) above and lodge the same with the Registrar of Companies within thirty (30) days of preparing the said Form.

What happens in the event a Company believes it has beneficial owners but cannot identify or trace them?

The Company should simply notify the Registrar of Companies of the challenge to identify or trace its beneficial owners so that the Registrar can note the same in the register of Beneficial Owners.

What happens in the event a Beneficial Owner fails to provide the Company with Beneficial Owner’s details to enable to the Company Prepare and Lodge Form BOF1?

 The company should issue a warning notice stating that it is proposing to restrict the relevant interest of the beneficial owner.

The effect of the said restriction is:

• any transfer of the beneficial owner’s interest is void;

• no rights are exercisable in respect to the beneficial owner’s interest;

• no shares may be issued in right of the beneficial owner’s interest; and

• no payment may be made of sums due from the company in respect to the beneficial owner’s interest.

Where the Company has issued a warning and imposed a restriction it shall note this in its register and lodge it with the Registrar.

Are there Limitation on the use and disclosure of beneficial owner’s information by the Company and Registrar?

Yes!

The use and disclosure of the beneficial ownership information is limited by law. The BO Regulations prescribe that as a general rule, beneficial ownership information shall not be made available to the public.

The rationale for this is to safeguard the beneficial owners’ confidentiality and to preserve their right to privacy.

The implication of this however is that a company’s beneficial ownership information shall not be readily available to any member of the public by way of conducting a company search. The Registrar would only issue such information to a competent authority upon written request to the Registrar of Companies.

A Company on its part, is only allowed to use or disclose information about the beneficial owner for purposes of communicating with the beneficial owner concerned, or in order to comply with either a court order or the Company (Beneficiary Ownership Regulations) 2020.

What are the timelines for the preparation and lodging of the Beneficial Ownership Register?

The Regulations do not seem to impose any specific deadlines as to the timelines within which a company is required to prepare its beneficial ownership register.

However, a company should prepare such register as soon as possible as it is obliged to keep a register of beneficial owners in its offices failure to which the company may be liable for committing an offence which attracts a maximum fine of Kenya Shillings Five Hundred Thousand (Kshs.500,000/=).

Once the register is prepared, the company must lodge the register with the Registrar of Companies within thirty (30) days.

What is the Rationale of Disclosing the Beneficial Owners of a Company?

The rationale for disclosure of beneficial ownership information is in the interest of creating an accurate public disclosure regime that provides transparency in the beneficial ownership and control structures of companies. This aids in not only promoting investor confidence and good corporate governance practices but also in uncovering tax evasion schemes, money laundering practices, corruption schemes, terrorist activities and other illegal activity involving either one or more companies.

Are there internal arrangements that stand to be affected by the BO Regulations?

Yes.

Some of the arrangements that are likely to be affected by this new requirement include nominee shareholders who will now be required to disclose the real details of their principal who is the true beneficial owner.

Companies that use chains of corporate vehicles will also now be required to disclose their real owners.

Holders of multiple voting rights shares exercising at least 10% of the voting rights will now be disclosed.

Conclusion

In view of the fact that the Beneficial Ownership E-register has been operationalized, companies need to comply with the BO Regulations by lodging their beneficial ownership information with the registrar the earliest possible to avoid the hefty penalties that come with non-compliance.

For more specific and comprehensive legal advice on this matter kindly contact our offices at the earliest opportunity.

By Marion Ogeto, Ann Wangui and Sharon Ndinda (Legal Assistants) with assistance from Joyce Muriithi (Associate)

Introduction

The Law of Succession Act (Cap 160 Laws of Kenya) (“the LSA”) has been operational for decades following its enactment in 1981. Prior to the enactment of the LSA, succession matters were governed by a plethora of laws including the African Wills Act (testate succession – where the deceased has a will) and customary law (intestate succession – where the deceased has no will) for Africans. There was also the Hindu Succession Ordnance (intestate succession) and the Hindu Marriage and Divorce Ordnance (testate succession) governing Hindus and the Mohammedan Marriage, Divorce and Succession Act for Muslims. The LSA was therefore enacted in order to consolidate these laws into one system.

Given that the LSA has been operative for many years, it was imperative to revise the Act to bring it into conformity with fundamental societal developments especially gender equality.  To this end, the Senate has proposed amendments to the LSA which are outlined in the Law of Succession (Amendment) Bill 2020 (“the Bill”). The overall effect of the amendments proposed by the Bill is to ensure gender equity is observed in the law of succession in Kenya.

The Proposed Amendments

Some of the proposed amendments captured in the Bill include amendments to the following provisions of the LSA:

1. Dependency clause – section 29, which presently provides the definition of dependents, is to be amended to provide that husbands need not prove dependency as is required under the LSA. The provision would therefore allow either spouse to inherit as a matter of right;
2. Community land clause – section 32, which presently provides for the property excluded from the intestacy provisions in Part V of the LSA, is to be amended to include community land under Article 63 of the Constitution of Kenya thus community land shall be governed by the existing customary law of the respective community;  
3. Re-marriage clause – section 35, which presently provides the manner of distribution of property where the deceased has left one spouse and children, is to be amended to provide either spouse will lose their interest on inheritance if they re-marry. This is different from the current Act where only the widow loses her inheritance interest upon re-marrying;
4. Equal distribution rights between parents clause – section 39, which presently provides the manner of distribution where a person dies intestate and has no surviving spouse or children, is to be amended to provide the first recipients as the parents of the deceased in equal share as opposed to the current provision whereby the father was to receive first before the mother.

An analysis of the effects of the Amendments to the Law of Succession Act (LSA) 1981

The amendments seek to address some of the most pertinent issues that contribute to succession law disputes in Kenya, including:

• Dependency and Gender Equality and in particular the recognition of widowers as dependents in their own right without the need to provide evidence to prove that they were dependents;
• Equal distribution rights between parents of the deceased where it had previously been recognized the father to the deceased had the prior rights to the mother in respect of the estate of the deceased. The proposed amendments will ensure that mothers of the deceased who die intestate are entitled to receive an equal share to their husbands in the event the deceased did not leave behind wife(ves) or children;
• Elimination of former wives automatic rights in the deceased’s estate. The effect of this is to cause former wives who claim a share in the deceased’s estate to firstly satisfy to the courts that they were being maintained by the deceased prior to his death before being entitled to a share of the estate; and
• Re-marriage and what will happen to beneficiaries’ interests upon subsequent marriages.

In particular, the following concerns are addressed by the Bill:

a) Dependency and Gender Equality
b) Communal Land Protection
c) Effects of Re-marriage to succession of the Deceased’s Estate
d) Equal distribution rights between parents of the deceased

Conclusion

Overall, the effect of the amendments has been to embrace the principle of gender equality espoused under Article 27(4) of the Constitution of Kenya into the law on succession in Kenya. It is indeed appalling that the LSA as currently enacted still perpetuates gender biases and differential treatment that is prejudicial to women for the most part. The Amendments to the LSA are therefore a very welcome move to the extent that they promote gender equality.

However, further revision of the Act may be needed to consider the questions of dependents raised above and the termination of the right to inheritance upon re-marriage.

By Antony Mbugua and Sharon Ndinda

Following the global outbreak and spread of the novel Coronavirus (“COVID-19”) many states have been constrained to deploy measures aimed at mitigating the negative effects occasioned by the pandemic. So far, Kenya has reported 715 Covid -19 cases which number is expected to rise over the next few weeks with the continued mass testing of the population. In a bid to contain the virus, the Government of Kenya has enforced certain measures including a partial lockdown of some businesses, a nation-wide curfew and travel restrictions to and from various counties which have recorded a high number of positive COVID-19 cases. As such, Covid-19 has not only affected the health of Kenyans but has also led to a great disruption of businesses and subsequently the Kenyan economy.

Given the unprecedented nature of Covid-19, Kenya, like so many other counties across the world, was not sufficiently prepared to deal with the devastating effects of the pandemic. As such the government has been forced to adopt a reactive approach to dealing with some of the unique effects of the pandemic.

It is in these circumstances that the Senate created an ad hoc committee chaired by Nairobi County Senator Hon. Johnson Sakaja to look into the pandemic and come up with ways through which the government can deal with the health and economic issues brought about by Covid- 19. The Ad-hoc Committee proposed to legislate the Pandemic Response and Management Bill, 2020 which seeks to ensure that Kenyans are cushioned from the negative financial impact of the pandemic. The Bill was debated by Parliament and has been forwarded to the President for assenting. It is pending assenting.

The objects of the Bill are threefold:

1. To provide a framework for the coordinated approach in the response and management of activities during a pandemic;
2. To provide temporary relief from the inability to perform contractual obligations where the inability is caused by a pandemic; and
3. To provide temporary measures to address various matters during a pandemic.

The Bill has made a good attempt in providing a framework for the effective response and management of a pandemic. The Bill has sought to address some of the pressing concerns owing to the pandemic such as employment, loans and mortgages, tenancy and care for vulnerable groups and created relevant institutions.

However, there are a few sectors that have not been addressed such as remote learning in the education sector which has been a subject for debate in the last few months. Further, even though the Bill has attempted to provide economic safeguards for vulnerable groups, there is no provision for identifying and profiling these vulnerable groups into social safety net programmes. The Bill also takes a suggestive as opposed to a mandatory approach on certain key issues such as loans and mortgages. This, in our view, is a risky affair as the likelihood of compliance is significantly diluted.

Additionally, the Bill is silent on catering for the hospital bills and quarantine facilities for vulnerable groups and even more concerning cases of police brutality which has been on the rise since the pandemic began. However, the Bill gives the Cabinet Secretary the mandate to make regulations and any relevant rules or standards as may be required with regards to the pandemic.

Given the fact that the Bill touches on multiple sectors such as the financial services sector, the legal services sector and others, there is need for thorough consultation with representatives from the stakeholders within those sectors. We also feel that there is a need to get more input from economic experts who have raised criticisms with the Bill.

For further details on the bill, kindly click on the links below which explain salient provisions of the bill.

Declaration of a Pandemic by the President
The National and County Pandemic Response Committees
The Pandemic Response Fund
The Provision of Tax Incentives
Loans and Mortgages
Contractual Obligations
Tenancy Agreements
Labour Relations
Information Technology
Penalties and Offences