Kaaya & Memba Law Chambers

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No. Under section 7 of the Matrimonial Property Act, 2013, matrimonial property is divided according to each spouse’s co...
29/08/2026

No. Under section 7 of the Matrimonial Property Act, 2013, matrimonial property is divided according to each spouse’s contribution towards its acquisition when the marriage is dissolved.

Contribution is not limited to money.

Section 2 of the Act recognises both monetary and non-monetary contribution, including domestic work, management of the matrimonial home, child care, companionship, management of family business or property, and farm work. Kenya Law

The Supreme Court settled the position in JOO v MBO; FIDA Kenya & another [2023] KESC 4 (KLR). It held that marriage alone does not automatically create equal co-ownership of matrimonial property. The guiding principle is proved contribution, assessed on the facts of each marriage.

This means a spouse who did not directly pay the purchase price may still acquire a substantial beneficial interest.

For example, one spouse may finance acquisition while the other manages the household, cares for children or carries family expenses that enable the first spouse to acquire property. Kenyan law recognises those contributions.
There is, however, an important distinction where property is registered jointly. Section 14 creates a rebuttable presumption of equal beneficial interests where matrimonial property is acquired in the joint names of the spouses. That presumption may still be examined alongside the evidence of contribution.

The practical question in a matrimonial property dispute is therefore not simply:

“Whose name is on the title?”
It is:
“What did each spouse contribute towards acquiring or improving the property?”

Kaaya Memba & Company Advocates advises Kenyan and international clients on matrimonial property, divorce, beneficial ownership, succession and related family property disputes.
This article is for general information only and does not constitute legal advice.

Under section 16 of Kenya’s Marine Insurance Act, Cap. 390, the insurable value depends on what is being insured. Unless...
29/08/2026

Under section 16 of Kenya’s Marine Insurance Act, Cap. 390, the insurable value depends on what is being insured. Unless the policy expressly provides otherwise or fixes an agreed value, the Act prescribes how ships, freight, cargo and other marine interests are valued.

For goods or merchandise, the position is especially relevant to importers and exporters. The insurable value is not limited to the purchase price of the cargo. It includes the prime cost of the goods, expenses incidental to shipping, and the cost of insurance.

For a ship, valuation is taken at the commencement of the risk and may include the vessel, machinery, stores, provisions, crew-related disbursements and costs necessary to make the ship fit for the contemplated voyage. For freight, the value is the gross freight at the insured’s risk plus insurance charges. Other marine interests are valued according to the amount at risk when the policy attaches, together with insurance charges.

This matters when a marine loss occurs.

If the policy is a valued policy, section 27 generally makes the value agreed in the policy conclusive between insurer and insured, absent fraud. If it is an unvalued policy, the statutory insurable value becomes particularly important in determining indemnity. For a total loss, section 68 links recovery under an unvalued policy directly to that insurable value.

For international traders shipping goods into or out of Kenya, another important rule applies: section 16A generally requires a person with an insurable interest in marine cargo to place that insurance with an insurer registered under Kenya’s Insurance Act, unless the Commissioner grants an exemption.

The practical question after a loss is therefore not simply:
“What were the goods worth?”
It is:
“What does Kenyan marine insurance law recognise as the insurable value under this policy?”

Kaaya Daniel advises Kenyan and international clients on marine insurance, cargo claims, insurance disputes and commercial litigation.
This article is for general information only and does not constitute legal advice

KM Law Chambers has secured judgment for a former toll attendant of Moja Expressway Company Limited after the Ruiru Mag...
29/08/2026

KM Law Chambers has secured judgment for a former toll attendant of Moja Expressway Company Limited after the Ruiru Magistrate Court found that his summary dismissal was substantively unfair.

The dispute arose from a toll transaction involving Kshs. 240 on the Nairobi Expressway. The employer alleged that the employee received the money from a motorist, failed to print a receipt and failed to declare the cash at the end of his shift.
The Court accepted that the employee had failed to print the receipt and that this justified disciplinary action. However, it drew an important distinction between an admitted operational omission and the more serious allegation of dishonesty.

The employer did not produce the audit report, electronic transaction records or evidence showing that the Kshs. 240 had been transmitted to the employee. The motorist was also not called as a witness. The Court held that this evidential gap meant the allegation of deliberate receipt and non-declaration of the money had not been sufficiently proved.

The Court therefore found that, while some misconduct had occurred, the employer had not established a sufficiently serious and fully proved basis for the ultimate sanction of summary dismissal. The dismissal was consequently declared substantively unfair under section 45 of the Employment Act.
The Claimant was awarded Kshs. 155,072, equivalent to four months’ gross salary, together with costs and interest at court rates.

The decision is a useful reminder to employers operating major infrastructure projects, including the Nairobi Expressway, that suspicion or an operational irregularity is not enough. Where dismissal is founded on dishonesty, the factual basis must still be proved.

Sunday Memba Mayama appeared for the Claimant.

Generally, no. Section 16B of Kenya’s Arbitration Act protects an arbitrator from personal liability for anything done o...
28/08/2026

Generally, no. Section 16B of Kenya’s Arbitration Act protects an arbitrator from personal liability for anything done or omitted in good faith while carrying out, or purporting to carry out, arbitral functions.
The protection also extends to an arbitrator’s authorised servant or agent acting in good faith.
However, the immunity is not absolute.
Section 16B does not protect liability arising from an arbitrator’s resignation or withdrawal. More importantly, the statute ties immunity to good faith.
This does not mean an arbitrator is beyond legal scrutiny.
Kenyan law distinguishes between personal liability of the arbitrator and challenges to the arbitral process. A party may still challenge an arbitrator for lack of independence or impartiality, raise jurisdictional objections, or seek to set aside an award under the Arbitration Act.
The High Court in Junction Apartments Limited v C.M Construction (E.A.) Ltd & another [2021] KEHC 429 (KLR) recognised that arbitral immunity protects decisional independence. The proper remedy for dissatisfaction with arbitral conduct will ordinarily lie within the statutory arbitration framework rather than through a personal damages claim against the arbitrator.
For international parties, this is important. Kenya’s Arbitration Act applies to both domestic and international arbitration. Section 16B therefore forms part of Kenya’s framework for protecting tribunal independence while preserving legal mechanisms for challenge and review.
The practical question is therefore not simply, “Can we sue the arbitrator?”
It is:
“What remedy does the Arbitration Act provide for the conduct complained of?”
Kaaya Daniel advises Kenyan and international clients on arbitrator challenges, jurisdictional objections, applications to set aside awards, recognition and enforcement, and Kenya-seated international arbitration.

Can a person who has completed the maximum constitutional term in an independent commission later seek an elective publi...
03/08/2026

Can a person who has completed the maximum constitutional term in an independent commission later seek an elective public office?

That question came before the High Court in Mbugua v Chairperson of the Independent Electoral and Boundaries Commission & 5 Others [2026] KEHC 10125 (KLR).

The petition invited the Court to examine whether constitutional term limits applicable to members of commissions should be treated as a permanent bar against holding a different elective office.

The issue sits at the intersection of constitutional design and individual political rights.

Term limits protect public institutions from personal entrenchment. They promote renewal, accountability and rotation in leadership. However, a term limit ordinarily relates to a particular office. It does not automatically amount to mandatory retirement from all forms of public service or political participation.

Any restriction on the right to vie for elective office must have a clear constitutional or statutory foundation. Disqualification cannot be created merely through assumption, administrative practice or an expansive interpretation of provisions governing tenure in an entirely different office.

The case is particularly relevant as Kenya approaches another electoral cycle. Former commissioners, senior public officers and holders of independent offices must consider not only the constitutional term applicable to their former position, but also the separate eligibility, resignation, integrity and conflict-of-interest requirements governing the office they intend to contest.

The broader lesson is clear: constitutional restrictions must be interpreted according to their text, purpose and institutional context.



Disclaimer: This publication is intended for general legal information only. It does not constitute advice on eligibility for elective office. Eligibility and disqualification depend on the office concerned, the applicable law and the individual candidate’s circumstances.

The Supreme Court has considered the continuing search for accountability following the fatal shooting of Pakistani jour...
31/07/2026

The Supreme Court has considered the continuing search for accountability following the fatal shooting of Pakistani journalist Arshad Sharif by Kenyan police officers.

In Siddique w/o Arshad Sharif & 2 Others v Attorney General & 4 Others [2026] KESC 54 (KLR), Sharif’s widow and media organisations challenged aspects of the Court of Appeal’s judgment concerning the responsibility of State institutions, access to information, investigations, prosecution and appropriate constitutional remedies.

The courts had already recognised that Sharif’s death at the hands of police officers violated his constitutional right to life. General damages of KSh10 million had also been awarded.

The Supreme Court was asked to go further by, among other things, compelling the prosecution of individual officers, enhancing the compensation, ordering broader disclosure of investigative material and directing the State to issue a public apology.

The case highlights an important constitutional tension.

Courts have a duty to provide effective remedies for violations of fundamental rights. However, they must also respect the independence of institutions entrusted with investigations, disciplinary proceedings and prosecutorial decisions.

A court may scrutinise delay, inaction, irrationality or breach of constitutional duty. It will ordinarily not dictate the precise manner in which an independent constitutional office must exercise its lawful discretion.

The decision therefore speaks to two fundamental principles: the State must account for unlawful loss of life, and accountability must be pursued within the constitutional allocation of institutional powers.

Case: Siddique w/o Arshad Sharif & 2 Others v Attorney General & 4 Others [2026] KESC 54 (KLR), judgment delivered on 3 July 2026.



Disclaimer: This publication is a general summary of the legal issues arising from the judgment. It does not constitute legal advice or a complete account of the Court’s findings, orders or the procedural history of the matter.

The Supreme Court has upheld tax exemptions granted to Japanese companies, consultants and employees participating in si...
30/07/2026

The Supreme Court has upheld tax exemptions granted to Japanese companies, consultants and employees participating in sixteen development projects financed under agreements between Kenya and Japan.

In Matindi v National Assembly & 4 Others [2026] KESC 56 (KLR), the appellant challenged Legal Notice No. 15 of 2021. The Notice exempted specified income earned in Kenya by Japanese entities and personnel working on projects covered by bilateral financing agreements.

The challenge raised three major questions.

Could the Cabinet Secretary grant the exemptions through a Gazette Notice? Was the Notice a statutory instrument requiring public participation? Did the exemptions unlawfully discriminate against Kenyan taxpayers?

The Supreme Court held that the Cabinet Secretary acted within the authority delegated under section 13(2) of the Income Tax Act. It characterised the Legal Notice as administrative rather than legislative in nature.

Accordingly, the Notice was not subjected to the public-participation requirements applicable to statutory instruments of a legislative character.

The Court also found that the claim of discrimination had not been proved. A proper assessment of discrimination would have required a substantive challenge to the underlying bilateral financing agreements and their specific terms, rather than to the Legal Notice alone.

The appeal was dismissed, leaving the tax exemptions intact.

The decision is consequential for international development agreements, delegated authority and public finance. It confirms that certain tax exemptions may lawfully be implemented through administrative notices where Parliament has expressly conferred that authority and retained oversight.

Case: Matindi v National Assembly & 4 Others [2026] KESC 56 (KLR), judgment delivered on 17 July 2026.



Disclaimer: This publication is provided for general legal information only and does not constitute tax or legal advice. The validity and application of any tax exemption depend on the governing legislation, the relevant legal instrument and the specific facts.

The Supreme Court has clarified the jurisdictional boundary between the High Court and the Employment and Labour Relatio...
29/07/2026

The Supreme Court has clarified the jurisdictional boundary between the High Court and the Employment and Labour Relations Court in disputes concerning recruitment.

In Moi Teaching and Referral Hospital & 3 Others v Gikenyl & 74 Others [2026] KESC 50 (KLR), the dispute arose from the recruitment and appointment of chief executive officers and managing directors of several State corporations.

The appointments were challenged on allegations that the recruitment process lacked meritocracy and was affected by ethnic marginalisation and other constitutional violations.

The Supreme Court held that the Employment and Labour Relations Court’s jurisdiction is not restricted to disputes arising after an employer–employee relationship has been established. It may also determine disputes involving advertisements, shortlisting, interviews, selection and other pre-employment processes.

However, the identity and legal capacity of the claimant remain crucial.

Where prospective employees or applicants challenge a recruitment process in their employment-related capacity, the dispute may fall within the exclusive jurisdiction of the Employment and Labour Relations Court.

Where public-spirited citizens challenge State organs over broader constitutional violations, the High Court may retain jurisdiction. In this particular case, the petitioners had approached the Court as citizens and human-rights defenders rather than as applicants for the advertised positions. The Supreme Court therefore upheld the High Court’s jurisdiction over the petition.

The judgment provides much-needed guidance for litigants. Choosing the wrong court can result in substantial delay, additional costs and, in some cases, the striking out of proceedings.



Disclaimer: This publication is intended for general legal information only. It does not constitute legal advice. The appropriate forum for a recruitment or employment dispute depends on the pleadings, the parties’ legal capacity and the substance of the claim.

The High Court has delivered a significant judgment on the constitutional limits of regulating online conduct.In Law Soc...
28/07/2026

The High Court has delivered a significant judgment on the constitutional limits of regulating online conduct.

In Law Society of Kenya & 8 Others v Attorney General & 17 Others [2026] KEHC 9453 (KLR), the Court declared sections 6(1)(ja) and 27(1)(b) of the Computer Misuse and Cybercrimes (Amendment) Act, 2025 unconstitutional.

The provisions formed part of legislative measures intended to address unlawful activity in the digital space. However, the Court found that the impugned provisions did not meet the constitutional threshold required when limiting protected rights and freedoms.

The decision reinforces an important principle: Parliament may regulate harmful online conduct, but it must do so through laws that are clear, precise and constitutionally proportionate. Broad or vague provisions risk criminalising legitimate expression and creating uncertainty over what conduct is prohibited.

For journalists, bloggers, content creators, businesses and ordinary social media users, the judgment is an important reminder that freedom of expression remains protected online. That freedom is not absolute, but any restriction must comply with the Constitution.

The ruling also demonstrates the Judiciary’s role in ensuring that technological regulation does not erode constitutional safeguards.

Case: Law Society of Kenya & 8 Others v Attorney General & 17 Others [2026] KEHC 9453 (KLR), judgment delivered on 2 July 2026.



Disclaimer: This publication is intended for general legal information only. It does not constitute legal advice and should not be relied upon as a substitute for advice based on the specific circumstances of any matter. Judicial decisions may be appealed, reviewed or subsequently distinguished.

Some businesses describe themselves as technology companies, payment platforms or digital marketplaces. But under Kenya’...
22/07/2026

Some businesses describe themselves as technology companies, payment platforms or digital marketplaces. But under Kenya’s new Virtual Asset Service Providers Act, what matters is not the label—it is what the business actually does.

A company may require licensing if it operates a virtual-asset exchange, custodial wallet, payment gateway, brokerage, investment-advisory service, asset-management platform, tokenization service, token-issuance platform or stablecoin business.

The Act commenced on 4 November 2025. Existing virtual asset service providers were given one year to comply, placing the statutory deadline on 4 November 2026.

Depending on the service offered, licensing and supervision will fall under the Central Bank of Kenya or the Capital Markets Authority.

Compliance extends far beyond obtaining a licence. Providers must address:

• Anti-money-laundering and counter-terrorism-financing controls;
• Protection and segregation of customer assets;
• Capital, solvency and insurance requirements;
• Cybersecurity and business continuity;
• Data protection and record keeping;
• Customer complaints and conflict-of-interest procedures; and
• Advertising that is fair, accurate and not misleading.

HOW WE HELP

At KM Law Chambers, we assist virtual asset businesses, fintech companies, investors and technology founders with:

✓ Determining whether their activities require licensing;
✓ Identifying the correct regulator and licence category;
✓ Corporate and ownership structuring;
✓ Licence-readiness reviews and applications;
✓ AML, customer-protection and governance policies;
✓ Token-offering and investment documentation;
✓ Technology, custody and service-provider agreements;
✓ Privacy policies, customer terms and marketing reviews; and
✓ Regulatory investigations, enforcement and appeals.

Disclaimer: This publication is for general information purposes only and does not constitute legal advice.


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