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:: The Legal System
Over View
Kenya has a well-developed legal system, partially inherited
from its colonial past, with English common law forming
the basis, combining with traditional customary law
and elements of Islamic law in the realm of marriage
and succession. Business enterprises range from limited
companies of various forms, branch office registration,
and partnerships.
Trusts are recognised and land law
is a mixture of English statutes, Indian colonial laws
and local codes. Statutes that govern the business and
commercial area are:
- The Companies Act,
- The Insurance Act,
- The Banking Act,
- The Kenya Communications Act,
- The Capital Markets Act,
- The Investment Promotion Act,
- The Environmental Management and Co-ordination
Act,
- The Transfer of Businesses Act,
- The Trade Marks Act,
- The Arbitration Act,
- The Restrictive Trade Practices,
- Monopolies and Price Control Act,
- The Retirement Benefits Act,
- The Partnership Act and various statutes providing
for land titles (leasehold and freehold).
Kenya has a three tier courts system
–
- Magistrates,
- High Court and
- Court of Appeal. J
Judicial proceedings are slow and inefficient
and sometimes are tainted by corruption. The courts
are overloaded with lack of capacity caused by failure
to invest adequately in technology and training. As
a result many litigants resort to arbitration for resolving
their differences.
Membership of COMESA and the EAC also
provides recourse for appeals in treaty-specific areas.
There are public registries for lands, companies, trade
and service marks, designs and patents – although
most require a major modernization exercise.
Statutory protection of intellectual
property rights exists and Kenya is a signatory to the
Paris and Berne Conventions, the TRIPS Agreement, the
ARIPO (Harare) Protocol and the Madrid Agreement and
Protocol.
There is provision for enforcement
in Kenya of certain foreign judgments and arbitration
awards. Kenya is a signatory and has adopted the 1923
Protocol on arbitration clauses of the League of Nations
and the 1958 New York Convention on the Recognition
and Enforcement of Foreign Arbitral Awards. The Arbitration
Act 1995 embodies most of the provisions of the UNCITRAL
model law.
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