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23/09/2026

Procurement Integrity: Due Diligence Does Not End With the Award

A recent High Court ruling offers an important reminder for businesses participating in public procurement.

In Kinyua & another v Kenya National Highways Authority & 5 others [2026] KEHC 13617 (KLR), the dispute concerned a tender for the upgrading of the Masara–Muhuru Bay (B1) Road.

The successful bidder had been awarded a tender worth approximately KShs. 3 billion. Following the award, concerns were raised about documents submitted to demonstrate the bidder’s construction experience.

The documents were subsequently disputed by the entity to which they were attributed. KeNHA terminated the procurement process and re-advertised the tender.

The applicants challenged the termination and sought judicial review.

The High Court ultimately declined to grant leave for the judicial review proceedings, finding that the applicants had not established a proper and arguable case warranting the exercise of the Court's supervisory jurisdiction.

For businesses, however, the broader compliance lesson is significant:

• Procurement due diligence should verify the authenticity of critical qualifications, experience and supporting documentation.

• Compliance checks should not be treated as a box-ticking exercise.

• Businesses should maintain proper records supporting every material representation made during a tender process.

• Procurement teams should have clear escalation procedures where the authenticity of submitted documents is questioned.

• Public procurement creates regulatory exposure beyond the commercial value of the contract itself.

For companies seeking to participate in government tenders, procurement compliance should therefore be embedded into the business process from the preparation of the bid through evaluation, award and contract implementation.

Compliance is not simply about winning the tender. It is also about being able to substantiate how the tender was won.

22/09/2026

When a Data Protection Complaint Reaches Your Organisation

A data protection complaint is not something an organisation can safely ignore.

In Regus Kenya Limited v Data Protection Commissioner & another [2025] KEHC 13491 (KLR), a complaint was made over unsolicited automated marketing communications.

The ODPC issued complaint notifications and later an Enforcement Notice after the company failed to respond. A KShs. 5 million administrative penalty followed.

On appeal, the High Court upheld the Commissioner’s jurisdiction and the enforcement process. However, it reduced the penalty to KShs. 2.5 million, finding the maximum penalty harsh and excessive in the circumstances of a first offender.

The practical lesson for organisations is straightforward:

• Monitor official communication channels used for regulatory correspondence.

• Respond to ODPC complaints within the prescribed timelines.

• Treat an Enforcement Notice as a compliance matter requiring immediate action.

• Keep evidence showing how complaints were investigated and addressed.

• Have an internal escalation process for privacy complaints, rather than leaving them solely with IT, HR or customer service.

Data protection compliance is therefore not only about having a privacy policy on the website. It is also about how an organisation responds when a regulator or data subject raises an actual concern.

For businesses processing personal data at scale, a documented complaints-response and regulatory-escalation process should be part of the wider governance framework.

21/09/2026

Employee Images and Consent Under Kenya’s Data Protection Law

Employers routinely collect photographs and other personal information from employees for identification, internal communications, websites, social media and marketing. But consent to use an employee’s image is not necessarily unlimited.

The Data Protection Act, 2019 requires personal data to be processed lawfully, fairly and transparently, with appropriate safeguards and for specified purposes.

Recent judicial guidance:

In St Joseph Health Care v M [2026] KEHC 4643 (KLR), the High Court considered an appeal from an ODPC determination concerning the use of a former employee’s image in the employer’s magazine, calendars and signage.

The case is significant for employers because the Court examined whether consent given by an employee was sufficiently specific to justify subsequent use of their image for different purposes. It reinforces the importance of purpose-specific and properly documented consent when organizations use employee images beyond ordinary employment administration.

The issue is particularly relevant where photographs initially collected for identification or internal purposes are subsequently used for advertising, promotional campaigns or commercial communications.

Key compliance considerations for employers:

• Clearly identify the purpose for collecting and using employee photographs.
• Do not assume that employment-related consent automatically covers marketing use.
• Document consent and ensure employees understand how their images will be used.
• Review existing photographs and marketing materials involving current and former employees.
• Establish procedures for responding to withdrawal, erasure and other data-subject requests.

The lesson is simple: collecting an employee's image and using that image for a new purpose are two different compliance questions.

At Madowo A Advocates, we advise employers and businesses on employment data, privacy governance, consent management, data protection compliance, and regulatory risk.

27/08/2026

Insurance Disputes: Know the Regulator’s Limits

Insurance disputes do not always belong before the regulator. For insurers, brokers and policyholders, understanding the distinction between regulatory supervision and private contractual disputes can be critical when deciding where and how to pursue a claim.

The Insurance Act, Cap. 487 gives the Insurance Regulatory Authority (IRA) extensive supervisory and regulatory powers, including mechanisms for handling certain complaints by policyholders.

Judicial guidance:

In Jubilee General Insurance Limited v Levities International Reinsurance Brokers Limited [2026] KEHC 802 (KLR), the High Court held that the Insurance Act does not give the IRA jurisdiction to determine contested private commercial claims involving contractual or fiduciary disputes where determination would require the assessment of liability and damages.

The Court emphasized that statutory regulatory powers must remain within the limits granted by legislation.

This is an important compliance reminder: regulatory oversight does not automatically convert every commercial dispute into a regulatory dispute.

Key considerations for insurers and businesses:

• Identify whether a dispute is regulatory, contractual, or both.
• Review the Insurance Act before invoking a statutory complaint or dispute-resolution mechanism.
• Ensure contracts clearly define rights, obligations and dispute-resolution procedures.
• Do not assume that a regulator has jurisdiction over every disagreement arising from an insurance relationship.
• Obtain legal advice early where jurisdiction or exhaustion of remedies may become an issue.

For businesses, choosing the correct forum can be just as important as establishing the underlying claim.

At Madowo A Advocates, we advise insurers, brokers, policyholders and businesses on insurance law, commercial disputes, regulatory compliance and risk management in Kenya.

19/08/2026

The Cost of Credit and the In Duplum Rule in Kenya

The cost of credit remains an important compliance issue for lenders and borrowers alike. Recent Kenyan jurisprudence continues to raise important questions about the accumulation of interest and penalties, particularly beyond traditional banking institutions.

The Banking Act, particularly Section 44A, provides the statutory framework for the in duplum rule for institutions within its scope. The broader principle has also been considered in cases involving non-bank lending.

Judicial guidance:

In Anne J. Mugure & 2 Others v Higher Education Loans Board [2022] KEHC 11951 (KLR), the High Court held that interest and penalties exceeding the principal amount violated the in duplum principle and stated that the rule applies to persons engaged in lending money.

The Court's reasoning is particularly significant for lenders outside the traditional banking sector, although the precise scope of the decision continues to be tested in subsequent litigation.

More recently, Kenyan courts have continued to scrutinize the legal framework governing non-bank lending and the enforceability of excessive credit charges. This makes transparent pricing, clear contractual terms, and appropriate regulatory licensing increasingly important for lenders.

Key compliance considerations for lenders:

• Clearly disclose interest rates, fees, penalties and other credit costs.
• Ensure lending activities are conducted under the appropriate regulatory licence.
• Review pricing models and default charges for proportionality and legal compliance.
• Maintain clear loan agreements and adequate records of customer disclosures.
• Regularly review lending practices against evolving judicial and regulatory requirements.

For borrowers, the lesson is equally important: a contractual interest rate is not necessarily immune from legal scrutiny simply because it was agreed upon.

For lenders, sustainable credit pricing requires more than commercial viability—it requires regulatory compliance, transparency and fairness.

At Madowo A Advocates, we advise lenders, businesses and borrowers on credit agreements, regulatory compliance, financial services law, debt recovery and lending risk.

12/08/2026

Foreign Companies, Cross-Border Lending & Doing Business in Kenya

Kenya continues to attract international lenders and investors. A recent Court of Appeal decision provides important clarification on when a foreign company is required to register in Kenya and whether failure to register prevents it from enforcing contractual rights before Kenyan courts.

Under Sections 974–978 of the Companies Act, 2015, foreign companies carrying on business in Kenya are required to register and comply with prescribed requirements.

Recent judicial guidance:

In Stichting Rabobank Foundation v Ava Chem Limited & Another, Civil Appeal No. E090 of 2025 (judgment delivered 31 July 2026), the Court of Appeal overturned a High Court decision that had struck out a foreign lender's claim because it was not registered in Kenya.

The Court held that registration under Section 974 is a regulatory obligation and does not, by itself, deprive an unregistered foreign company of legal capacity or access to Kenyan courts. It also clarified that a cross-border loan does not automatically amount to “carrying on business in Kenya”; that determination is fact-specific.

What does this mean for businesses and foreign investors?

• A foreign lender should assess whether its activities amount to carrying on business in Kenya.
• Registration requirements should be assessed based on the nature, frequency and continuity of activities.
• Cross-border financing structures should clearly document the parties' roles and jurisdictions.
• Foreign investors should undertake Kenyan corporate and regulatory due diligence before establishing a sustained commercial presence.
• Kenyan counterparties should understand the legal and enforcement implications of cross-border financing arrangements.

The decision provides greater certainty for international lenders, investors and Kenyan businesses accessing foreign capital, while confirming that registration obligations remain relevant where a foreign company genuinely carries on business in Kenya.

At Madowo A Advocates, we advise investors, lenders and businesses on cross-border transactions, corporate structuring, regulatory compliance, financing, and commercial risk in Kenya.

11/08/2026

Counterfeit Goods and Brand Protection in Kenya

Counterfeiting presents significant legal and commercial risks for businesses, particularly manufacturers, distributors, retailers, and owners of valuable brands.

The Anti-Counterfeit Act, 2008 gives the Anti-Counterfeit Authority (ACA) powers to investigate, seize, and detain suspected counterfeit goods, but those powers must be exercised within the limits prescribed by law.

Judicial guidance:

In Anti-Counterfeit Authority v Wanyange & 4 Others [2025] KECA 1540 (KLR), the Court of Appeal upheld the High Court's finding that ACA could not seize and indefinitely detain goods without establishing reasonable grounds to suspect that the goods were counterfeit.

The Court emphasized that ACA's statutory mandate is specifically directed at counterfeiting and that enforcement action must have a lawful basis under the Anti-Counterfeit Act. It further held that continued detention beyond the statutory period, without charges under the Act, was unlawful.

The decision is an important reminder that regulatory enforcement powers are not unlimited, and businesses also have rights when subjected to enforcement action.

Key compliance considerations for businesses:

• Register and actively protect your trademarks and intellectual property rights.
• Maintain documentation demonstrating the authenticity and lawful sourcing of goods.
• Conduct due diligence on distributors and suppliers.
• Establish procedures for responding to ACA inspections, seizures, and investigations.
• Seek legal advice promptly where goods are seized or enforcement action is commenced.

For brand owners, proactive IP protection can be significantly less costly than responding to counterfeiting after it has already affected the market.

At Madowo A Advocates, we advise businesses on intellectual property protection, anti-counterfeiting enforcement, regulatory investigations, and commercial risk management in Kenya.

10/08/2026

Data Protection: Compliance Must Be Demonstrable

For organizations processing personal data, having a privacy policy on the website is not the same as being compliant.

The Data Protection Act, 2019 requires data controllers and processors to demonstrate compliance with data protection principles, including lawfulness, fairness, transparency, purpose limitation, data minimization, and security.

Recent judicial guidance:

In Ceres Tech Limited v Office of the Data Protection Commissioner [2026] KEHC 2838 (KLR), the High Court considered an appeal arising from an ODPC determination concerning alleged unlawful processing of personal data in connection with a loan. The decision demonstrates the increasing role of the courts in scrutinizing ODPC enforcement and the conduct of organizations handling personal information.

The regulatory message for businesses is clear: organizations should be able to demonstrate what personal data they process, why they process it, the legal basis relied upon, who has access to it, and what safeguards are in place.

Key compliance considerations:

• Maintain an up-to-date data inventory and processing records.
• Document the lawful basis for processing personal data.
• Ensure privacy notices accurately reflect actual processing activities.
• Control access to personal data and maintain appropriate security measures.
• Keep evidence of consent, contracts, DPIAs, policies, training, and other compliance measures where applicable.
• Establish procedures for responding to data subject requests and regulatory complaints.

A compliance framework that exists only on paper may provide little protection when a complaint or regulatory investigation arises.

For businesses, the question is increasingly not simply “Are we compliant?” but “Can we demonstrate that we are compliant?”

At Madowo A Advocates, we advise organizations on Data Protection Act compliance, privacy governance, ODPC complaints and enforcement, DPIAs, data processing agreements, and regulatory risk management.

05/08/2026

Alternative Dispute Resolution (ADR) Clauses in Commercial Contracts

Commercial disputes are inevitable, but costly litigation does not have to be. Increasingly, Kenyan businesses are incorporating mediation, arbitration, and other Alternative Dispute Resolution (ADR) mechanisms into their contracts to facilitate efficient and confidential resolution of disputes while preserving commercial relationships.

Article 159(2)(c) of the Constitution of Kenya, 2010 recognizes and promotes alternative forms of dispute resolution, while the Arbitration Act, 1995 provides the legal framework for the recognition and enforcement of arbitration agreements and arbitral awards.

Judicial guidance:

In Nyutu Agrovet Limited v Airtel Networks Kenya Limited & Another [2019] eKLR, the Supreme Court reaffirmed Kenya's pro-arbitration policy, holding that court intervention in arbitral proceedings should be limited and exercised only in exceptional circumstances provided by law. The decision reinforces the principle of finality in arbitration while preserving the courts' supervisory jurisdiction in appropriate cases.

Similarly, in Geo Chem Middle East v Kenya Bureau of Standards [2020] eKLR, the Court of Appeal emphasized that where parties have voluntarily agreed to resolve disputes through arbitration, courts should respect and uphold that agreement, save where statutory grounds justify intervention.

These decisions underscore the importance of carefully drafted ADR clauses and the judiciary's commitment to respecting party autonomy in commercial transactions.

Key compliance considerations for businesses:

• Include clear and enforceable ADR clauses in commercial contracts.
• Specify the governing law, seat of arbitration, applicable rules, and appointment procedure for arbitrators or mediators.
• Consider multi-tier dispute resolution clauses requiring negotiation or mediation before arbitration.
• Review existing contracts to ensure dispute resolution provisions remain fit for purpose.
• Seek legal advice before commencing litigation where an ADR clause exists.

Poorly drafted dispute resolution clauses may result in jurisdictional disputes, unnecessary litigation, increased costs, and delays in resolving commercial disputes.

As commercial transactions become increasingly sophisticated, well-structured ADR mechanisms remain an essential component of effective contract management and regulatory risk mitigation.

At Madowo A Advocates, we advise businesses, investors, and institutions on commercial contracts, arbitration, mediation, dispute resolution, and regulatory compliance in Kenya.

03/08/2026

Environmental Impact Assessments and Meaningful Public Participation in Kenya

As Kenya accelerates infrastructure, energy, manufacturing, and real estate developments, compliance with environmental laws is no longer a procedural formality—it is a legal prerequisite. Project proponents must ensure that Environmental and Social Impact Assessments (ESIAs) are comprehensive, evidence-based, and supported by meaningful public participation before regulatory approvals are obtained.

The Environmental Management and Co-ordination Act (EMCA) and the Environmental (Impact Assessment and Audit) Regulations require projects likely to have significant environmental impacts to undergo an Environmental Impact Assessment before commencement.

Recent judicial guidance:

In Menengai West Stakeholders Forum & 10 Others v National Environment Management Authority & Another [2025] KEELC 1169 (KLR), the Environment and Land Court set aside an Environmental Impact Assessment licence after finding material deficiencies in the ESIA process, including failures relating to public participation and environmental assessment. The Court reaffirmed that environmental approvals must be founded on strict compliance with statutory requirements.

Similarly, in Amu Power Company Limited v Save Lamu & 6 Others, the courts underscored that meaningful public participation is a constitutional and statutory requirement in environmental decision-making, and that an EIA licence may be invalidated where the approval process fails to meet the standards prescribed by law.

These decisions demonstrate that environmental compliance is not merely about obtaining a licence—it is about ensuring the integrity of the entire approval process.

Key compliance considerations for project proponents:

• Conduct comprehensive Environmental and Social Impact Assessments before project implementation.
• Facilitate meaningful and inclusive public participation throughout the assessment process.
• Ensure ESIA reports are prepared by qualified experts and supported by accurate baseline data.
• Address environmental, climate, and social impacts through appropriate mitigation measures.
• Maintain complete documentation to demonstrate compliance with EMCA and related regulations.

Failure to comply may result in revocation of licences, project delays, litigation, regulatory sanctions, and significant financial losses.

At Madowo A Advocates, we advise developers, investors, public agencies, and project proponents on environmental compliance, regulatory approvals, infrastructure projects, and risk management.

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