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Bowmans Expands its Tax Practice in East Africa

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Bowmans has made a substantial investment in its tax capacity in East Africa by expanding its Tax Practice in Nairobi with recruitment of four (4) associates. Senior Associates, Fredrick Ogutu and Patience Mbugua, joined the firm on 1 May 2022. This is in addition to Associates Lynet Mwangi and Bernard Kirii who joined the firm on 1 March 2022, adding further depth to the firm’s tax service offering.

Before joining Bowmans, Fredrick was a manager in the tax and legal department of audit firm Deloitte & Touche LLP. He has extensive experience in providing tax advisory on both local and international/cross – border tax issues, tax restructuring, tax support in mergers and acquisitions, tax due diligence, tax dispute resolution, tax compliance and assessment of tax risks across various sectors.

Patience Mbugua previously worked in the tax dispute resolution department of the Kenya Revenue Authority (“KRA”), where she gained considerable experience in handling tax disputes involving taxpayers in various sectors. Prior to that, she worked for an audit firm, PricewaterhouseCoopers (PWC) and has considerable experience in providing a wide array of tax services including direct and indirect tax compliance, tax reporting, tax advisory, KRA audit support, tax dispute and tax litigation.

Lynet previously worked in the tax and regulatory services department of audit firm, KPMG East Africa, as well as Dentons Hamilton Harrison & Matthews. She has wide experience providing tax services, including tax advisory and structuring, KRA audit support, tax dispute resolution and regulatory compliance. Bernard Kirii joined Bowmans from KPMG East Africa, where he specialized in tax dispute resolution services for clients; tax optimization; tax restructuring; and tax advisory services, including mergers and acquisitions.

According to Bowmans, the expanded tax team helps expand the firm’s tax offering especially by providing additional assistance in mergers and acquisition transactions, including undertaking tax due diligence reports; tax restructuring and optimization involving both local and international/cross border entities; assistance with KRA audits; and conducting tax health checks on all tax heads. These services are in addition to the current tax advisory and tax dispute resolution services provided by Bowmans.

“We are pleased that the team has chosen Bowmans as their new home, and we are confident that they will enhance the tax service that we offer our clients across our geographical footprint,” said Bowmans Tax Partner and Head of Tax Practice Alex Mathini. Alex has been ranked by Chambers & Partners for the last six (6) consecutive years and Chambers Global Guide 2022 ranks Alex among the Top 2 Lawyers in Tax Law in Kenya.

In addition to Alex and the four new associates, Bowmans Tax Practice in Nairobi includes Andrew Oduor (Tax Partner), Samuel Githanda (Senior Associate), Nelly Chepkoeach (Associate) and Maurice Muma (Associate). Andrew Oduor is a tax practitioner of sixteen (16) years who is active in tax litigation, tax compliance and tax advisory services. He is the Kenyan contributor to an annual Global publication by Thomson Reuters Practical Law on Tax Litigation in Kenya.

Law Firms

The Unfolding Scenario of Digital Lending Regulation in Kenya

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Digital revolution has paved way for financial inclusion in Kenya. This revolution has changed how Kenyans’ access money, borrow money and save/store money. The growth of financial access through technology, Fintech solutions, has provided financial intermediation between many Kenyans were either underserved or unbanked.

This has, in turn, led to the mushrooming of digital lenders and lending platforms, which have dismantled traditional barriers and reduced bureaucratic hurdles that previously hindered Kenyans from accessing credit.

Unfortunately, this ease of access to credit has come with an unbearable burden on borrowers. Kenyans have complained of:

  1. High default rates among digital credit borrowers, leading to severe implications for negative listings at Credit Reference Bureaus (CRBs);
  2. Defaults triggering aggressive loan recovery tactics, including calls made to borrowers’ social networks, such as families and friends, for repayment;
  3. The pricing of loans, particularly the ambiguous application of interest rates and onerous penalty rates that render loans unpayable; and
  4. Digital lenders serving as obvious avenues for money laundering.

There was therefore need to regulate this sector and a public outcry from Kenyans to be protected from digital lenders who were operating like shylocks.

This led the government to initiate regulatory and supervisory reforms for digital lending, and in 2021, the Central Bank of Kenya (Amendment) Act empowered the Central Bank of Kenya (CBK) to license and oversee digital lenders. The Act refers to digital lenders as Digital Credit Providers (DCPs). Subsequently, in 2022, the CBK issued the Central Bank of Kenya (Digital Credit Providers) Regulations, which required all DCPs to apply to the CBK for a license.

ARE DIGITAL CREDIT PROVIDERS ONLY THOSE WHO LEND DIGITALLY?

Section 2 of the CBK Act states that;

“digital credit” means a credit facility where money is lent or borrowed through a digital channel;

“digital channel” means the internet, mobile devices, computer devices, applications and any other digital systems;

“digital credit business” means the business of providing credit through a digital channel;

“digital credit provider” means a person licensed to carry on digital credit business;

From a literal interpretation of this provisos, it can be easily assumed that any business that does not offer credit through digital channels is not a digital credit provider. The regulations also interchangeably use the word digital channel with the word platform.

This means that any lender who does not have a digital platform where Kenyans can apply for or receive a loan amount may of the considered view that they are not a digital credit provider. This interpretation led to many credit providers who still rely on non-digitized loan application forms and disburse funds through cheques or cash to not apply for the DCP License.

However, the question that begs is whether this literal interpretation aligns with the intention of the legislators when drafting the said provisos and regulations.

REASSESSING CBK’S OVERREACHING INTERPRETATION OF DIGITAL LENDING OVERSIGHT

Despite the literal interpretation that seems obvious from the reading of the legislation, CBK seems to take the mischief rule in interpreting these provisions. The mischief rule of interpretation means that CBK is looking at what the provision and regulation was meant to cure.

The effect of CBK’s interpretation is to bring every unregulated lender under its purview through licensing, regulation, supervision. Our opinion is based on the communication excerpt below from the Central Bank of Kenya.

We do not agree with this interpretation because it subjects all lenders to CBK supervision, regardless of their debt book, the nature of their lending, and the size of their debt portfolio. However, the Act and the regulations were meant to regulate businesses that lend through digital channels/platforms. While we disagree with this interpretation, the CBK has made it clear that businesses should not offer credit facilities without the required license. This position has not been challenged in court and thus remains the CBK’s stance.

MMW Advocates LLP is one of Kenya’s largest female-led law firms with a focus on positively impacting the commercial ecosystem with out-of-the-box solutions.

MMW Advocates was birthed from a different breed. A breed that believes that the law should not be rigid and uncompromising. Instead, it should be a tool for commercial solutions. For this reason, the firm’s rallying call is – Think Differently-Solve Innovatively.

It is no wonder that it has cultivated trust from Multi-National Corporations and the Public Sector with bold footprints in Africa, Asia, Europe, and North America.

MMW Advocates continuously sets the pace for emerging commercial laws and jurisprudence and is an ideal partner for any entity that is keen on being a part of Africa’s commercial development story.

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A Toolkit for Customers on accessing Financial Services in Kenya

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Financial service providers such as banks, SACCOS and other institutions offer customers products and services that empower them to manage and grow their financial resources. As part of our Initiative to raise Financial awareness during Global Money Week, 2024 we have summarized some of the matters Customers should consider when accessing financial services:

  1. Tariffs and Commissions

As with any business, Financial Institutions charge customers for their products and services. These charges, more commonly known as Tariffs and Commissions, are levied on the Institutions offerings, and are not limited to fees charged on transactional accounts, loan accounts, credit cards and the various channels customers transact across. Financial institutions are required to advise their customers about applicable tariffs they will pay for day-to-day running of the account. Customers should be aware that it is best practice for these Financial Institutions to notify their customers at least 30 days in advance or before material account changes are effected.

  1. Loans and Change of Interest or Profit Rates

Interest Rates that are charged when a customer secures a Loan with a Financial Institution may from time to time be reviewed by their Financial Institution. In such an event the Financial Institution should inform their consumer on the change the interest rates on accounts and should provide notice in line with standard notification practice. For Islamic banking customers on the other hand term “Interest” does not apply but rather Profit and as per Shari’ah Principles, once a contract of financing has been signed between the bank and the customer, none of these parties has the right to change the profit rate, regardless of the fluctuation of rates in the market.

  1. Rights to accurate reporting and confidentiality

In as much Customers do make a lot of effort to repay their Loans there are circumstances under which some Customers have often found that their details have been inaccurately published by the Credit Reference Bureau therefore being detrimental to any future borrowings. Customers however have the right to dispute any inaccurate information published by the Credit Reference Bureau, including incomplete or inaccurate information and there are laws and regulations on how to settle these disputes.

  1. Closure or Freezing of Accounts

Some Customers may experience the closure of freezing of accounts. It should be noted that unless there are exceptional circumstances, a bank should not suspend or close an account without giving the account signatory at least a 14 day notice. However, if the Bank is required to freeze the account in compliance with statutory requirements or legal obligation, a post freeze notice should be given to the customer promptly.

  1. Reporting on Unclaimed Financial Assets

Lastly, Financial service providers such as banks are required on an annual basis to hand over to the Unclaimed Financial Assets Authority any unclaimed deposits (cash, cheques, and other assets of financial value) that have not been accessed by the customer in over 2 years. Therefore, customers must ensure that they transact on their accounts so as to prevent their account from falling dormant. In conclusion, Article 46 of the Constitution of Kenya (2010) sets out laws and acceptable practices that the providers of goods and services should adopt when engaging consumers. In addition to the Constitution, the Consumer Protection Act 2012 prevents unfair business practices in consumer transactions. Both Financial Institutions as well as their customers should familiarise themselves with these laws.

About the Author: HMS Africa Advocates LLP is among the foremost innovative and full-service Law Firm in Kenya. The firm serves clients in diverse sectors and areas including Banking and Financial Sector, Real Estate and Construction, Corporate and Commercial Sectors and Litigation and Dispute Resolution. The firm  clients extend across the globe with a presence in Kenya, Tanzania, Uganda, Ghana and Egypt. 

This article is for general informational purposes only, it is not, and is not intended to, constitute legal advice. Should you require any further information, please do not hesitate to contact HMS Advocates LLP at info@hms.africa.

HMS Africa Advocates LLP is considered the foremost innovative and full-service Law Firm in Kenya. Our Clients navigate and transact in diverse sectors with new and evolving opportunities. Our services to our Clients extend across the globe with a presence in Kenya, Tanzania, Uganda, Ghana and Egypt. In a constantly changing environment, we apply a bespoke approach to resolving the legal challenges posed across industries and jurisdictions ensuring the best possible results for our clients.

Our Firm was founded in 2016 by leading independent Legal minds and industry professionals who are united by a shared vision and dedicated to achieving excellence legal practice. We nurture a forward thinking mindset, collaboration and corporate responsibility and are committed to creating a better future for our clients and the communities around us.

We are achieving our Firm’s vision through an inclusive outlook which guarantees tailor made solutions for our valued Client’s and our team has developed expertise in the following areas: Banking, Financial Services & Insolvency, Corporate and Commercial Law, Employment and Labour Relations Law, Tax Law, Real Estate and Construction Law, Immigration, Litigation & Dispute Resolution, Intellectual Property and
Technology, Media and Telecommunications (TMT).

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Top 25 Law Firms in Kenya 2024: Githuku & Githuku Advocates LLP

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GITHUKU & GITHUKU ADVOCATES LLP

Established in 2016| Partners: 2 | Principal Office: Nairobi

Contacts: Kose Heights, 3rd Floor, Apartment F 3.4, Argwings Kodhek Road, Hurlingham, Nairobi, Kenya.

Telephone: (+254) 725 759 887 / (+254) 723 634 410

Email: info@githukuadvocates.co.ke; githukuadvocates@gmail.com

Website: www.githukuadvocates.co.ke

Download: Githuku & Githuku Advocates LLP Profile (PDF)

The Firm

Githuku & Githuku Advocates LLP is a full-service law firm that constitutes of several advocates, legal consultants and a number of paralegal and administrative staff. The firm was established in April 2016 by the founding partners Hannah Wangui Githuku and Dianah Wanjeri Githuku. The firm’s vision is to provide legal services to all businesses, institutions or persons, to offer practical solutions to our clients and to be universally recognized as a full-service law firm.

The firm undertakes to embrace client’s needs and address them soundly by offering turn-around time, to enable them make informed decisions. The firm has a reputation for providing exceptional legal services. The firm lawyers are renowned for their commitment to excellence and for ability to find innovative solutions to the most complex of legal problems which clients recognize and value.

The firm currently has offices in the prestigious environs of Hurlingham area at Kose Heights Building 3rd Floor Suite F3.4 located on Argwings Kodhek Road, Nairobi. It has associate lawyers and consultants to enable the firm deal with matters across the country under one umbrella. The firm stands out for its resolve to provide amicable and effective solution-oriented services in a timely manner to its clients and offers the full spectrum of legal service and aid to a diverse clientelle base.

Practice Areas

Githuku & Githuku Advocates LLP offer a diversity of expertise in all areas of major practice. The firm lawyers offer a full complement of Legal Services in the following practice areas: Property and Conveyancing Law, Corporate and Commercial Law, Tax Law, Constitutional/ Administrative Law, Competition Law, Contracts Law, Labour and Employment Law, Insurance Law, Intellectual Property Law, Notarial Practice, Family Law, Administrative and Public Law, Banking and Finance Law, Energy Law, Legal and Governance Audit, Probate, Succession and Trusts, General Litigation/Alternative Dispute Resolution, Consultancy on matters of law and Entertainment Law.

Firm Partners

Hannah Wangui Githuku is an Advocate of the High Court of Kenya of 15 years standing and the Partner in charge of Legal Research, Conveyancing and Commercial Department. She holds a Masters Degree in International Studies from the University of Nairobi, a Bachelors of Laws Degree from the University of Nairobi and a Post Graduate Diploma in Law from the Kenya School of Law and one in Human Resource Management from the Institute of Human Resource Management. She is also a qualified Tax Agent. She has extensive high-level experience in Commercial matters, Conveyancing, Civil and Criminal litigation, Company Secretarial and Preparation and Reviews of Agreements for Sale, Leases, Transfers, Charges, Discharges of Charge, Chattel Mortgages, Debentures and Registration of Documents. She has recognized as one the top 100 lawyers in Real Estate and Finance Law in Kenya.

Dianah Wanjeri Githuku is the Partner in charge of Litigation, Consultancy, Taxation and Legal Audit Department, an Advocate of the High Court of Kenya of 14 Years standing, a Tax Agent, a Patent Agent, a Notary Public and Commissioner of Oath. She holds Bachelors of Law Degree from Catholic University of Eastern Africa (CUEA), a Post Graduate Diploma in Law from the Kenya School of Law and is pursuing her Masters in Leadership and Governance. She has broad experience in litigation and commercial law gained working for leading firms and the legal department of Kenya Revenue Authority (KRA) where she prosecuted complex and high value tax cases on behalf of KRA in Commercial, Constitutional and Judicial Review Divisions and Tax Appeal Tribunal. She has vast training and exposure in negotiation, drafting and management of contract, oil and gas contracting and trial advocacy.

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