WWK Advocates

23/02/2026

Living in a home for 17 years does not, in itself, make it legally yours.

That is the reality recently reaffirmed by the Court of Appeal — a position that many spouses may find difficult, and even unsettling, to confront.

In a recent decision, a long-occupied family home was sold without one spouse’s consent. The emotional investment was undeniable. The years spent there were real. The family life built within those walls was unquestionable. Yet when the matter came before the Court, sentiment alone could not determine ownership.

The judges returned to first principles: legal ownership is not created by assumption, sacrifice, or long residence. It is established through evidence.

So what amounts to proof? What does not? And what does this mean for third parties who purchase property in good faith?

If you believe that marriage, by itself, automatically secures your interest in a home, this decision challenges that assumption. In law, contribution must be demonstrated and substantiated. Love may build a home — but it does not, on its own, create legal ownership.

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03/01/2026

Off-plan “early bird” property arrangements effectively constitute unsecured lending to developers and expose purchasers to substantial risk. The Kenyan real estate market has recorded numerous instances of buyers losing deposit funds paid directly to developers prior to project completion.

In standard conveyancing practice, purchaser funds should only be released upon successful completion and registration of the property in the purchaser’s name, or, where financing is involved, upon registration of the charge. Any advance payments ought to be secured through a jointly controlled escrow account or by way of a bank-issued conditional payment guarantee, redeemable only upon satisfaction of agreed completion conditions.

During the construction phase, developers should rely on their own financing, with early commitments serving solely as evidence of demand to facilitate project funding. Any arrangement requiring direct payment to a developer prior to completion exposes purchasers to avoidable project risk and should be avoided, as such payments amount to unsecured loans to the developer.

06/10/2025

In Ojenge v Mabati Rolling Mills Ltd [2025] KEELRC 2614 (KLR), the Employment and Labour Relations Court examined the significance of procedural fairness in disciplinary proceedings, particularly the obligation to provide an employee with access to the investigation report forming the basis of the allegations against them.

In that matter, the claimant had been terminated on grounds of negligence. The respondent had undertaken internal investigations and prepared a report detailing the findings; however, the report was never availed to the employee. The Court observed that while the employer had demonstrated the existence of valid reasons for termination and had substantially complied with the procedural requirements set out under Section 41 of the Employment Act, the omission to share the investigation report undermined the fairness of the process.

Consequently, the Court held that the failure to disclose the report tainted the disciplinary proceedings and rendered the termination unfair.

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04/10/2025

The Office of the Data Protection Commissioner (ODPC) has imposed a fine of KES 100,000 on a Cyber Café owner for unlawfully uploading a customer’s personal documents to Scribd.

The incident arose after a customer submitted her documents for printing, and the cyber café owner uploaded the same online without her consent, thereby exposing her personal information to the public.

Key Takeaways under the Kenya Data Protection Act (KDPA):

Data controllers include not only organizations but also individuals — Section 2, KDPA.

Controllers must process personal data responsibly while safeguarding individual privacy.

Personal data must be processed lawfully, fairly, and transparently.

Data should only be used for its intended purpose and not in any incompatible manner.

⚠️ Tips When Using Cyber Café Services:

✅ Use incognito/private browsing mode.
❌ Avoid saving passwords or personal information on public browsers.
✅ Clear browsing history after your session.
✅ Cyber cafés should maintain minimal data retention periods, particularly for clients using browsing, printing, or editing services.

23/09/2025

Titles With Defective Roots No Longer Protected

On 21st April 2023, the Supreme Court of Kenya delivered a landmark judgment in the case of Dina Management Limited v County Government of Mombasa & 5 others (2023) eKLR. This ruling has sent ripples across Kenya’s real estate and legal landscapes, redefining the principle of land ownership and the protection offered to bona fide purchasers.

The Ruling

The Court held that the doctrine of bona fide purchaser for value without notice does not apply where a title was illegally or irregularly obtained at the root.

Put simply:

Even if you bought land genuinely, in good faith, and paid full value, your title is not safe if the original allocation or registration was illegal or fraudulent.

A defective root of title cannot be sanitized through subsequent transfers.

This decision has far-reaching consequences:

Due Diligence is No Longer Optional

Buyers and investors must trace the entire history of a title—not just confirm the current entry in the land register.

Accountability in Land Registries

Fraudulent allocations and irregular dealings at the land registry will no longer be hidden under “innocent purchaser” protections.

Basic Due Diligence Checklist for Land Buyers in Kenya

1.Conduct an Official Title Search at the Lands Registry.

2.Examine the Root of Title – review allocation letters, grants, or transfers from the very beginning.

3.Check County Records for planning, zoning, and rates compliance.

4.Confirm with the National Land Commission (NLC) if public land is involved.

5.Engage a Lawyer and Surveyor to verify boundaries, maps, and encumbrances.

6.Investigate for Pending Disputes in the Environment and Land Court (ELC).

The Supreme Court’s ruling in Dina Management Limited v County Government of Mombasa & others fundamentally changes how Kenyans must approach land transactions.

It is no longer enough to rely on the doctrine of bona fide purchaser. The burden now falls on buyers, investors, and financial institutions to conduct thorough due diligence.

Because in the eyes of the law:

A title with a defective root is no title at all.

25/08/2025

The Court of Appeal in Musa v Musa & 6 Others [2025] eKLR cancelled all entries in the register relating to a parcel of land, including all charges in favour of a bank, on the basis that the borrower did not have a valid title as a bona fide purchaser. It directed that the property revert to the estate of the deceased.

Briefly, the administrator of the Estate sold the land to her brother, which was part of the deceased's estate, before confirmation of Grant of Letters of Administration Intestate. The Law of Succession Act prohibits the sale or transfer of any capital assets such as land before the grant is confirmed.

The brother subsequently used the property as a charge to a bank for KES 20 million. Some of the beneficiaries contested the sale and transfer on the basis that it did amount to intermeddling and moreso the property had not vested in the administrator per the Law of Succession Act.

The brother claimed being an innocent purchaser for value without notice, but failed to demonstrate having undertaken "sufficient enquiries" into the root of the title of the property.

Judges of Appeal Ngugi J, Kimaru L and Omondi HA relying on the often-cited Dina Management Case found that property due diligence would have revealed, among others, that there was no lawful transmission of the land to the administrator per the Law of Succession Act. The administrator could therefore not pass a valid title to any other person. All subsequent transactions in relation to the property, including the charge, were null and void.

11/08/2025

Case Citation: HCCA/E119/2024 – High Court at Nairobi (Musyoka J.)

Statutory Provision: Section 34(1), Small Claims Court Act, No. 2 of 2016.

Issue:
Whether the 60-day period prescribed under Section 34(1) for hearing and determination of claims before the Small Claims Court is mandatory or directory.

Holding:
Section 34(1) imposes a mandatory jurisdictional limit. The Small Claims Court must determine a matter within sixty (60) days from the date of filing. Upon lapse of that period, the Court’s jurisdiction is extinguished and any judgment or order made thereafter is a nullity ab initio.

Ratio Decidendi:
The statutory timeframe under Section 34(1) is couched in peremptory terms and admits no discretion. The legislative intent is to ensure expeditious disposal of small claims. Jurisdiction is conferred subject to strict compliance with the prescribed period; failure to comply results in the automatic cessation of the Court’s authority to determine the matter.

Implications for Practice:

For Advocates: Time management is critical; once the statutory period lapses, no procedural or substantive measure can validate the Court’s decision.

For Litigants: The statutory guarantee of speed in the Small Claims Court is not merely aspirational; delays beyond 60 days will vitiate proceedings.

Core Holding:

60-day limit from filing to determination is mandatory.

Time limit is jurisdictional, not procedural.

Jurisdiction lapses automatically once the 60 days expire.

Any judgment delivered after expiry is null and void ab initio

10/08/2025

Kenyan Court Affirms Dismissal Over Secret Workplace Recording

A recent Kenyan court ruling upheld the termination of an employee who secretly recorded colleagues and forwarded the audio to the CEO. The employee argued the recordings were meant to defend himself in a workplace dispute, but the court found that he had violated the privacy rights of others.

⚖️ LEGAL BREACHES & KEY TAKEAWAYS
1. Violation of Article 31, Constitution of Kenya – Right to Privacy
Incident:
The employee recorded conversations of co-workers without their knowledge or consent, later using the material in a dispute with management.

Lesson:
You cannot claim your own privacy rights while infringing on the privacy of others. Privacy is a shared legal protection, not a selective privilege. Always follow proper grievance procedures or obtain the necessary authorization rather than engaging in covert surveillance.

2. Breach of the Data Protection Act, 2019
Incident:
The recordings captured personal and workplace information, shared without the consent of the individuals involved.

Legal Context:
The Data Protection Act prohibits collecting, processing, or sharing personal data without a lawful basis or consent. While the Act may not have been directly referenced in court, the employee’s conduct clearly breached the principles of informed consent and lawful processing.

Lesson:
Handling personal data in any form—especially in a workplace—must comply with data protection laws. Unauthorized recordings can lead to both civil and criminal liability.

05/08/2025

Kenya’s courts have up-ended a long-standing industry practice by ruling that commercial banks may not adjust loan interest rates unless the Treasury Cabinet Secretary has personally signed off, invalidating a 2006 legal notice that had delegated this power to the Central Bank of Kenya (CBK). In separate cases the Supreme Court ordered Stanbic Bank to refund a client more than Sh10 million and the High Court directed Spire Bank Kenya to recalculate a facility whose rate it had raised to 32.5%, holding that the CBK’s approvals were legally worthless because section 44 of the Banking Act vests the authority and the responsibility squarely in the minister. The decisions expose lenders to billions of shillings in potential claims on loans repriced during the recent rate-hiking cycle, when average bank lending rates jumped from 12.4% in late 2022 to 17.2% a year later.

Alarmed, the Kenya Bankers Association has returned to court for a third attempt to overturn or stay the section, warning of an “avalanche” of suits even as non-performing loans have already swelled to Sh724 billion (17.6% of the loan book) amid costly credit and economic strain. Should the rulings stand, every future rate change even those driven by monetary-policy moves will require formal Treasury approval, thrusting the ministry back into a gate-keeping role it relinquished nearly two decades ago and raising fresh uncertainty over banks’ pricing power, compliance processes and capital buffers.

14/07/2025

Imagine a Kshs. 4 million loan ballooning to over Kshs. 69 billion!!This astonishing figure was at the heart of a recent landmark decision by Kenya's Court of Appeal in Kanwal Sarjit Singh Dhimman v Keshvaji Jivraj Shah, where a 36% annual interest rate, compounded quarterly over 3 decades, led to an "oppressive and unconscionable" outcome.

The Court meticulously applied the doctrine of unconscionability, emphasizing two key tests:
1. Procedural Unconscionability: This examines how the contract was formed. Was there an imbalance in bargaining power? Was one party vulnerable, ignorant, or subjected to undue pressure or deception? Were terms hidden in fine print?
2. Substantive Unconscionability: This scrutinizes the terms themselves. Are they excessively harsh, oppressive, manifestly unjust, or unreasonably favouring one party?

The Court affirmed that while it won't rewrite "bad bargains," it will intervene when contractual provisions "shock the conscience of the court" and undermine principles of fairness and good faith. The sheer disparity between the original loan and final amount due was deemed commercially unreasonable and unconscionable, leading to the contract being declared void.

The case also touched on the legality of individuals lending money with interest, particularly concerning the Banking Act. The appellant argued that the loan was illegal as the lender was not a licensed institution. However, the Court clarified that the Banking Act primarily applies to banking institutions engaged in the regulated business of lending.

The Court distinguished between a "friendly loan" between individuals and habitual lending that mimics banking operations. It held that there's no law prohibiting individuals from lending money to each other with interest, unless there's evidence that the individual is habitually engaged in such business, effectively acting as a banking institution "by stealth or in the shadows."
Key Takeaways for me:
Contract Drafting: Pay meticulous attention to interest rates and compounding clauses. Ensure terms are not only legally sound but also equitable and commercially reasonable to withstand scrutiny for substantive unconscionability.
Balanced Bargaining and legal representation: Advise clients on the importance of balanced bargaining power, ensure independent legal advice and transparent contract negotiations to mitigate claims of procedural unconscionability.
Lending Practices: For individuals or entities involved in frequent lending, assess whether your activities cross the threshold into "banking business" requiring a license under the Banking Act or any other statute. The "friendly loan" exception is narrow.

20/05/2025

In a landmark decision with far-reaching implications for Kenya’s insurance sector and tax administration, the High Court in Nairobi has ruled that tied insurance agents are not employees and therefore not subject to Pay As You Earn (PAYE).

The case originated from a 2022 dispute where KRA, through its Legal Services and Board Coordination department, assessed PAYE taxes on commissions paid by CIC to its tied agents. KRA argued that these agents operated under employment-like conditions and thus met the legal definition of employees. The Tax Appeals Tribunal disagreed, ruling in favor of CIC. KRA challenged that decision in the High Court.

Central to the dispute was the classification of tied agents—individuals who exclusively sell insurance products for a single company and are paid commissions. KRA insisted that the nature of the relationship, including exclusivity clauses, control over performance, and benefit schemes like pensions, pointed to an employer-employee setup. It leaned heavily on legal tests from UK and South African jurisprudence to argue that CIC’s agents should be treated as salaried workers for tax purposes.

CIC, on the other hand, maintained that the agents were independent contractors, pointing to express language in their contracts, flexible working hours, performance-based remuneration, and the absence of statutory employment benefits such as leave or guaranteed retainers. The insurer relied on multiple Kenyan precedents affirming that commission-based agents do not meet the legal threshold for employee classification under the Employment or Income Tax Acts.

Justice Rutto agreed with CIC’s position, noting that the statutory framework under the Insurance Act clearly defines an agent as a person who is “not a salaried employee” and who earns commission. She emphasized that taxation must respect the distinct definitions across legislation and that KRA could not override the Insurance Act by broadly interpreting employment for tax purposes. PAYE, she ruled, is only applicable when there exists an employment relationship—something absent in this case.

In a notable passage, the judge rejected KRA’s argument that the control test alone was sufficient to establish employment. “The terms are clear regarding the nature of the relationship between the parties,” she wrote. “The commissions earned by the agents are subject to Withholding Tax, which the Appellant does not appear to dispute. Accordingly… the commissions are not subject to PAYE.”

The judgment echoes prior decisions involving Liberty Life and UAP Insurance, where courts similarly found that tied agents operate outside the bounds of formal employment.

The High Court’s decision not only shields CIC from a potentially significant PAYE liability but also sets a precedent likely to influence KRA’s audit strategy going forward.