Category Archives: Kenya parliament

Draft banking conduct and consumer finance laws in Kenya

In a move that may weed out practices that led to the introduction of interest rate capping, the Kenya government has developed a draft Financial Markets Conduct Bill for consumer finance protection.

Some clauses in the bill of interest:

  • Advertising: A person without a financial conduct license cannot put out an advertisement for the provision of credit. This also applies to building owners (billboards?), or in newspapers, magazines, radio, television.  Also, lender advertisements must be truthful. They cannot be misleading by deception.
  • Credit Limits – cards/overdrafts: Once a credit limit is approved, a financier can’t reduce the credit limits or decline to replace a lost credit card
  • Credit ReferenceNo release of  credit reports to unauthorized people
  • In-Duplum: There is also roundabout way of reintroducing the in-duplum rule. There is a clause that if a loan goes into default, the interest, fees, and other charges to be repaid cannot exceed the balance of the loan on the day it went into default.
  • Insurance: Loans cannot require a borrower to get insurance from a specific company.  
  • GuarantorsThe new laws protect guarantors and requires that they be made aware of all clauses in loan contract before they give guarantees, and with no variation to guarantor terms allowed. This is probably inspired by one guarantor and default dispute involving a cousin of the President that has seen over a dozen cases litigated in several courts over 25 years.
  • Pre-Receivership Management:  The Central Bank of Kenya (CBK)  can appoint a person to assist an institution to implement its directives when the CBK believes a bank or its officers are not in compliance with the act. The new law provides tools to assist troubled banks without shutting them down, and CBK can also order some shareholders to wind down their interest in institutions within a specific time.
  • Spam messages? Bank shall not communicate marketing messages to customers unless the customer loan agreement authorizes it.  
  • Statements: Requires all borrowers to be given term sheets before signing for loans, and a  copy of the loans contract afterwards. They are also entitled to a free statement every six months and other copies within ten days of a request.
  •  Variations: loan agreements shall not have clauses to vary interest during the loan, or be based on a different rate other than the reference rate of the lender.  
  • Wide Regulation: The new laws will apply to all providers of more than fifty loans and issuer of loans have six months to obtain the new licenses. What of loan apps?

Whether this new law which cracks down on unsavoury banking and consumer finance and behaviors will ease out the 2016 interest rate capping law while assuring parliamentarians who  championed the setting of maximum interest rates that bank behaviour will be better-regulated remains to be seen. Also if the clauses will help borrowers who have shifted to other more expensive lending platforms regardless of the consumer finance terms and interest rates charged there.

But the bill also creates a host of new financial regulators including; (i) a Financial Markets Conduct Authority (ii) Financial Services Tribunal (iii) Conduct Compensation Fund Board (iv) Financial Sector Ombudsman (v) an Ombudsman Board who may trip over other existing financial regulators.The bill is in the public participation stage and interested persons can send in feedback on its clauses to ps_at_treasury.go.ke before June 5.

Kenya Income Tax Cuts, Increases, and Other changes 2018

The Kenya government, through the National Treasury, is proposing some long overdue changes to the country’s income tax laws, which are contained in a draft bill that will be submitted to Parliament.

The bill has new clauses that affect transfer pricing, new extractive (oil & gas) industries, phase out of turnover tax, and an apparent tax cuts. It comes after other recent changes to the tax code. Kenya also has an ongoing waiver and amnesty program for income tax and assets held outside Kenya to be declared and repatriated to the Kenya Revenue Authority (KRA)  by June 30.

Leading accounting and audit firms such as KPMG, PWC, and Deloitte have looked deep into the clauses, and these are some of their findings: 

KPMG:

  • Companies are to produce and maintain transfer pricing documentation and policies in place for the year of income.
  • The withholding tax threshold of Kshs 24,000 had been deleted.
  • Payments to non-resident petroleum contractors will be 20% (up rom the current 12.5%)
  • Developers who build over 400 houses to pay taxes of 15% on gains.
  • Micro-finance institutions (MFI’s) interest will be exempt from withholding tax.
  • Sports clubs & associations will get taxed on entrance fees and subscriptions.
  • Farms, warehouses or doing consultancy work for more than 91 days in a year are now considered permanent establishments. KPMG comment – This will require non-resident persons doing business in Kenya to re-think their operational models.
  • A listed company will pay 25% taxes for five years if 40% of its shares are floated.  KPMG  comment – this will reduce the impact of taxation as an incentive to list.

Deloitte:

  • Income tax rate of 35% on more than Kshs 750,000 (~$7,500) per month
  • Non-residents’ who receive their pensions in Kenya will pay a tax of 10% on transfers (up from 5%) 
  • A higher corporate tax of 35% for large companies with taxable income over Kshs 500 million (~$5 million).
  • Real-estate capital gains tax of 20% (up from the current 5%). Deloitte comment – Though the increment is quite steep, it enhances equity considering that CGT is regarded as a tax on wealth.
  • Equality: Each person in a marriage is now required to file their own tax returns: no more cases of wives having their incomes filed under husband’s income tax returns.  
  • Mining & Oil: Losses can be carried forward for a maximum of 14 years (There is no current cap)
  • EPZ holiday removed: Now EPZ’s will pay 10% tax for the first 10 years, and 15% for the next ten years (other companies pay 30% corporate tax).
  • SACCO’s: Cooperative societies to pay a withholding tax on dividends and bonuses of 10% (up from the current 5%) 
  • Subsidiaries in Kenya to pay 10% tax on dividends remitted to the parent companies.
  • E-commerce: The Treasury Cabinet Secretary will be allowed to introduce taxes on digital platforms.
  • Capital allowances reduced: The 150% allowance for investments outside cities has been removed, those for filming equipment reduced from 100% to 50%, and educational institutions from 50% to 10%.
  • Small businesses, that are licensed by counties, will pay a presumptive tax of 15% of the business permit fee. Deloitte comment – (this) replace the turnover tax, currently at the rate of 3% of a person’s turnover (KRA has faced challenges collecting) ..  will require collaboration with the county governments. 

PWC

  • All medical insurance paid by employers for employees is now tax-exempt (even for expatriate staff) and age limits for children covered goes up from 21 to 24 years.
  • withholding tax of 5% will be levied on payments to foreign insurance companies. PWC comment – this is aimed at promoting local insurance companies.
  • Income tax exemptions that have been dropped include income of the Export-Import Bank of the USA (relates to Kenya Airways?). Also on the income of stockbrokers from trading in listed shares. PWC comment – this may have a negative impact on the growth of the capital markets in Kenya;
  • 20% withholding tax on payment to non-Kenyan companies for horticultural exports. 
  • 20% withholding tax on payment of air-tickets to non-resident agents. PWC comment – may lead to increase in airline ticket prices in Kenya which may affect competitiveness of local airlines.

They also looked at other recent tax adjustments which PWC notes will mainly alleviate the government from paying VAT refunds.

  • Milk, maize, bread, bottled water, will all cost more after moving from “0%” VAT to “exempt” VAT as importers will pass on non-recoverable VAT to consumers.
  • Same for LPG gas, some medicines and agricultural pest control inputs.
  • Making housing affordable. PWC comment – the Government is also proposing a stamp duty exemption for the purchase of a house by a first time home owner under an affordable housing scheme
  • Betting/Gambling: For winnings, a 20% tax will be deducted at source i.e the betting company) on any prizes (this is up from the current 5%)

Other Clauses in the Income Tax bill

  • Parent companies are to file country-by-country reports with KRA within 12 months of year-end.
  • No capital gains tax is due on land if it is compulsorily acquired by the government.
  • No capital gains on listed securities.  
  • While there is a new 35% tax for the rich, the income tax bill appears to lower taxes for the low-income.  e.g. someone earning Kshs 40,000 (~$400) per month, who pays 5,932 in tax per month now after personal relief, will have a lower tax burden.  Income tax bands are expanded in the 10% range (now up to 13,000 from the previous 10,000) and there is also a higher relief of Kshs 1,408 versus the current 1,162) and the resulting net tax for the person will now be Kshs 5,009 for the month – a 15% income tax cut?.  
  • Tax rate of 15% for five years for local vehicle assemblers. This can be extended by another 5 years if the company achieves 50% local content value in the vehicles.  
  • Taxes waived on the income of disabled persons, amateur sports associations, and NGO’s (relief, poverty, religion, distress) whose regional headquarters are located in Kenya.  

Finally, other stakeholders are invited to review the proposed changes to the 103-page income tax bill and submit comments via email to ITReview2017_at_treasury.go.ke by May 24.

Kenatco Receivership Assets

From a Kenyan magazine issue – The Weekly Review in September 1985.
The Receiver & Manager of Kenatco offered for sale the business and assets of the two businesses – haulage and taxis, either together or separately as going concerns. This meant the businesses were operating, and receiver/managers are usually appointed by financial institutions to take over what they see as struggling businesses that are having trouble paying their bank debts, but which could be turned around with better management. Banks do this before the businesses shut down completely. The Kenatco businesses were: 
  • Haulage Comprising: 85 haulage trucks of various makes including Mack, Fiat, Mercedes, Leyland, and Volvo and 90 trailers of various makes including Vibert, York, and Miller.
  • Taxis: comprising 79 Mercedes-Benz 200 Saloon Car Taxis – petrol and diesel-powered.
  • The two businesses shared land including two leasehold plots – at Likoni Road, Nairobi (5.9 acres) and Changamwe Industrial Area, Mombasa (7.9 acres). Also on sale were service & administration vehicles, workshop plant & equipment as well as office furniture &  equipment.

A document giving full particulars of the business and assets for sale was made available and could be obtained at a cost of Kshs 300/ – (refundable in the event of a successful purchase of the assets) from J .K. Muiruri, Joint Receiver and Manager, Kenatco Transport Company, Ltd., Alico House, P.O. Box 44286, NAIROBI Tel. 721833. 

Offers were to reach the Receivers and Managers by 30th November 1985, and conditions were that the Receivers and Managers did not bind themselves to accept the highest or any tender for the businesses, and offers for individual assets would not be entertained.

A separate notice was also issued for the sale of other assets of Kenatco – which were surplus vehicles, equipment and scrap items that were not part of the “going concern” sale. The assets were located in two towns with offers due on October 19, 1985, and the receivers & managers described them as:
Nairobi (Likoni Road)
  • Administration Vehicles:  6 Peugeot 404 pickup escort vans (1979/1981), Mazda 929 KVV 404,  (1980), 2 Toyota Carinas – KRB150/KRB151 (1977), Peugeot 104 AB38ll (1979).
  • The scrap items included 395 tyres, 117 scrap iron sheets, 56 batteries, 24 fibre glass fuel tanks, 2 safes, 2 steel fuel tanks, 13 tarpaulins and 19 empty oil drums.
  • Spare parts for Chevrolet, Datsun, Land Rover, Volkswagen, Toyota, Renault, and Mercedes vehicles. 
Mombasa:  (Changamwe)
  • 2 Peugeot 404 pickup escort vans, Toyota Carina KRA 910 (1977), Mercedes-Benz 200D KPL 251,
  • Yamaha motorcycle 100cc KTD 207 (1979), Boss forklift KND 686.
  • The scrap items included 468 tyres, 141 batteries (1979), 48 oil drums and 7 tonnes scrap metal (1973).

Other Kenatco articles:

  • Excerpt about the company: KENATCO, a cooperative with 9,000 members was very successful with profitable routes to Zambia, Angola, and Rhodesia until East African problems led to them not being allowed to carry heavy vehicle freight through Tanzania, and that government’s detention of one-third of their fleet. 
  • This article gives the background and history of Kenatco. The Kenya National Transport Co-operative Society, as it was named in 1965, was the first transport business society in Kenya…The Kenatco pioneers had a big dream. So big, that they not only wanted to go into the haulage business, but also to buy some tourism boats and a plane to serve the local tourism market.
  • See the Hansard from Kenya’s parliament on 26 November 2008 that describes how the Kenatco receivership came about. 
  • Kenatco is still under receivership. In 2016, Receiver Manager John Ndung’u said that finance costs are driving the company into losses, even though it has been making an operating profit since 2002.
  • Kenatco still exists as a Kenatco Taxis Ltd. a fully fledged government parastatal wholly owned by ICDC. It is Kenya’s leading, most reliable value-for-money taxi company, with a clean and modern fleet, efficient back-office infrastructure, on-the-road back up services, for that comfortable and safe drive, pick up and drop off at whichever location within Kenya.

Socio-Economic Atlas of Kenya

The Socio-Economic Atlas of Kenya provides a visual look Kenyan statistics, depicting the national population census by county and sub-location and showing the future of Kenya for Vision 2030 and planning purposes. The Atlas booklet that was for sale as a hardback (but also available as a PDF), was produced by the Kenya National Bureau of Statistics and first published in 2014. 

Excerpts

Young population of voters: There are both advantages and disadvantages to Kenya’s youthful population. It represents potential for the future, but it also increases dependency rates and reduces economic participation in the present. Employment creation will be the key to tapping the potential of the expected future labour force and future market opportunities. This implies that job creation is not only a national priority as stipulated in Kenya’s Vision 2030, but that it also requires efforts at the sub-national level; because grossly uneven population distribution will provoke major and increasing migration flows when today’s children and youths reach adulthood. This points to the major role that devolved governance will play in harnessing these potentials and facing the challenges posed by high proportions of young people in the population.

Female economic power: The 2009 census indicates that females head 32% of households in Kenya. This means that females head 2.8 million households, or one in every three. In a basically patriarchal society that assigns household leadership to one person and one gender, this is a high value. It implies that men are absent in one-third of all Kenyan households; in these households, women make the majority of the decisions concerning household matters and livelihoods.

Inequality at the Coast: Kenya’s overall Gini coefficient is 0.45. This value is comparatively high, higher than in neighbouring countries, and means that inequalities are quite pronounced at the national level. This reflects the economic diversity in the country, in particular the gradients between urban economic hubs and rural areas and between high-potential agricultural areas and very poor semi-arid and arid regions. The value is also typical of a nation on the verge of becoming a transition country, exhibiting rapid growth in economic centres and expanding secondary and tertiary sectors.

 

Purchasing Power is in towns: In 2006 prices, Kenya’s mean per person monthly expenditure for goods and services is KSh 3,430. If a cumulative inflation rate of 93% is applied in line with 2013 prices, this national mean rises to KSh 6,620. By this estimate, an average Kenyan family of five with two parents and three school-age children spends about KSh 26,000 per month on goods and services in 2013 prices. This average monthly estimate includes all monetary expenditures as well as consumption of self-produced farm, garden, and livestock products according to their market value. But the clearest pattern to emerge is that of the rural–urban divide. 

The map illustrates how virtually all of Kenya’s major towns exhibit higher mean per person monthly expenditures than their rural environs. The divide is further underscored by the fact that the two highest classes of mean per person monthly expenditure – i.e. KSh 6,000 to 10,000, and more than KSh 10,000 (in 2006 prices) – are found almost exclusively in urban settings. By contrast, the expenditure classes between KSh 1,000 and 3,500 are mostly found in rural sub-locations. This emphasizes the role of towns as national and regional economic hubs featuring growing secondary and tertiary sectors and the bulk of formal employment opportunities leading to continued rural–urban migration. At the same time, it is interesting to note that the phenomenon of slums in the major cities is not visible in the rural–urban graph: The very lowest expenditure class (below KSh 1,000) is almost exclusively found in rural settings. Multidimensional poverty measures could help to better capture poverty in urban areas.

Nakumatt Voluntary Administration

Troubled supermarket chain Nakumatt applied for voluntary administration to enable the chain to continue operations while freezing a mounting series of claims from banks, mall landlords, suppliers and other creditors as they seek options on how best to survive.

Nakumatt in administration

The move effectively ends the management of Atul Shah and surrenders  decision-making at Nakumatt to Peter Kahi of PKF Consulting. One of the first orders of business of the company in administration will be for Kahi to draw and publish a statement of Nakumatt’s assets and debts while separating bank ones, preferential creditors, unsecured creditors, and connected creditors. Up to now, the true and total debt has been a matter of speculation that could be up to Kshs 30-40 billion.

The Nakumatt statement reads that “the senior lenders are aware of Nakumatt’s financial position and are supportive of Nakumatt’s application for an administration order.  Further, Tusker Mattresses Limited has, subject to the Competition Authority of Kenya’s approval, undertaken to forge ahead with its investment in Nakumatt in connection with its proposed merger with Nakumatt.”

Past funding proposals prior to the Tuskys deal under consideration have not materialized. The insolvency law, which Nakumatt cites in its application for administration is among a series of new corporate laws passed in 2015 and is now focused on bringing troubled companies back to life. Aspects of the laws have been used at distressed companies including Uchumi and Kenya Airways.  Going into administration lowers the voting powers of banks, who are secured, and it gives Nakumatt power to deal with the unsecured debts.  The banks themselves were legally prevented from appointing an administrator as there have already been cases filed by some creditors asking for the liquidation of Nakumatt.