Category Archives: Kenya judiciary

Kenya Elections 2017 Wrap – Electionske2017

Yesterday, the final results of the August 8, 2017, Kenya elections (electionske2017) were announced by the Independent Electoral and Boundaries Commission (IEBC).

This came with the announcement of the presidential results that were delayed by challenges and agreement on the tallying and transmission of the results that were a spillover of lengthy discussions and court cases (the IEBC chairman said they had 200 court cases) on independent candidates, political party petitions, procurement, electronic gadgets, ballot papers, as well as the brutal murder of the IEBC technology manager just a week before the election.

These were the fourth national elections in ten years (2007,2013, 2017 and a constitutional referendum in 2010) and they were closely contested in many places. Besides choosing a new president, 15 million Kenyans also voted on their choice for governor, senator, councillor (MCA), member of parliament (MP), and a county women’s representative from among 14,500 candidates.

But even after the results, there are expectations that dozens of petitions will be filed at the courts on Monday for determination.

Electionske2017 Predictions: 

  • Opinion polls were reported in Kenya. They have been widely derided for not accurately predicting the outcome of races and for contradicting each other. This could be due to misunderstandings by Kenyans about what polls mean, and sampling methods used, especially in rural Kenya.
  • Elsewhere, Charles Hornsby,  author of the classic must-read Kenya: A History Since Independence -did a series of election prediction posts in June and early in August that were based on his September 2016 prediction of a 55-45 victory for Kenyatta over the (yet to be chosen at that time) opposition candidate remains plausible. He later revised this; I still predict a Jubilee victory by 52% for Kenyatta and Ruto to 48% for Odinga and Musyoka, with all others less than 1% combined.
  • Another was a research report by Citibank (Citi) published in early August:  On Thursday we hosted a call with Richard Kiplagat, COO of AfricaPractice, to talk through political scenarios. Mr. Kiplagat takes the view that 1) the polls are very close but give a slight edge to the President; 2) the victor is likely to win outright in the first round, given limited support for third party candidates; 3) while the outcome may be disputed initially, the Supreme Court is likely to certify the outcome by September 10th, a judgment that could well be accepted by the loser; 4) widespread or prolonged violence is unlikely this time around, due in part to devolution of the 2010 constitution and in part to the ethnic balance of the incumbent presidential/vice presidential ticket.

What happens next?

For President: The date of the swearing-in of the president constitutionally depends on if there are any petitions

  • Petitions are filed within 7 days after the declaration of results
  • If a petition is filed, the Supreme Court hears and gives a determination within 14 days
  • The President-elect is sworn in the first Tuesday following the 14th day if no petition has been filed or the 7th day following the date on which the court renders a decision

For Governors’ transition rules

For Members of Parliament: The 12th parliament i.e the national assembly and the senate are to have their first sitting, not more than thirty days after the elections (tentatively not later than September 8, 2017).

Also, see other electionske2017 posts about:

Governor and County Transition 2017

In July the Cabinet Secretary for Devolution and Planning gazetted rules for governor transition. Governors came into office in 2013, and this month, most of them stood for re-election as incumbents, for a second (and final) year term

Sonko in transition from Nairobi Senator to Governor.

About half of the 47 county governors in Kenya will be going home after losing in the August 8 elections and will be handing over power to new county governors.

The rules called for:

  • All the counties (were to) form Assumption of Office of the Governor Committee(s) – these were largely made up of central government and county officials as well as with nominees from the incoming governor, once they have been declared the winners
  • The committees are to facilitate handing over ceremonies, security of new governor, and communication and facilitation of a smooth transition. 
  • New governors are to be sworn in by a High Court Judge ten days after the declaration of results. The outgoing governor should be present to hand over symbols of power (but their absence shall not hinder the process).
  • EDIT Where the outgoing governor is re-elected for a second term and upon signing the certificate of inauguration, the presiding Judge or the Deputy Registrar as the case may be shall hand over to the Governor any of the county symbols.
  • The County Commissioner shall ensure the provision of adequate security during the conduct of the swearing-in ceremony.
  • The committee shall within 30 days of swearing in provide a report on the:
    • County Assets (offices, houses, schools, cars, computers, software investment, debtors etc. – their status and ownership documents)
    • County liabilities (amounts & status of loans, legal liabilities)
    • County bank accounts (reconciled balances)
    • County Staff and county agencies
    • Ongoing/multi-year projects and donor funded projects
    • Pending litigation – by the county/against the county, and issues with other government agencies.
    • Sources of county government funding for the last 4 years and projections for 2017/18.

Why Imperial Bank May Not Reopen Part III

There are two or more sides to every story, and there are several at Imperial Bank. This is just one. The Central Bank (CBK) and the Kenya Deposit Insurance Corporation  (KDIC) have accused the shareholders/non-executive directors of the bank of being negligent in allowing the fraud at the bank estimated at Kshs 34 billion (~$34 million), and collecting dividends from what was a shell institution. The shareholders have fired back in replying affidavits saying they were not party to the fraud and that, among other things:

  • Documents they saw as directors (at board meetings). had been doctored by management of the bank (led by the late group managing director).
  • CBK officials helped doctor the records for many years during their inspection audits.
  • CBK officials received personal favours from Imperial Bank managers.
  • CBK staff and Imperial managers conspired to prevent one shareholder from becoming an executive director of the bank, which would have created a second centre of power (other than the GMD) and which might have uncovered the fraud.
  • The current CBK governor has made unreasonable demands on shareholders and failed to discipline his officers involved with Imperial – even appointing one of them as a receiver manager after Imperial closed.

Meanwhile, a judge issued a ruling that was interpreted differently and a group of depositors went back to court seeking a clarification of what the judge meant. It has been interpreted to mean:

  • Shareholders: The receiver managers (CBK/KDIC) must share information with, and consult, them on decisions affecting the bank.
  • Receiver Manager: Liquidation of the Bank can proceed liquidated.
  • Depositors: Judge said to pay us 40% of our deposits immediately.

Hearings continue next week.

Co-Founder Agreements for StartUps

Last week there was a talk at the iHub about founder stock agreements i.e. the agreements that people enter with each other as they set up companies. John Freeman, an attorney who has advised on tech startups in the US & Asia, as a venture capitalist and now as an angel investor, said that most founders allocate their shares 50/50 when starting our  or in other equitable ratios.  Barclays Kenya agreement was a Parliament Act

But he said that this was a wrong allocation and that company founders should instead take some time to run a “founders pie calculation” (designed by Frank Demmler) to assess the founders commitment and responsibilities at the companies to determine exactly how much each founder is entitled to get.

He also said’ it’s important not to have too many cofounders (never more than 5) as when they get new investment, their stakes may be diluted to become negligible. As more key people are, added, they should remain employees, but who can earn bonuses and options that vest over several years.

Founders also need to come up with term sheets, employment agreements (e.g. which note that the company owns all intellectual property developed) and shareholders agreements that have clauses such as right of first refusal. (He said if a company does not have this clause,  it is not worth investing). The clause determines who can invest in the company even if a cofounder leaves, dies or gets divorced etc. Founders who leave companies should also sign termination notices.

He said that there is an increasing trend or more convertible debt in lieu of equity investments. The documentation for theses is much faster (he does this in two weeks) and cheaper compared to equity investment, but that many  Kenyan lawyers do not understand the convertible debt  agreements. He mentioned that investor templates could be found at sites such as founders workbench,  startup percolator, cooleygo, ycombinator and orrick.

The iHub event was in partnership with m:lab East Africa and uWakili.

When Banks Pay Court Bail

CBA has been in the news as it was reported to have facilitated bail in an ongoing criminal case.  It’s not common to see a bank linked to a case.

CBA bail

CBA”s statement

The bank issued a statement to clarify that it was not a party to the case. It only issued a guarantee of Kshs 140 million to its customer which is a law firm, and it  is presumed that the law firm used that to arrange to release the accused person in the case.

Most of the time a court demands bail or bond in Kenya, it is usually presented as cash or vehicle logbooks or land title-deeds. It’s rare to have a bank guarantee. But the amount called for in this case is quite large, and it is doubtful that any of these regular items offered as bail would be arranged at short notice. The Kshs 140 million guarantee is equal to about $1.39 million or  £1.05 million.

UK news

News coverage of the case

Bank’s do offer several forms of guarantees mainly as trade finance or insurance products. The guarantee in this case ensures that the defendant will show up in court during the case. If not, then the bank will have to pay the court the amount on behalf of the law firm.

The case is being covered extensively in Kenya and UK media because of the defendant, a commodities trader whose firm was found to be moving a consignment that apparently contained illegal drugs.

$1 = Kshs 101 and .39 million or  £1 = Kshs 133