Introduction 

The Trustees (Perpetual Succession) Act is a vital piece of legislation that provides for the incorporation of trusts, ensuring the perpetual succession of property. The recent amendments to this Act, as part of the Statute Law (Miscellaneous Amendments) Act 2024, signed by President William Ruto and gazetted on April 26, 2024, introduce significant changes aimed at enhancing the functionality and governance of trustee operations. This article delves into the specific amendments and their implications. 

Analysis of the amendments to the Act

Prior to the recent amendments, establishing a Trust involved executing a Trust Deed, which then required stamping and subsequent registration at the Lands Registry in accordance with the Registration of Documents Act. This process ensured that the Trust was legally recognized and enforceable.  

However, with the introduction of the amendments, the procedure for registering a Trust has undergone a significant change. The responsibility for the registration of Trusts has now been transferred to the Registrar of Companies. This shift aims to streamline and simplify the procedures involved. With the functions of the registrar of companies now available via e-citizen, this is a step in the right direction by promoting and embracing technology in this critical process.  

Process of registration

The amendment stipulates that the trust registration application form, as specified as in the first schedule, must be submitted along with requisite documents capturing the details of the proposed trust, proposed settlor, trustees and/or enforcers and details of the subject matter property. 

The amendment also removes the requirement by a trust to submit a common seal together with its regulations for its custody and use for registration purposes. 

Conclusion 

What we can draw from the latest amendment is that the registration of a trust is now under the Registrar of companies as opposed to the previous position where the registration was undertaken at the Lands Registry in accordance with the Registration of Documents Act. 

At Netsheria International, we pride ourselves for having a wide variety of skillsets, resources and expertise to meet your needs in matters related to trusts and subsequent incorporation. Kindly visit our website where you can access our services at the click of a button. You can also reach out to us via email on or call us on +254 741 296 087 for any questions or guidance regarding this topic or any other legal queries you may have. 

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Introduction

This is the legal process of anticipating and arranging for the disposal of the property of a deceased person (“Estate”). It entails the process of formally designating who will receive one’s assets and handle estate responsibilities after the person’s death or legal incapacitation. Estate planning primarily helps to manage uncertainties in the administration of the deceased or incapacitated persons’ estate.

Purpose of estate planning

An effective estate plan is drafted to consider how a person’s estate will run in the event of his/her death or incapacity by taking various circumstances into consideration. These involve the degree to which probate or legal proceedings over his/her property can be avoided, what one wants to happen to their property upon his/her death, the financial well-being of his/her family, and how to eliminate or minimize estate taxes.

Avenues of estate planning

There are various methods of estate planning and these include:

1. Estate planning with wills– a will entails the last testamentary statement of a person seeking to distribute their property before death. It is the most common form of estate planning as it gives one freedom to distribute their estate however he/she likes.
2. Estate planning using a trust– this is where one creates a trust and transfers the ownership of all, or a position of, his/her property to it. There are different forms of trusts, the choice of which depend on the estate owner’s intentions.
3. Creation of a living trust– this is a trust that involves three parties namely the creator, trustees and beneficiaries.  One can determine when assets are passed on to a beneficiary during his/her lifetime as this does not need to be immediately upon one’s death. A living trust is revokable when the creator is alive but becomes irrevocable upon his/her death. Trusts can also have exemptions from Capital Gains Tax and Stamp Duty for assets being transferred to a registered family trust, making them convenient towards ensuring tax efficiency over the estate property.
4. Power of attorney– this refers to the power given by a signor to a signee to manage the property on their behalf while alive. It is revoked upon death of a signor.
5. Dispositions- one can pass his/her property absolutely to whomever he/she wishes while alive. In law, such scenarios tend to occur through gifts, nominations and appointments which all involve designations of beneficiaries.

Conclusion

Effective estate and succession planning gives one control of how they would want his/her assets and wealth to be distributed and held including in the case of a trust on a long-term basis.

At Netsheria International, we pride ourselves for having a wide variety of skillsets, resources and expertise to meet your needs in matters related to trusts and subsequent incorporation. Kindly visit our website where you can access our services. You can also reach out to us via email  or call us on +254 741 296 087 for any questions or guidance regarding this topic or any other legal queries you may have.

The post Basics of Estate Planning: Wills and Trusts appeared first on Netsheria.

Introduction

Estate planning entails the process of disposal of one’s assets in a structured manner that goes beyond the determination of who will benefit from the property. As such, one may need to consider whether it is appropriate in his/her circumstances to set up a trust as a form of estate planning in his/her lifetime and transfer some of his/her assets into the trust during his/her lifetime and/or after death.

Purpose of trusts

The main aim of estate planning is to reduce the uncertainties as to what fate would befall one’s estate upon death. Trusts can be extremely useful instruments in the long-term planning of the ownership and management of one’s private and business assets and estate as they provide certainty on the eventual ownership of the property during and after his/her life.

Creation of trusts

In Kenya, trusts serve as an alternative to disposing of an estate through writing a will. Setting up a trust revolves around an arrangement creating a relationship between the following key parties:

1. the person transferring his assets into the trust during his lifetime as ‘the settlor’
2. the appointed persons to hold the property for the benefit of a third party, ‘the trustee(s)’; and
3. the third parties receiving benefit of the property transferred as the ‘beneficiary’

Trusts are created through the execution of a Trust Deed as the instrument governing the relationship between the settlor and the trustee. Acting as the ‘constitution’ of the trust, almost akin to memorandum of association or articles of association of a company, it spells out the objects of the trust, properties held under the trust, power of trustees and the particulars of the administration of the trust. It serves as proof of the beneficial ownership of properties in the trust.

Once drafted and executed, the trust deed is required to be registered at the registrar of companies (owing to the Statute Law (Miscellaneous Amendments) Act, 2024 that amended the Trustees (Perpetual Succession) Act) to give the trust legal validity. The trust deed provides certainty of the beneficial ownership of the property owned as it clearly defines and easily identifies them. Certainty in the objects of the trust also makes the reason for the formation of the trust easily identifiable. Once payment of stamp duty is made, the trust can be registered and incorporated. The trust thus obtains a separate legal status, can own property in its own name, enter into contracts and carry out its activities as a separate and distinct legal entity.

Types of Trusts in Personal Estate Planning

There are several types of trust structures which an experienced lawyer can give advise on to determine which best suits one’s needs.

1. Family trusts – these are trusts in which the settlor appoints trustees manages and distributes the wealth and income out of the trust based on the changing circumstances and needs of the different family members. As a safeguard, a settlor can appoint an enforcer or protector of the trust who is a person who he trusts, who knows the family well, who can supervise the trustees and ensure the trustees carry out their duties properly. During the lifetime of the settlor, the settlor can be a protector and he can be a beneficiary as well. Family trusts can either be living trusts or testamentary trusts and may have charitable or non-charitable aspects.
2. Irrevocable trusts – these are trusts established with the express power of revocation. Where the trust provides for express power of revocation, but the settlor does not exercise the said power during their lifetime, the trust will be considered an irrevocable trust.
3. Non-Charitable trusts – these are trusts that do not have beneficiaries. They are set up for a specific legal purpose which, whether charitable or not, should be capable of fulfilment. They also have explicit provisions providing for the disposition of surplus assets of the trust upon its termination.
4. Charitable trusts – these trusts are established to be beneficial to the general public and may focus on human rights, environment, education and religious issues among other areas of public focus. They must be discretionary where although the trustee has total discretion in both the income and capital of the trust, they must act in the best interests of the beneficiaries while exercising their discretion. A charitable trust registered in Kenya can pursue its objectives in Kenya or any other jurisdiction. The trustee has the power to defer distribution for a period not exceeding the duration of the trust.

Advantages of setting up a trust

The primary objective of a trust is to create or preserve wealth for future generations. Its notable advantages include:

1. The major advantage of such a trust is that no probate and administration and therefore no court process will be required to follow upon a settlor’s death. This is because once the assets will have been transferred to the trust, the same are no longer considered as part of the settlor’s estate. This reduces the chances of family disputes over the assets, ensures there is continuity of ownership and that there are no delays in terms of use of assets. Beneficiaries can be identified as named persons or a category of persons, such as children and grandchildren
2. The settlor can use it as a wealth management and succession planning tool such that the trustees would invest and manage the assets and would make distributions of income to the beneficiaries based on the beneficiaries’ needs
3. The settlor may also be a beneficiary of a trust they have created thereby benefiting from the property in the share he/she deems fit
4. Family trusts offer protection for family members with special needs or medical conditions
5. Trusts offer tax and other efficiencies experienced as a result of having a family trust structure
6. Trusts safeguard against spendthrift beneficiaries by imposing conditions on access to the trust ensuring responsible financial management
7. Any disgruntled dependant or creditor would not be able to claim against the assets vested in the trust as they do not form part of the settlor’s estate on his/her death
8. On a divorce, the assets vested in the trust would not be subject to matrimonial proceedings and thus would not be subject to division and
9. Generational wealth is guaranteed as a family trust can hold and protect wealth forever if the trust is managed accordingly.

Conclusion

Effective estate and succession planning is important as it gives you control of how you would want your assets and wealth to be distributed and held including in the case of a trust on a long-term basis. A legal adviser can give effective solutions depending on your circumstances to achieve your wishes. Whether your circumstances are simple or complex, at the very minimum it is important to have a written will in place.

At Netsheria International, we pride ourselves for having a wide variety of skillsets, resources and expertise to meet your needs in matters related to trusts and subsequent incorporation. Kindly visit our website where you can access our services at the click of a button. You can also reach out to us via email or call us on +254 741 296 087  for any questions or guidance regarding this topic or any other legal queries you may have.

The post Setting Up a Trust in Kenya appeared first on Netsheria.

Introduction

Technological change remains one of the most important advancements affecting businesses both negatively and positively. It enables entrepreneurs to run their operations effectively and efficiently while leveraging on the challenges brought about by the same advancements that render some technologies obsolete.  

As such, most startups are actively engaged toward improving their brand, business names, technologies and inventions aimed at improving the efficiencies of running their business.  Different types of intellectual property mechanisms can be applied to safeguard these different aspects. 

1. Trademarks

Basically, a trademark is a word or a combination of words, letters, signs, designs, expressions, numbers, symbols or logos.  

They protect such word, phrase, symbol or design that identifies with the source of a product. It can be use by startups to ensure the business name, its design and word combinations in the preferred name is protected from use by other businesses. Ideally, it safeguards against confusing the consumers of a particular brand from other products seeking to use the same brand to advance themselves while also ensuring the owner fully benefits from their ingenuity. 

Registering a trademark confers exclusive ownership and safeguards the owner from infringement through use of the mark by third parties. The Kenya Industrial Property Institute (KIPI) is mandated with the registration of trademarks in Kenya. 

2. Copyright

This is an exclusive right to distribute, reproduce or perform in public an original, artistic or literary works. 

It is aimed at protecting the creative or intellectual work of the owner. Copyrights are applied for photographs, music, forms of art hence ensuring the authors or owners rights over their use is protected. To use such works, one has to seek permission of the owner and is usually expected to proffer royalty payments in return. 

The statutory noy in charge of enforcing copyright in Kenya is the Kenya Copyright Board – KECOBO. It organizes the collection of royalties for copyright holders and fines persons and businesses that infringe on copyright. A copyright owner can transfer ownership of their copyright to another via assignment which is only valid when registered with KECOBO. 

3. Patents

A patent features the exclusive right to use or sell an invention. It can be a new product or process that offers a new way of doing something or a solution to a problem.  

It prevents anyone from making, using or selling the patented invention hence ensuring that the patent owner benefits directly from the use of their invention by third parties. 

Patent rights belong to the inventor(s) and can be registered under one or more individuals jointly where two or more individuals have jointly contributed to an invention. They are registered by the Kenya Industrial Property Institute (KIPI) either personally or with the assistance of a licensed patent agent who advises and assists inventors with patent applications. 

4. Industrial Design

This is the right to the exclusive use of the outward appearance of a product. 

It enables a producer to have special designs of their product to distinguish them form products of competitors. 

Primarily, an industrial design is only registerable if it is novel, has not been disclosed to the public prior to its application for registration and the design does not offend public order or morality. Registration is done at the Kenya Industrial Property Institute (KIPI) personally by the applicant or represented by an agent. If applicant is not the creator, the application should be accompanied with a statement justifying their right to registration of the design. 

Conclusion 

While intellectual property is divided into industrial property, copyrights and plant breeder’s rights, its protection generally prevents or blocks competitors from duplications, helps one acquire transfer rights such as licensing and ensures protection of standards. Read more on Intellectual property.

For assistance on your intellectual property registrations, disputes and general advisory reach out to Netsheria International LLP or call us on 0741296087 and we will guide you in making informed decisions, maximizing returns on your works and effecting timely registrations to ensure compliance with your IP obligations. 

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Concept of taxation

While taxes are the other sure thing in life alongside death, they play a vital role in society. Taxes should not be regarded as a matter of life and death, but rather as a necessary obligation of a citizen to support the government in its quest to provide essential public services and infrastructure. Easing the tax burden is therefore crucial for a government as it encourages investment, fosters entrepreneurship and stimulates economic growth.  

To individual taxpayers, lowering taxes empowers them to retain more income which increases consumer demand and fuels economic activity while incentivizing expansion, job creation and innovation while boosting productivity and competitiveness for businesses. Therefore, a government must adopt sound fiscal policies to sustain itself and the interests of tax payers and enable it to collect sufficient revenue for public services while supporting citizens’ prosperity and the economy’s overall health. 

Tax Amnesty

A tax amnesty is a limited-time offer by the government to a specified group of taxpayers to pay a defined amount, in exchange for forgiveness of a tax liability relating to a previous tax period, as well as freedom from legal prosecution for the liability. It is a periodic tax exercise targeted to a class of persons or activities with an aim of addressing a specific problem or achieving a specific objective like bringing previously untaxed income into the tax bracket. The percentage of waiver of penalty and interest under tax amnesty is guaranteed and is based on prescribed conditions that come with each tax amnesty opportunity.  

In our article “Tax Amnesty in Kenya; Intricacies of the Programme”, we explore the current tax amnesty program that commenced on the 1st of September 2023 to end on 30th June 2024 and discuss the nuances of the program such as eligibility, taxes covered, where and how to apply. 

Tax Waiver

Sometimes, due to circumstances beyond their control, taxpayers fail to file their taxes on time and even totally fail to file their tax returns. In such cases, taxpayers can request for a waiver of accruing penalties and interest on the unfiled tax returns due by making an application to the Commissioner of Domestic Taxes, Kenya Revenue Authority (KRA) for a waiver which will apply solely to penalties and interest as the principal tax amount must be paid in full. Notably, penalties and interest resulting from fraud or tax evasion are not eligible for consideration in the waiver process. 

The Commissioner has the authority to grant full or partial waivers of penalty and interest based on the justification and evidence presented in the applications for waiver. As the grant of a waiver depends on the strength of the mitigating circumstances presented in the application, the supporting evidence provided should align with the specific mitigating grounds outlined in the application. The applicant’s historical compliance record also plays a role in the evaluation of the waiver application as the taxpayer must demonstrate compliance in previous timely filings and payment of taxes.  

Where a waiver application is declined or partially granted, the taxpayer is required to make payment of the amount computed. The notification issued by KRA after consideration of the waiver application will specify the amount due and the period within which to make payment.  

Where taxes are erroneously imposed, applications for removal of erroneous penalties and interest are required to be presented by the taxpayer to their respective Tax Service Office (TSO).  

Tax Reliefs

Tax reliefs refer to government initiatives aimed at reducing the tax burden on individuals. They encompass deductions, credits, exclusions, and tax-free allowance thresholds granted in a bid to alleviate the tax liability for businesses and individuals or to assist specific groups in need. In Kenya, residents are entitled to a personal tax relief of KES 2,400/= per month which is applicable against their taxable income. Additionally, tax relief is also provided in the form of insurance reliefs on premiums paid for education policies, health policies, or life insurance for resident individuals. These personal and insurance reliefs are granted on a monthly basis and are part of the tax relief system in Kenya, effectively reducing the overall tax obligation of an individual. 

Tax Exemptions

Tax exemptions allow individuals or organizations to exclude certain types of income or transactions from taxation. These exemptions are usually granted for purposes such as supporting specific industries, providing tax relief to individuals or groups and also encouraging certain practices by tax payers such as contributions for Corporate Social Responsibility (CSR) projects. Tax exemptions in Kenya are granted for pension contributions, persons living with disability, government entities, VAT on some goods and services, special economic zones, export processing zones and not for profit organizations. Some of the organizations that are tax exempt in Kenya include charities, NGOs, trusts, religious institutions, hospitals and educational institutions. 

Conclusion

Taxpayers must be aware of government-established relief options to effectively manage their taxes and reduce financial burdens. Regularly updating knowledge of tax laws and regulations is crucial to maximize the benefits and relief provided by the government. 

To stay informed about avenues such as tax credits, deductions, exemptions and instalment payment plans, reach out to Netsheria International LLP or call us on 0741296087 and we will guide you in making informed decisions to minimize your tax liabilities.  

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Introduction

At the heart of every workplace lies the intricate bond between an employer and an employee. This relationship forms the cornerstone of organizational dynamics, shaping the culture, productivity, and overall success of any given organization. Central to this dynamic relationship is the question of what determines the existence and legitimacy of an employer/employee relationship. To answer the above question, it is imperative to consider the definitions of what constitutes the make-up of both an employer and an employee. 

Definitions 

According to Kenyan law, an employee refers to an individual who is employed for wages or salary and includes an apprentice or indentured learner. More elaborately, an employee is anyone who comes into the employ of another either under an express or implied contract under which the employer has a right to control the details of work performance. On the other hand, an employer is described to be individual, body or institution that enters into a contract of service to employ an individual.  Such union is formalized through either written or oral contracts. Under such contract, the employee undertakes for a limited time or indeterminate period of time to do work for remuneration according to the instructions and under the direction or control of another person, the employer. 

Contract of Service vis-à-vis Contract for Service

Use of the term contract of service is an essential ingredient in the definition of an employer. Borrowing from the provisions of the Employment Act of 2007, a contract of service, refers to agreement, whether oral or written and whether expressed or implied, to employ or to serve as an employee for a period of time and includes a contract of apprenticeship and indentured learner. 

On the other hand, a contract for service can be said to be a contract by which a person, contractor or service provider makes a commitment to another person, the client, to carry out material or intellectual work or to provide a service for a price or fee. Its characteristic being that the contractor is free to choose the means of performing the contract and no relationship of subordination exists between the contractor or the provider of service and the client in respect of such performance. 

Employer-Employee Relationship

For the positive determination of the existence of an employer-employee relationship, the following elements should be present: 

1. Selection and engagement of the employee i.e hire after either a restricted or open interview process. 
2. Proof of payment of wages. 
3. Power of dismissal. 
4. Power to control employees conduct at the workplace. 
5. In a number of cited authorities, several tests have been applied to further establish how an employment relationship can be determined between the relevant parties.  

These include: 

1. Control test – this test as provided by common law dictates that an employer has the right to tell an employee what to do in terms of their job description, when to do their job, how and where the same should be done.  
2. Integration test – in assessing whether or not persons are employees, this test takes into account the extent to which an individual (employee) is integrated into the business of the employer. Under any form of employment, an individual is an employee if they are considered to be part of the business and any work that is undertaken by the said employee would be integral to the business. 
3. Test of economic/business reality – this test considers whether an employee is economically dependent on the business to which they render services or is as a matter of economic reality in business for themselves. 
4. Mutuality of obligations – this test prescribes that parties make commitments to maintain the employment relationship over a period of time. Further the following the employment relationship would entail; service in return for wages, and secondly, mutual promises for future performance. This form of arrangement creates a sense of stability between the parties.  

From the above analysis, the determination of the existence of an employer-employee relationship is primarily guided by the degree of control exercised over an employee, whether one was integrated into the enterprise, any obligation to only work for the employer and mutuality of obligations.  

It is important to note that the tests are not to be seen exclusively by themselves as they only serve to act as a guide on a case-by-case basis. 

For more information and queries regarding employment and labour relations, please visit Netsheria International LLP or reach out to us through email to get assistance from our specialized advocates. 

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Introduction

• The 2023/2024 budget tabled on 15th June 2023 provides for a tax amnesty programme which commenced on 1st September, 2023 and shall run up to 30th June 2024.  
• It provides for granting 100% waiver of all penalties and interests on principal taxes accrued up to December 31, 2022 where eligibility is only on penalties and interests on tax debts.

Who qualifies? 

One will be eligible to enjoy the tax amnesty in two prongs in the efforts by the taxman to ensure all are involved.  

• Firstly, if they have no principal taxes owed to KRA but there are outstanding penalties and interest for periods up to 31st December, 2022. One will therefore be entitled to automatic waiver of the penalties and interests related to that period and will not be required to make an amnesty application.  
• Secondly, where one has not paid all the principal taxes accrued up to 31st December, 2022, they will be required to apply for the amnesty and propose a payment plan for any outstanding principal taxes which should be paid not later than 30th June, 2024.

What are the principal taxes? 

• The scope of tax heads that qualify for the tax amnesty is limited to tax laws under the Tax Procedures Act, 2015. 

How to apply 

One applies for tax amnesty by either: 

1. Logging into their iTax page and going to Amnesty application tab under Debt and Enforcement and making the application; or 
2. Clicking in the link shared through their email or SMS which will redirect them to their iTax page to make the application; or 
3. Visiting the nearest Tax Service Office (TSO) or KRA help desk at Huduma Centre for assistance on the application process. 

Conclusion

Whether you’re a business owner or an individual tax payer, the tax amnesty program is your chance to reconcile your tax obligations. Take advantage of this opportunity before the window closes.  

For further assistance on your tax obligations or any queries on taxes in Kenya, please reach out to us on email  or on 0741296087  for further assistance. 

The post Tax Amnesty in Kenya: intricacies of the programme  appeared first on Netsheria.

Introduction 

Cloud computing is the delivery of different services through the internet through resources including tools and applications such as data storage, servers, databases, networking and software. It is referred to as cloud computing as the information accessed is found remotely in the cloud or a virtual space. Users store files and applications on remote servers and then access all the data via the internet hence allowing the user to work remotely.  

Types of Cloud Services

Cloud computing services provide users with a series of functions including; email, storage, backup and data retrieval, creating and testing apps, analyzing data, audio and video streaming and delivering software on demand. This may be done through public, private or hybrid clouds each of which is different from the other. 

Public clouds provide their services on servers and storage over the internet where clients access services through accounts. Private clouds are reserved for specific clientele where the firm’s data service center may host the cloud computing service. Hybrid models are a combination of both public and private services which allow users more flexibility and helps optimize user’s infrastructure and security.  

Types of Cloud Computing

Unlike a single piece of technology, cloud computing comprises of three services: software-as-a-service (SaaS), infrastructure-as-a-service (IaaS) and platform-as-a-service (Paas). 

1. Software-as-a-service (Saas) 

It involves licensing of a software application to customers where the license is provided through a pay-as-you-go model or on-demand such as Microsoft Office 365. 

2. Infrastructure-as-a-service (Iaas) 

It involves a method of delivering everything from operating systems to servers and storage through IP-based connectivity as an on-demand service. Clients avoid the need to purchase software or servers and instead procure the resources in an outsourced, od-demand service such as IBM Clod and Microsoft Azure. 

3. Platform-as-a-service (Paas)  

It shares some similarities with SaaS where the primary difference is that instead of delivering software online, it is actually a platform for creating software delivered via the internet such as Salesforce.com and Heroku. 

Cloud and Cybersecurity 

Cloud security refers to the measures undertaken to protect digital assets and data stored on cloud-based services such as two-factor authorization (2FA), use of virtual private networks, security tokens, data encryption, penetration testing, obfuscation, firewall services and avoiding public internet connections.  

Major threats to cloud security include data breaches, data loss, account hijacking, service hijacking, insecure application program interfaces (APIs), poor choice of cloud storage providers and shared technology can compromise cloud security. Denial-of-service cyberattacks prevent legitimate users from accessing a computer or network. Distributed denial of service (DD0S) attack overwhelms a service with data so that users cannot access their accounts, such as banks or email accounts.  

Cyberattacks impeding cybersecurity fall into three main categories: criminal, personal or political. Criminal motivated attacks seek financial gain. Personal attacks may occur when disgruntled persons seek retribution, steal money or data or simply wants to disrupt a company’s systems. Sociopolitical attackers also known as hacktivists seek attention for their causes.  

Cybersecurity on the other hand refers to measures taken to protect internet-connected devices, networks and data from unauthorized access and criminal use. These measures include preventing, detecting and responding to cyberattacks. Encryption and use of antivirus software may be used to prevent and detect suspicious activity online and block most software attacks.  

Types of Cyberattacks

1. Phishing 

This is where and email or text appears to be sent from a reputable source to trick the recipient into sharing sensitive information such as login credentials or to install malware on the victim’s device.  

2. Malware 

Malware such as viruses, worms, spyware and ransomware are malicious software intended to cause damage to a device or network. It can find its way onto devices when a user clicks a link or attachment that installs the malicious software. Malware blocks access to key components of the network, covertly obtain information by transmitting data from the hard drive, disrupt components and render the system inoperable. 

3. Eavesdropping attacks 

This is where a hacker intercepts, deletes or modifies data as it is transmitted over a network by a connected device. It occurs when a user connects to a network that is not secured or encrypted and sends sensitive data to somewhere else. 

4. Denial of service attacks (DoS) 

These attacks target devices, information systems and other network resources to prevent legitimate users from accessing services and resources. The server and host are flooded with traffic from a single location to the point that it becomes inoperable and crashes.  

5. Distributed Denial-of-service attacks (DDoS) 

These attacks are similar to Dos, only that the attack comes from multiple remote machines which can be deployed much faster and with more traffic making them harder to detect than DoS attacks. 

Conclusions

Due to ongoing and increasing cybersecurity threats, the tech industry and players need to constantly adjust to new technologies and developments to stay one step ahead as hackers also adapt their methods to new forms of cybersecurity and render previous measures ineffective.  

Netsheria LLP International, a provider of strategic legal expertise and analytical capabilities for tech startups and SMEs remains your dedicated partner in your business growth journey while ensuring your technological intellectual property is safeguarded from infringement.  

Join us in our next part of this series where our lawyers discuss on Cloud Computing Agreements and Contracts, their use, terms and conditions and key clauses to look out for in such agreements. 

To learn more about how Netsheria can help you secure your digital assets, visit our website or contact us today via Email.

The post Nuts & Bolts of Cloud Computing & Cyber Security in Kenya appeared first on Netsheria.

Introduction

Cloud computing is the delivery of different services through the internet through resources including tools and applications such as data storage, servers, databases, networking and software. It is referred to as cloud computing as the information accessed is found remotely in the cloud or a virtual space. Users store files and applications on remote servers and then access all the data via the internet hence allowing the user to work remotely.  

Types of Cloud Services

Cloud computing services provide users with a series of functions including; email, storage, backup and data retrieval, creating and testing apps, analyzing data, audio and video streaming and delivering software on demand. This may be done through public, private or hybrid clouds each of which is different from the other. 

Public clouds provide their services on servers and storage over the internet where clients access services through accounts. Private clouds are reserved for specific clientele where the firm’s data service center may host the cloud computing service. Hybrid models are a combination of both public and private services which allow users more flexibility and helps optimize user’s infrastructure and security.  

Types of Cloud Computing

Unlike a single piece of technology, cloud computing comprises of three services: software-as-a-service (SaaS), infrastructure-as-a-service (IaaS) and platform-as-a-service (Paas). 

1. Software-as-a-service (Saas) 

It involves licensing of a software application to customers where the license is provided through a pay-as-you-go model or on-demand such as Microsoft Office 365. 

2. Infrastructure-as-a-service (Iaas) 

It involves a method of delivering everything from operating systems to servers and storage through IP-based connectivity as an on-demand service. Clients avoid the need to purchase software or servers and instead procure the resources in an outsourced, od-demand service such as IBM Clod and Microsoft Azure. 

3. Platform-as-a-service (Paas)  

It shares some similarities with SaaS where the primary difference is that instead of delivering software online, it is actually a platform for creating software delivered via the internet such as Salesforce.com and Heroku. 

Cloud and Cybersecurity

Cloud security refers to the measures undertaken to protect digital assets and data stored on cloud-based services such as two-factor authorization (2FA), use of virtual private networks, security tokens, data encryption, penetration testing, obfuscation, firewall services and avoiding public internet connections.  

Major threats to cloud security include data breaches, data loss, account hijacking, service hijacking, insecure application program interfaces (APIs), poor choice of cloud storage providers and shared technology can compromise cloud security. Denial-of-service cyberattacks prevent legitimate users from accessing a computer or network. Distributed denial of service (DD0S) attack overwhelms a service with data so that users cannot access their accounts, such as banks or email accounts.  

Cyberattacks impeding cybersecurity fall into three main categories: criminal, personal or political. Criminal motivated attacks seek financial gain. Personal attacks may occur when disgruntled persons seek retribution, steal money or data or simply wants to disrupt a company’s systems. Sociopolitical attackers also known as hacktivists seek attention for their causes.  

Cybersecurity on the other hand refers to measures taken to protect internet-connected devices, networks and data from unauthorized access and criminal use. These measures include preventing, detecting and responding to cyberattacks. Encryption and use of antivirus software may be used to prevent and detect suspicious activity online and block most software attacks.  

Types of Cyberattacks

1. Phishing 

This is where and email or text appears to be sent from a reputable source to trick the recipient into sharing sensitive information such as login credentials or to install malware on the victim’s device.  

2. Malware 

Malware such as viruses, worms, spyware and ransomware are malicious software intended to cause damage to a device or network. It can find its way onto devices when a user clicks a link or attachment that installs the malicious software. Malware blocks access to key components of the network, covertly obtain information by transmitting data from the hard drive, disrupt components and render the system inoperable. 

3. Eavesdropping attacks 

This is where a hacker intercepts, deletes or modifies data as it is transmitted over a network by a connected device. It occurs when a user connects to a network that is not secured or encrypted and sends sensitive data to somewhere else. 

4. Denial of service attacks (DoS) 

These attacks target devices, information systems and other network resources to prevent legitimate users from accessing services and resources. The server and host are flooded with traffic from a single location to the point that it becomes inoperable and crashes.  

5. Distributed Denial-of-service attacks (DDoS) 

These attacks are similar to Dos, only that the attack comes from multiple remote machines which can be deployed much faster and with more traffic making them harder to detect than DoS attacks. 

Conclusions

Due to ongoing and increasing cybersecurity threats, the tech industry and players need to constantly adjust to new technologies and developments to stay one step ahead as hackers also adapt their methods to new forms of cybersecurity and render previous measures ineffective.   

Netsheria LLP International, a provider of strategic legal expertise and analytical capabilities for tech startups and SMEs remains your dedicated partner in your business growth journey while ensuring your technological intellectual property is safeguarded from infringement.  

Join us in our next part of this series where our lawyers discuss on Cloud Computing Agreements and Contracts, their use, terms and conditions and key clauses to look out for in such agreements. 

To learn more about how Netsheria can help you safeguard your business, visit our website or contact us today. 

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Introduction

The legal profession is normally viewed with mixed perceptions by the Kenyan populace leading to biases leveled against lawyers due to misunderstood nuances and observations. Normally, one will hear of corporate or criminal lawyers, Advocate of the High Court of Kenya, Senior Counsel and other terminologies referring to lawyers. This article will delve into the common nuances held by the public and demystify the Kenyan legal practice in a bid to at least sensitize the populace.  

Legal education and training

It is noteworthy that the terms ‘lawyer’ and ‘advocate’ tend to be used interchangeably in social circles but formally carry different meanings.  

The legal profession involves a maximum six (6) year training period. The first phase involves a four-year Bachelors of Laws degree, referred as LLB due to the traditional name of the qualification in Latin, ‘Legum Baccalaureus’. Upon successful completion of the LLB course from a recognized local or international university, one is referred to as a ‘lawyer’.  However, while a lawyer is allowed out basic legal research, write articles on legal issues,  provide initial legal advisories to third parties and draft basic legal documents, he/she is barred from representing clients in court matters and drawing up formal legal documents in his/her name. 

The next step in the legal qualification journey for a lawyer is enrollment to the Kenya School of Law for the Advocate Training Program (ATP). This training captures the practical aspects of legal practice which includes compulsory training as a pupil (pupillage) under a qualified advocate of at least five (5) years standing. Upon completion of the ATP tuition and pupillage, the lawyer will sit for the Bar examinations and, upon successful completion, will admitted to the Roll of Advocates in Kenya (the ‘Bar’) by the Chief Justice. Once admitted to the Bar, a lawyer is now referred to as an Advocate of the High Court of Kenya and may practice in any court in Kenya upon payment and issue of a practicing certificate by the Law Society of Kenya. 

Do all lawyers go to Court?

Lawyers are categorized based on whether they carry out public or private practice from the broad categorization of whether they handle criminal or civil matters. They are further divided into their area of practice and the number of years they have accumulated in practice. Among these lawyers, some go to court while others are practice exempted. 

Public practice lawyers are those employed by the national or county government, parastatals and other government bodies as legal officers as outlined below:  

1. The Judiciary – as the umbrella arm of government involved in interpretation and adjudication of the law as Judges, Magistrates, Adjudicators or Researchers involved in litigation of all legal disputes. 
2. Attorney General & Solicitor General – as the chief legal advisors to government. 
3. Office of the Director of Public Prosecutions – for the prosecution of crimes against the public. 
4. County Government Counsels – as County legal officers involved in day-to-day legal operations of county functions. 
5. Legal Officers in government parastatals, public bodies and independent authorities established under law. 

Private practice lawyers are categorized into personal private practitioners, usually in a law firm, or in-house counsels found in companies, non-governmental organizations and other corporate bodies. These consist of: 

1. Corporate or Commercial Lawyers – such lawyers are involved in Civil practice matters based on areas of specialization or expertise which tend to revolve around running of businesses. These include Intellectual Property, Capital Markets, Insurance, Cybersecurity, Data Protection, Mergers and Acquisitions, Tax Compliance, Employment and Labour relations, Oil and Gas lawyers among other specializations. 
2. Criminal defense lawyers – they are involved in defending accused persons undergoing prosecution before court. 
3. In-house Counsels – they work as compliance lawyers where they advise companies or organizations, and are employed to provide appropriate legal advisory services to facilitate the of running of the company or organization’s activities. 
4. Family, Children and Probate lawyers – involved in matters incidental to marriages, child protection and adoption as well as succession matters. 
5. Conveyancing Lawyers – involved in land adjudication and transfer procedures.  
6. Academia lawyers – involved in teaching of trainee lawyers at universities and other institutions and carrying out legal research. 

Based on the number of years of legal practice, advocates are entitled to obtain the following additional qualifications upon application as: 

1. Commissioner for Oaths- advocates with three (3) years post admission experience 
2. Notary Public- advocates with five (5) years post admission experience  
3. Senior Counsel- advocates with over fifteen (15) post admission experience with other factors such as exemplary practice, integrity, extensive contribution to the legal profession through publications etc. influencing the bestowment of this prestigious title.  

Biases about lawyers

Biases meted on lawyers tend to be arrived at from an ignorant standpoint based on innuendos and common placed beliefs. These include; 

1. Types of lawyers 

As captured above, many believe that lawyers are either involved in criminal or corporate matters. From the different types of lawyers captured above, the legal profession is wide with various areas of practice allowing for specialization into areas of expertise. Hence, this cures the generalized misconceptions on the types of lawyers in various sectors and what they generally do. 

2. Expensive 

Most people tend to believe that lawyers are generally expensive in the provision of their services. This is however not the case as legal fees charged by lawyers is controlled under the law in terms of billing for work done and services offered. For instance, court fees are regulated by the Judiciary through the office of the Chief Justice to ensure uniformity in filing cases before court as well as fines and monetary obligations before court. 

Advocate fees, are determined by the Advocates Renumeration Order which specifies the extent to which an advocate may charge to handle a clients matter subject to terms and conditions such as value of the subject matter, court attendances and other ramifications. This however excludes charges for commercial and corporate matters which are agreed between the advocate and client based on the work performed. 

3. Complicated  

The legal practice is shrouded by belief that lawyers are complicated, with a habit of speaking ‘heavy’ English full of legal jargon and Latin terminologies. During training, lawyers are taught the importance of using simple, plain and basic language for purposes of addressing court and clients. This is also a requirement in drafting pleadings and court documents used in court in a bid to ensure principles of natural justice on effective participation of all parties to a case. 

Conclusions 

Based on the above, it is clear that the legal profession is heavily biased due to misconceptions arrived at from ignorance and lack of proper knowledge. Due to this, many startups, SMEs and the general populace tend to overlook the requirement for lawyers until its too late. Lawyers are not only needed for settlement of disputes but for advisory purposes as well in order to avoid disputes in the first place.  

The Judiciary forms the umbrella of legal practice whose key mandate is the interpretation and application of set laws in a just manner with a view to protecting the rights and liberties of all, thereby facilitating the attainment of the ideal rule of law. 

Netsheria’s lawyers are fully trained and specialized in areas key in the establishment, growth and expansion of your business operations ensuring you focus on running your business while we handle the legal business as usual stuff.  

To learn more about how Netsheria can help you scale up your business, visit our website or contact us today. 

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