IPO(Initial Public Offering) Explained

Definition and the process through which it is acquired

What is an IPO?

An IPO is an initial that stands for the Initial Public Offering. An IPO refers to the process by which a company (as registered under the companies Act) decides to switch from private to public and in the process it is therefore required to sell off the stocks belonging to the company.

An IPO consumes quite some time for it to be accomplished. It requires good planning and some quality of consideration of certain aspects for it to be attained.

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It must be noted that a company cannot be able to sell it stocks to the general public if it has not conducted an IPO. The main reason being that, the IPO changes the status of the company’s shareholding from public to private nature.This does not mean that a company that conducts an IPO has no shareholders in the first place. A company that is privately owned has private shareholders.

Private shareholders are often few in number and hence such a company has lesser activities as compared to that with an IPO. When a company decides to go public, it, therefore, opens doors for the general public to buy shares from it and the company becomes subjected to regulations from Exchange Commissions like the Nairobi Security Exchange for the case of Kenya.

The company decides to adopt an IPO because of the following reasons:

1. Selling shares publicly helps a company to raise more money and pump it into business through re-investing or investing in other money-making projects.

2. A company that has gone public wins more trust and confidence from the general public as well as those who wish to invest in.

3. Having many shares and shareholders is a sign of prestige and it often gives a company an upper hand in securing of some business deals.

According to LOYAL3, there are six steps that a company, which has decided to acquire the status of an IPO go through (five are applicable in Kenya)

1. Bank hiring. The company has to hire an investment bank. The investment bank will then help the company to focus on the financial needs as well as the projected finances that are likely to be raised.

2. Submitting documents to Nairobi Security Exchange. The NSE is the agency that is mandated with the regulation of stock trading as well stock exchanges in Kenya. The documents are meant to explain the business of the company, the risks that are prone to happen and how the company is going to protect he investors.

3. Handing out the preliminary prospectors. This is a document that lists the estimated price range for one share of the company’s stock.

4. Going on a road show. This is now making the interests and the intentions of the company to go public known to the potential investors. Most companies, however, instead of going on a road show, they use the media to reach out to potential investors.

5. The agency mandated with the regulations of the stocks makes the statement public and gives a go ahead for the purchases to be made.

When a company acquires the status of an IPO, it becomes under the watch and scrutiny of the Nairobi Security Exchange (NSE) as well as Capital Market Authority (CMA). The company, therefore, is at liberty to disclose rules and regulations like holdings, investments as well as transactions of its employees including the directors at the helm of the company. The company practically comes under surveillance and its financial activities as well as the trading activities on the stock market are closely monitored. The company will also be required to announce its financial results quarterly and publicly and then full year financial results as well as holding a shareholders meetings.

Before investing in a company that has gone public, a potential investor is given time to go through the company’s prospectors. This is like an invitation that gives a clear overview of the shares being offered, the prices and is what an investor bases on to whether to buy or to subscribe for the shares in the said company.

Why must one read the prospectus?

This is a very important document. For an investor, it is the means by which one can judge how profitable and viable the investment is before one decides whether or not to participate in an initial public offer. An uninformed decision may cost an investor dearly. One must, therefore, read the prospectus very carefully and understand what is really at stake before he/she makes a decision. One should carefully assess the fundamentals of the company offering shares by studying the information provided. Though IPOs appear to be a good investment opportunity because of the general expectation of earning high initial returns, called premiums, risks do exist and there is no guarantee that prices may not fall once the shares start trading in the secondary market.

What one should look in prospectors?

What goes into a prospectus is currently governed by the Companies Act, the Capital Markets Act and the Capital Markets (Securities) (Public Offers, listing and Disclosures) Regulations 2002. While the contents of a prospectus are generally the same, the 3 3 presentation may vary from one issuer to another. By reading the prospectus, one may want to know about the future of a company and whether or not its business will grow.

Bigger turnovers generally mean bigger profits and therefore should lead to enhanced share prices. But numbers do not always tell the whole story. One needs to go over the prospectus with a fine toothcomb for hints on the company’s growth prospects and risk factors. An investor should also want to know who manages the company, what products it sells, who buys the products, and whether or not its business is sustainable. Key information on these aspects can be found in various sections of the prospectus. Investors need to scrutinize and seek advice where they cannot understand. This can be done by analyzing; Basic Information; indicative offering timetable; definitions; corporate directory; summary information; summary of share capital, issue/offer statistics, indebtedness and intended use of the proceeds; details of the public offering; business information; financial information; shareholders, directors and management information; risk considerations associated with business and prospects of company; appendices; and procedures for application and acceptance.

Termination of a Contract

 

All about:

1. Termination of a Contract

2. Termination of a Contract and Benefits and Wages

3. Termination of a Contract and Labour Laws in Kenya

Termination of employment can be initiated by either of the parties to a contract of employment (Employment Act, section 35 (1)). Lawful termination of employment under common law includes:

• Termination of employment by agreement: When the employer and employee agree to bring a contract of employment to an end following an agreement. This may be in case of terminating a contract of apprenticeship; where the period of training expires then the contract will obviously come to an end.
• Automatic termination: A contract of employment may be terminated automatically in circumstances such as death or loss of business of the employer.
• Termination of employment by the employee/resignation: This happens when an employee due to material breach of the contract by the employer decides to resign from his/her employment.
• Termination of employment by an employer: An employer may also terminate the employment of an employee but there is a need to comply with the provisions of the law and contract relating to termination. 

On what grounds can a contract of employment be terminated by an employer?

A contract of employment may be terminated by an employer on the following grounds:

• By mutual agreement between the employer and the worker (Industrial Training Act, section 13 (1) (a)).
• By the employer when the employee dies before the expiration of the period of employment.
• By the employer, if the worker is found by a medical examination to be unfit for employment. Due to sickness or accident, the employee becomes unable to carry out his or her work (Employment Act, section 41(1)).
• By the employer based on the misconduct of employee (Employment Act, section 44 (3)) 

What should an employer do if he or she wants to terminate a contract of employment?

A contract of employment may be terminated at any time by an employer who must give the employee a period of notice of termination (e.g. at the close of day in case of a contract for daily wages, one month or more in case of monthly pay contracts). 

What form of notice should I give as an employer?

A termination notice shall be in writing. In case the employee does not understand the notice, the employer is responsible to ensure that the notice is explained orally to the worker in a language he/she understands (section 35 (2) (3)).  

• If the employee is employed on a daily wage contract, the notice is given at the close of any day without notice. 
• If the employee is employed on a weekly pay or two-week basis the notice period shall be one week or two weeks respectively, given in writing or payment of one week’s salary in place of notice.
• If the employee is employed every month the notice period shall be 28 days and in writing or payment of one month’s salary in lieu of notice.
• In the case where a contract of employment provides that the notice of termination be given for a greater period than one month, then there will be agreed in writing between employer and employee for a longer notice and the agreed notice period shall be of equal duration for both employer and the employee (section 35 (2)). 

Can an employer terminate an employee immediately without allowing them to work during the notice period? Does the law allow this?

In the event, the employer wants to terminate an employee without allowing her/him to serve the notice period the employer will be required to pay the employee the amount that an employee would have received if she/he had worked during the notice period. This is what is usually referred to as payment in lieu of notice (section 36) also (section 38). 

Section 36 provides for payment of equivalent salary in place of notice instead of serving the notice. The length of notice will depend on the interval at which the salary is paid.

Must I, as an employer, pay for transportation after a contract of employment is terminated?

The law is silent about this kind of payment.

What happens if an employee is terminated but they have outstanding leave they have not taken?

In the case of accrued leave upon termination the employer shall pay an employee on a pro-rata basis an amount in cash for the accrued annual leave to which that employee is entitled (section 40 (1) (e)) - provided that it is taken not later than six months after the end of leave cycle or twelve months after the end of leave cycle if (if the employee consented or extension is justified by operational requirements) (section 28(4)). 

Can an employer terminate a contract of employment without notice?

Yes. Either party to a contract of employment may terminate the contract without notice if that party pays the other party a sum equal to the amount of remuneration which would have accrued to the worker during the period of the notice (section 36).

Is a certificate of service and notice mandatory even when terminated on misconduct?

Yes. Both are mandatory regardless of the reason for termination unless the period of service of the employee to the employer has lasted less than four weeks (section 51). 

Can I terminate an employee because I do not like her/him?

No. Under the law, four grounds may justify termination of the employment by the employer and these are:

• Misconduct.
• Physical incapacity.
• Poor performance.
• Employer’s operational requirements/retrenchment. 

An employer may also terminate an employee due to participation in an illegal strike. Therefore for an employer to terminate an employee he/she should have a genuine reason as specified in section 45 (2) and section 46. An employee cannot be fired because an employer does not like them - unless the grounds for this dislike are based on the above-mentioned factors.

What amounts to fair terms termination of employment?

For termination to be fair in the eyes of the law, it has to be both substantively and procedurally fair. The employer needs to have a valid and fair reason for termination. 

Apart from this valid reason of termination, the employer must follow fair procedures for termination as are provided under the Employment Act, section 45 (2) and section 46.). In any form of termination, the employer is required to prove the reasons for the termination otherwise it will be termed as unfair (section 45 (2)). The procedures for termination are different depending on the reason for termination but they all have a common item - the right of an employee to be heard before a termination decision is taken against an employee (section 41 (2)).

Am I to follow the procedure for termination even in cases where an employee is caught red-handed committing serious misconduct, for example, stealing?

Yes. Notwithstanding the serious misconduct of the employee, and the evidence available, the law requires that procedures outlined under the law be followed. Failure to follow the procedure will amount to summary dismissal, meaning an employee is terminated without being availed of an opportunity to defend herself/himself before a fair disciplinary committee. In labor laws, summary dismissal amounts to unfair termination with consequences specified in section 47 and 49 (1) & (3).

Can I terminate an employee who is facing a criminal charge before a court of law?

No one can terminate or take disciplinary action against an employee who is facing the same charges before a court of law unless the two charges are different or do not arise in the same cause of action. 

What are the likely consequences of unfair termination for an employer?

If the labor officer makes the decision that the summary dismissal or the termination of the contract of an employee is unjustified, he may recommend to the employer to pay the employee any or all of the following:

• The wages which the employee would have earned had the employee been given the period of notice to which he was entitled under this Act or his contract of service. 
• Where dismissal terminates the contract before the completion of any service upon which the employee’s wages became due, the proportion of the wage due for the period of time for which the employee has worked; and any other loss consequent upon the dismissal and arising between the date of dismissal and the date of expiry of the period of notice referred to in paragraph (a) which the employee would have been entitled to by virtue of the contract.
• The equivalent of several months’ wages or salary not exceeding twelve months based on the gross monthly wage or salary of the employee at the time of dismissal.
• Alternatively, the employer may have to reinstate the employee and treat the employee in all respects as if the employees' employment had not been terminated; or 
• Re-engage the employee in work comparable to that in which the employee was employed before his/her dismissal, or other reasonably suitable work, at the same wage.
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• For PDF Version of notes just send a request mail to ---gechangazacharia@gmail.com---

Writing your Dissertation/Research Paper

1.  The Introduction

As a general rule, your dissertation introduction should generally do the following things:

• Provide preliminary background information that puts your research in the context
• Clarify the focus of your study
• Point out the value of your research
• Specify your specific research aims and objectives

  2. The background section

  One of the main purposes of the background section is to ease the reader into the topic. It is generally considered inappropriate to simply state the context and focus of your study and what led you to pursue this line of research. The reader needs to know why your research is worth doing. You can do this successfully by identifying the gap in the research and the problem that needs addressing. One common mistake made by students is to justify their research by stating that the topic is interesting to them. While this is certainly an important element to any research project, and to the sanity of the researcher, the writing in the dissertation needs to go beyond ‘interesting’ to why there is a particular need for this research. This can be done by providing a background section. You are going to want to begin outlining your background section by identifying crucial pieces of your topic that the reader needs to know from the outset. A good starting point might be to write down a list of the top 5-7 readings/authors that you found most influential (and as demonstrated in your literature review. Once you have identified these, write some brief notes as to why they were so influential and how they fit together in relation to your overall topic.

  3. The research focus

  The research focus does two things: it provides information on the research focus (obviously) and also the rationale for your study. It is essential that you are able to clarify the area(s) you intend to research and you must explain why you have done this research in the first place. One key point to remember is that your research focus must link to the background information that you have provided above. While you might write the sections on different days or even different months, it all has to look like one continuous flow. Make sure that you employ transitional phrases to ensure that the reader knows how the sections are linked to each other.
  The research focus leads into the value, aims and objectives of your research, so you might want to think of it as the tie between what has already been done and the direction your research is going. Again, you want to ease the reader into your topic, so stating something like “my research focus is…” in the first line of your section might come across overly harsh. Instead, you might consider introducing the main focus, explaining why research in your area is important, and the overall importance of the research field. This should set you up well to present your aims and objectives.
  
  
  4. There are four things you need to remember when creating research objectives. These are:
  • Appropriateness (each objective is clearly related to what you want to study)
  • Distinctness (each objective is focused and incrementally assists in achieving the overall research aim)
  • Clarity (each objective avoids ambiguity)
  • Being achievable (each objective is realistic and can be completed within a reasonable timescale)

    5. The Conclusion

    Your dissertation conclusion will do one of two things. It may fill you with joy, because it signals that you are almost done. Or it may be a particularly challenging test of your mental strength, because by this point in the dissertation you are likely exhausted. It is your job at this point to make one last push to the finish to create a cohesive and organised final chapter. If your concluding chapter is unstructured or some sort of ill-disciplined rambling, the person marking your work might be left with the impression that you lacked the appropriate skills for writing or that you lost interest in your own work.
    To avoid these pitfalls, you will need to know what is expected of you and what you need to include in your successful dissertation conclusion chapter.
    There are three parts (at a minimum) that need to exist within your dissertation conclusion. These include:
    • Research objectives – a summary of your findings and the resulting conclusions
    • Recommendations
    • Contributions to knowledge

A Guide on how to Tenth Line Court Legal Documents ..COURT OF APPEAL PRACTICE DIRECTION - CIVIL APPEALS AND APPLICATIONS

 COURT OF APPEAL PRACTICE DIRECTION - CIVIL APPEALS AND APPLICATIONS

This Practice Direction is issued pursuant to Section 3A and 3B of the Appellate Jurisdiction Act and to assist litigants and advocates to comply with the provisions of the Court of Appeal Rules, 2010.
This Practice Direction relates to Civil Appeals.
References to “the Rules” or a particular rule in this Practice Direction are references to the Court of Appeal Rules, 2010.
References to action required to be taken by “advocates” shall also apply to litigants in person.

Documents filed in the Court of Appeal:

1. All documents filed in the Court of Appeal shall comply with rule 13.  
2. A4 paper shall be used in place of foolscap.
3. Care must be taken to see that all documents filed are legible. Where the original document which has been produced in the court appealed from is of poor quality then a typed version of the original should be included in the application, affidavit  or Record of Appeal immediately after the copy of the original.
4. All pages shall be numbered in the top right hand corner. Every tenth line of every document shall be numbered in the right hand margin. Advocates shall include in all applications, affidavits and Records of Appeal their e-mail and mobile telephone numbers to facilitate communication by the Registry. 

pictorial guide is being prepared ....

TYPES OF INTELLECTUAL PROPERTY AND REGISTRATION PROCESS (Legal Framework)

 Author: Kevin Nam

TYPES OF INTELLECTUAL PROPERTY & REGISTRATION PROCESS

Understanding the registration process of Intellectual Property in Kenya, there is a need to outline the types of intellectual property. There are four types, which include copyrights, patents, trademarks, and trade secrets.[1] A layman needs to familiarise and educate him or herself with these types to have information on protecting their ideas and inventions.
2.1 Copyright

Copyright is a type of intellectual property right. A creator of original work is granted such as sound recording, broadcasts, musical works, audio-visual works, literal works and artistic works to have exclusive use and distribution.[2] The previous original works are provided for in the Kenya Copyright Act, 2001.[3] As long as the concepts of these original works are tangible, their authentic expressions are automatically protected through copyright. It is essentially the expression of an idea in a tangible form that is protected instead of the idea or concept. In essence, it is all about the ownership of a work.
2.11Elements And Duration For Protection Of Copyright

To protect the author, one must ensure that the work has an original character through enough effort and development. The author must have the work reduced to a more material form.[4] With these two elements in place, the duration for protection would vary with the type of work.

First, the copyright will take fifty years from the end of the year that the broadcast was aired for broadcast-related materials.[5] Secondly, the term will start running for fifty years from the year's end upon publication or public availability for photographs and audio-visuals.[6] Thirdly, when it comes to sound recordings, it will take fifty years after the end of the year in which the recording was publicly available.[7] Lastly, for artistic, musical, and literary works, the duration would last fifty years after the owner's death.[8]
2.12 Kenyan Laws Applicable in Copyright protection

i. The Berne Convention

The applicable laws in copyright include The Berne Convention that internationally protects the authors' works and rights. The Convention upholds the following principles, i.e. the principle of national treatment, the principle of automatic protection, and the principle of independence of protection.[9] The nation treatment principle entails protecting work from any contracting states in other states by giving equal protection.[10] The principle of automatic protection entails according same protection without imposing formal conditions.[11] Lastly, the principle of independence of protection means that the country of origin's protection will not deter independent protection from member states.[12]

ii. The WIPO Copyright Treaty

The World Intellectual Property Organization (WIPO) Copyright Treaty is also known as the WCT. It protects the author's literary and artistic works by ensuring there is enough maintenance and development.[13] There has always been a division between the public and the authors. The treaty aims to bring balance between them, especially the research, education and information access.

iii. The Constitution of Kenya, 2010

When it was promulgated, the Constitution of Kenya, 2010, protected the rights and works of authors. Article 2 (6) of the Constitution states that "Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution."[14] Notably, Kenya has ratified both the Berne Convention and the WIPO Copyright Treaty. Additionally, Article 11 of the Constitution states that:

1) This Constitution recognises culture as the foundation of the nation and as the cumulative civilisation of the Kenyan people and nation.

2) The State shall—

a. promote all forms of national and cultural expression through literature, the arts, traditional celebrations, science, communication, information, mass media, publications, libraries and other cultural heritage;

b. recognise the role of science and indigenous technologies in the development of the nation; and

c. promote the intellectual property rights of the people of Kenya.

3) Parliament shall enact legislation to—

a. ensure that communities receive compensation or royalties for the use of their cultures and cultural heritage; and

b. recognise and protect the ownership of indigenous seeds and plant varieties, their genetic and diverse characteristics and their use by the communities of Kenya.[15]

The above Article has been well articulated to promote intellectual property rights and protect the authors.

iv. Copyright Act, 2001

The Copyright Act protects literary, musical, artistic, audio-visual works, sound recordings, and broadcasts. Section 3 of the Act establishes KECOBO to administer and enforce copyright laws and rights.[16] KECOBO ensures that there are criminal sanctions and civil remedies. The body is also supposed to provide border control measures and conservatory measures like Anton Pillar injunctions.[17] Regarding technical devices, the body ensures penalties and remedies when such devices are abused or breached.[18] Therefore, the Act oversees that works are eligible for copyright; it enumerates the owners' rights, ensures that copyright is implemented, and provides available remedies. Fair use of an author's work may not require any permission.


2.13 Requirements For Registration Of A Copyright

For KECOBO to register a copyright, some requirements need to be attained. They include:

i. Having original authorship,

ii. Presenting a tangible material

iii. The application form is submitted with two copies of the original work

iv. A commissioner of oaths must file and commission the application forms

v. Payment of prescribed fee when submitting the application form

vi. Issuance of the certificate of registration by kecobo after verification of the application
2.2 Patents

In the field of technology, there is a lot involved due to globalisation and changes in innovations. In technology, there are always solutions brought through inventions hence the need to patent them. These inventions are applicable in trade or industry and can be in the form of composition of matter, machinery, the process or any helpful improvement that would not be obvious.[19] Kenyan nationals need to be creative; hence their creativity and inventions cannot go unprotected as patents would act as incentives for innovations and aggressiveness in promoting trade nationally, regionally and internationally. In essence, there is room for more development and research as inventors' creations are monopolised for specific periods. It benefits the Kenyan society and promotes the culture such as the kiondo and other livestock vaccines. As new products enter the market, there is an economical boot as the market becomes continuously accommodative.
2.21 Types of Patents

Patents have different descriptions in terms of the technological aspect that has been brought to light. It means that they provide both clarity and specifications on words for the public to read as they promote knowledge sharing. In essence, patents fuel knowledge and progress as essential resources in different fields such as academics, entrepreneurs, researchers and inventors.[20] Therefore, there are different types of patents, as highlighted below.

i. Plant Patent

when new breeds of plants are produced, patents need to protect them in their nonsexual means of cuttings.[21] This kind of patent only focuses on conventional horticulture as opposed to genetically modified plants. However, the Industrial Property Act, 2001 does not patent plant varieties. The Act can patent parts and products that come from biotechnological processes.

ii. Industrial Design Patent

Valuable items have ornamental designs. It means that the design patent ought to protect them, such as the shape of a bottle. The patent document comprises a few words, and it primarily consists of drawings and pictures or graphics interpretations.[22] With such few words, the design patents are hard to search for. However, such a patent has been revolutionised in some industries, such as software companies that protect their user interfaces in specific elements and the shape of touch screen devices. It is well defined in sections 84 to 93 of the Industrial Property Act, 2001.[23]

iii. Utility Patent

It is the most common patent in the universe. However, it has formal and technical documentation that is available for public knowledge. It provides more information as to the process, system and how to use new machines.[24] This patent has had challenges regarding the types of inventions that can be protected during the development and research of new technologies and internet-delivered software. It is well defined in sections 81, 82 and 83 of the Industrial Property Act, 2001. [25]

iv. Provincial Patent

It is a type of patent that requires the inventor to have less proof and formality as they only have to show that he had the invention; hence the invention patent will be pending once it is in the file. However, if the investor fails to file a formal utility patent within a year, the filing date will be lost.
2.22 Kenyan Laws Applicable in Patent protection

i. Paris Convention

The Convention was aimed at the protection of Industrial Property. It has specific provisions that promote national treatment. The Act domesticates such a right and includes the right of priority.[26]

ii. Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement

The general agreements in tariffs and trade (GATT Agreement) creates the TRIPS as a multilateral trade agreement. [27] TRIPS covers intellectual property aspects as it provides guidelines for each World Trade Organisation (WTO) member State.[28] Members are supposed to adhere to the minimum standards of protection.

iii. Patent Co-operation Treaty (PCT)

WIPO administers this system. It is a system for filing international patent applications. [29] Through a single application in any Member State, an applicant can file the same with ease.

iv. Harare Protocol

The African Regional Intellectual Property Organization (ARIPO) administers this protocol.[30] On behalf of the member States, ARIPO can register industrial designs grant patents. Also, it can register utility models on behalf of the contracting states.

v. The Constitution of Kenya, 2010

As per the Kenyan Constitution, "The State shall support, promote and protect the intellectual property rights of the people of Kenya."[31] It protects the owners of the patents. It goes further to enable the government to acquire the same at an incentive compulsorily. The Article reads:

(3) The State shall not deprive a person of property of any description, or any interest in, or right over, property of any description, unless the deprivation—

(a) results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or

(b) is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that—

(i) requires prompt payment in full, of just compensation to the person; and

(ii) allows any person who has an interest in, or right over, that property a right of access to a court of law.[32]

The Constitution being a grundnorm in protecting intellectual property rights, would then try to align the Industrial Property Act, 2001's definitions.

vi. Kenya Industrial Property Act, 2001

The Industrial Property Act (Number 3 of 2001) in its preamble states that it is:

"An Act of Parliament to provide for the promotion of inventive and innovative activities, to facilitate the acquisition of technology through the grant and regulation of patents, utility models, technovations and industrial designs, to provide for the establishment, powers and functions of the Kenya Industrial Property Institute and for purposes incidental thereto and connected therewith"[33]

The Act establishes the Kenya Industrial property Institutes that previously existed as Kenya Industrial Property Office (KIPO).[34] The Institute protects industrial property rights and aims at fostering innovation for sustainable development in Kenya.

vii. The Kenya Industrial Property Regulations, 2002

These Regulations were enforced through the powers conferred by the Industrial Property Act, 2001.[35] It is for carrying out the objects and purpose of the Act. The Minister for Trade and Industry may make such regulations as they may deem fit to protect intellectual property rights.[36]

viii. Industrial Property Tribunal Rules, 2002

It is subsidiary legislation of the Kenya Industrial Property Act, 2001. Therefore, it establishes the Tribunal and the rules that would govern requests, appeals, and licensing. It also provides for the forms that ought to be used in such processes.
2.23 Requirements For Registration Of A Patent

In Kenya, beginning at applying, the owner would be given 20 years for its expiry. The procedure would thus entail:



i. Filing

In this step, there is a request form (IP Form 3) that an applicant fills containing the document specification, the invention's title and the background information.[37] The Applicant is supposed to fill in the detailed description of the patent. Also, if there are necessary drawings, the application should include the claims and abstract.[38] The Applicant is allowed 14 days to correct any errors.

ii. Examination

According to the Industrial Property Act, 2001, there should be an examination to determine if the application can be granted or refused.[39] It states that:

(1) An application for a patent shall be filed with the Managing Director and shall contain—

(a) a request;

(b) a description;

(c) one or more claims;

(d) one or more drawings (where necessary); and

(e) an abstract.

(2) Where the Applicant's ordinary residence or principal place of business is outside Kenya, he shall be represented by an agent who shall be a citizen of Kenya admitted to practice before the Institute.

(3) The request shall state the name of, and prescribed data concerning the Applicant, the inventor and the agent, if any, and the title of the invention; and where the Applicant is not the inventor the request shall be accompanied by a statement justifying the Applicant's right to the patent.

(4) The appointment of an agent shall be indicated by the designation of the agent in the request or by furnishing a power of attorney signed by the Applicant and, where subsection (2) applies, the agent shall be designated in the request.

(5) The description shall disclose the invention and at least one mode for carrying out the invention, in such full, clear, concise and exact terms as to enable any person having ordinary skills in the art to make use and to evaluate the invention and that description shall include any drawing and relevant deposits as in the case of micro-organisms and self-replicable material which are essential for the understanding of the invention.

(6) The claim or claims shall define the matter for which protection is sought and shall be clear and concise and fully supported by the description.

(7) The abstract shall merely serve the purpose of technical information; in particular, it shall not be taken into account for the purpose of interpreting the scope of the protection sought.

(8) The details of the requirements with which the application must comply shall be prescribed by the regulations made under this Act.[40]

iii. Publication of a Patent Application

The publication will be conducted after 18 months of the earliest date that has been prioritised. If an applicant decides, they can request an express publication. However, the Patent Cooperation Treaty (PCT) is an exemption since their publications are done in the international phase.

On the other side, PCT has its registration processes, which include:

i. The National Phase

It entails essentials such as form IP 13, publication of the patent specification document under PCT, and the bibliographic page. [41]All this ought to be done within 30 months from the international filing date. However, if there is any priority claim, the priority date supersedes.[42]

ii. Examination

Upon examination, f the Industrial Property Act 2001 states that the application would be deemed as that which was nationally filed.[43] It shall be submitted in form IP8. The application will be considered abandoned if not filed within three years from the date of filing.[44] However not binding, the examiner's opinion and an international search report are usually taken, and other IP offices would follow up on the inventive steps and novelty.[45] The examiner would compare prior art documents and assess if they are mere background information. Where there is a lack of local examiners, WIPO would be used to assist.[46]

iii. Grant, registration and publication of a patent

According to the Industrial Property Act 2001, the patent shall be granted and registered if there is no rejection.[47] A patent certificate is issued if everything is in order. If an applicant wants to do amendments and corrections, they would be given 90 days within the notice days, which can be extended for 60 days. If Applicant is dissatisfied with the office's decision, they can request for invalidation. From the date of post-grant, the invalidation should be filed within nine months.
2.3 Trademarks

A Trade Mark is a sign that distinguishes enterprises' goods in commercial and industrial States in a marketplace. The sign can consist of colours, monograms, numbers, letters or more distinctive works or their combinations.[48] The Trademarks Act describes a mark as "includes a distinguishing guise, slogan, device, brand, heading, label, ticket, name, signature, word, letter or numeral or any combination thereof whether rendered in two-dimensional or three-dimensional form."[49] Therefore, there is exclusive ownership in Kenya on a specific mark that may keep infringers and protects the owner's rights in case of a dispute.[50] It is a unique mark that makes one's products stand from the rest and avoid any resemblance that may dupe the public.
2.31 Types of Trade Marks

i. Service Mark

A commercial or industrial enterprise may choose to input a Service Mark to distinguish its services from others.[51] Such a sign may bear characteristics that are described above concerning trademarks. A good example is UCHUMI, which was a service mark of Uchumi Supermarkets Limited.

ii. Certification Mark

Certification marks can identify goods and services that have met a specifically defined standard. Such a mark can be licensed to others, but it is owned by an individual to identify specific goods and services that have met the standard.[52] A good example is the Kenya Bureau of Standards certification mark.

iii. Distinguishing Guise

Some products and packages are identified with unique shapes.[53] They use a distinguishing guise. For example, a rabbit shape can be used and moulded in a kids' candy; thus, registration of that shape would follow as a trademark as a distinguishing guise.

iv. Well Known Marks

These marks benefit from stronger protections since they are well known in the market space, and there is no need for registration even when they have not been used in a given territory.[54] When certain conditions are met, the protection can be forwarded to unrelated goods and services. A country's competent authority must know such a mark, and Kenya amended the Trademark Act in August to capture "well-known marks".[55] A good example is the use of soft drinks' marks that are well known for an apparel company with permission. These marls are used against confusingly similar marks on the same line of products or when certain conditions are met on unrelated products. They serve to prevent companies from joy-riding on the reputations and goodwill of existing companies.

v. Collective Marks

Associations or cooperatives own such marks that help them to market their products. They establish criteria such as quality standards.[56] It is upon such collaboration and complying with measures that individual companies use the mark.
2.33 Registration

Through Common-law, the registration of a Trade Mark is not mandatory after using the same mark for a certain period. However, it is advisable to register a trademark to ease the protection of a person's rights in case of challenges. The burden is usually on the challenger. If a business would need to start a franchise, a registered trademark comes in handy as it ensures expansion having a valuable asset such as Coca-Cola Company's logo. The registration process is envisioned in the Trademark Act Cap 506.[57] A search can be conducted upon requesting the Registrar by filing trademark form TM 27.[58] After all, these are met, and a duly completed trademark application form (TM 2)[59] is on record, the following steps are taken:

i. Formality Examination

According to the Trademark Act Cap 506, a person may file an application, which the Registrar can allow or reject, and an appeal can follow if left.[60] An examination is conducted on the application to confirm that all necessary fees have been paid and met formality requirements.

ii. Substantive Examination

Another examination is conducted to know the type of category that the trademark belongs in. it determines if there are any conflicts with other existing brands. It also determines which products are excluded from the Act.

iii. Publication

If there are no disputes or refusals, the Trade Mark will be published in the Industrial Property Journal or the Kenya Gazette. According to Trademark Act Cap 506, a person will be allowed to oppose the registration in written form within a specific timeline from the date of the advertisement and state the grounds of opposition.[61] A grace period of 60 days is allowed to give notice of any opposition.

iv. Registration

When there is no opposition or the opposition period has expired, and when the opposition has been ruled in favour of the proprietor, the trademark will be registered unless there are any errors.

The Trademark Act Cap 506 states that the registration will be completed when the application is not opposed, and if resisted, the same has been decided in the Applicant's favour.[62] The application will be treated as abandoned within 12 months if the Applicant defaults in registering. Also, the Trademark Act Cap 506 states that a proprietor can register a part of a trademark or trademarks as a series.[63] It is as long as each brand satisfies all the conditions necessary to register an independent trademark.

v. Renewal

The Trademark Act Cap 506 states that a registered trade mark shall expire after ten years and can be renewed from time to time and published in the Journal or in the Kenya Gazette. The renewal is indefinite upon payment of the requisite fee. If the proprietor does not pay such a fee, the Trade Mark will be removed from the register.[64]




PDF version available at Academia Link






[1] Waruingi, Joseph Karanja. Intellectual property rights and their influence on ICT innovations in Kenya. The University of Liverpool (United Kingdom), 2019.


[2] Otike, Japhet. "Copyright Law in Kenya." Nairobi: KLISC Workshop. 2011.


[3] Copyright Act 2001, S.22


[4] Supra n 2


[5] Supra n 2


[6] Supra n 2


[7] Supra n 2


[8] Supra n 2


[9] Deepanshi, J. I. M. S., and Kunal Marwah. "Influence of Berne Convention On Copyright Laws In India." Indian Journal of Law and Legal Research 2.1 (2021): 170-175.


[10] ibid


[11] ibid


[12] ibid


[13] Sihanya, Ben. "Copyright law, teaching and research in Kenya." E. Afr. LJ (2005): 28.


[14] Constitution of Kenya 2010, Art 2 (6)


[15] Constitution of Kenya 2010, Art 11


[16] Copyright Act 2001, S 3


[17] Nankuiharrison, Janet. Evaluation of Copyright Awareness among Undergraduate Students: A Case study of Africa Nazarene University, Kenya. Diss. Moi University, 2015.


[18] ibid


[19] Muma, Andrew. "Intellectual Property and Innovation Law in Kenya and Africa." (2018): 165.


[20] Nyakundi, Joshua, and Nathan Mnjama. "The management of patent information in Kenya." (2007).


[21] Liu, Qing, et al. "Import competition and firm innovation: Evidence from China." Journal of Development Economics 151 (2021): 102650.


[22] ibid


[23] Industrial Property Act 2001, s 84 – s 93


[24] Supra n 21


[25] Industrial Property Act 2001, s81 – s 83


[26] Galvez-Behar, Gabriel. "The 1883 Paris Convention and the Impossible Unification of Industrial Property." (2020): 38-68.


[27] Correa, Carlos. Trade related aspects of intellectual property rights: a commentary on the TRIPS agreement. Oxford University Press, 2020.


[28] Supra n 27


[29] Caffrey, Colm, and Cristina Valentini. "Applications of technology in the Patent Cooperation Treaty (PCT) Translation Division of the World Intellectual Property Organization (WIPO)." The Routledge Handbook of Translation and Technology. Routledge, 2019. 127-147.


[30] Alves, Ines Monteiro, and Joao Pereira Cabral. "ARIPO Contributes to Development of Industrial Property in Africa." Managing Intell. Prop. 278 (2018): 85.


[31] Constitution of Kenya, Art, 40 (5).


[32] Constitution of Kenya Article 40 (3)


[33] Industrial Property Act 2001


[34] Gacuhi, Alexander R. "Science and Technology Policy in Kenya." Science and Technology Policy in East Africa: 33.


[35] Industrial Property Act, 2001, S 119


[36] Ibid


[37] Kenya Industrial Property Institute. How to apply for a patent. 2017. https://www.kipi.go.ke/index.php/how-to-apply-for-a-patent. 28 August 2021.


[38] ibid


[39] Industrial Property Act 2001, s 34


[40] Supra n 39


[41] Kenya Industrial Property Institute. PATENT CO-OPERATION TREATY. 2017. https://www.kipi.go.ke/index.php/pct. 29 August 2021.


[42] ibid


[43] Industrial Property Rights Act 2001, S 44


[44] Supra n 41


[45] Supra n 41


[46] Supra n 41


[47] Industrial Property Rights Act 2001, S 45


[48] Kameri-Mbote, Patricia. "Intellectual property protection in Africa: assessment of the status of law, research and policy analysis on intellectual property rights in Kenya." (2005).


[49] Trademark Act Cap 506


[50] ibid


[51] Kamaitha. Types of trademarks we have in Kenya. 28 December 2017. https://www.herbusiness.co.ke/types-of-trademarks-we-have-in-kenya/. 30 August 2021.


[52] Supra n 51


[53] Supra n 51


[54] Kenya Industrial Property Institute. Requirements for Registration of Trade marks. 2017. https://www.kipi.go.ke/index.php/requirements-for-registration-of-trademarks. 31 August 2021.


[55] ibid


[56] Kenya Industrial Property Institute (KIPI). TRADE MARKS An introduction to Trade marks for Small and Medium -size enterprises. Nairobi: Kenya industrial Property institute, n.d. PDF.




[57] Trademark Act Cap 506, s 20, s 21, s 22, s 23 & s 24


[58] Kenya Industrial Property Institute. Trademark Registration Procedure. 2017. https://www.kipi.go.ke/index.php/trademark-registration-procedure. 1 September 2021.


[59] ibid


[60] Trademark Act Cap 506, s 20


[61] Trademark Act Cap 506, s 21


[62] Trademark Act Cap 506, s 22


[63] Trademark Act Cap 506, s 24


[64] Trademark Act Cap 506, s 23