Copyrights Protection under Kenyan Laws

The Copyright Act, (Act No. 12 of 2001), is the main legislation dealing with administrative and enforcement structures and mechanisms for copyright protection and related rights in Kenya.  It came into force on 1st February, 2003.
The main features of the Copyright Act, inter alia, include:-

1.  The Establishment of the Kenya Copyright Board (Kecobo), which is the body mandated with the overall administration and enforcements of copyright as well as the related rights.  Kecobo has copyright inspectors and special prosecutor who are mandated to investigate and prosecute copyright infringement cases.
2.  Moreover, Kecobo has introduced the anti piracy security device which are used to identify the legitimate products especially in the audio and audio-visual works. This provision is intended to help in the identification of works.  Trading in works without the anti piracy security device amounts to an offence.  Kecobo is also mandated to licence and supervise the activities of the collective management societies (also known as the Reprographic Rights Organisation) provided for in the Act. These include, the Music copyright Society of Kenya (MCSK) which is a body mandated to collect royalties in public performance and broadcasting on behalf of its members and distribute the same to members.  These also include Kenya Reprographic Rights Organization (KOPIKEN), which seeks to protect and promote authors and publishers of literary works. Kecobo works with other related government agencies like the Kenya Revenue Authority and the Anti- Counterfeit Agency to ensure proper systems are put in place for copyright and related rights protection.  
3.  The Act grants the owner of copyrighted work exclusive economic and moral rights over the works. These include exclusive rights of the reproduction or distribution of copyrights rights for any economic gain, exclusive rights of communication or broadcasting of the work to the public, and exclusive rights to import and export the copyrighted work.
4.  The Act has both civil and criminal remedies and sanctions for the enforcement of copyright and related rights. Thus, the owner of copyrighted work is mandated by the Act to institute civil suit for a claim of compensatory damages against the offender for illegal reproduction or use of the work. Under the criminal sanctions, copyright is infringed where one is found in possession of at least two counterfeit copies of the copyrighted work.    The word “copy” in the Act is defined to mean a reproduction of a work in any manner or form and includes any sound or visual recording of a work and any permanent or transient storage of a work in any medium, by computer technology or any other electronic means.   
5. There are specific provisions for Anton Piller (search and seizure) orders in order to ensure protection of evidence and where the offender is likely to abscond.
6. The Act outlaws activities that are likely to encourage counterfeiting and piracy such as circumvention of technological devices used to protect copyright rights or the removal of rights management systems.

The maximum fine payable under the Act is Kenya Shillings 800 000/= (about US$ 10 000) and a maximum jail term of 10 years.

The Act provides for the following exemptions- also known as “fair dealing’:
Utilization of copyrighted works for purposes of scientific research, private use, review or reporting of current events subject to acknowledgement of the source;The inclusion of a collection of literary or musical works of not more that two passages from the work in question for use in registered school or university;
Reproduction or a work by or under the direction or control of the government or by public libraries, non-commercial documentation centres and scientific institutions for public use;
Computer programmes can be reproduced for purposes of correction or error, for back-up and for customisation or for purpose that is not prohibited under any licence or agreement whereby the person is permitted to use the programme or software.

Categories of copyright works to be registered by Kecobo include:

•     Musical;
•     Audio Visual;
•     Literary like charts tables and computer programmes;
•     Artistic;  
•     Sound recording ;and
•     Broadcasts.

Please note that literary, musical or artistic works is eligible for copyright protection if it meets the following conditions:-

(a) The work must be original;
(b) The work must be in written, recorded or in material form (that is, it      should neither be oral nor verbal in nature).

The Procedure for the Copyright Registration in Kenya
Only original literary, artistic, musical, audio visual works, sound recordings and broadcasts are eligible for copyright protection.

For any of the above works to be eligible for registration:

1. The work must of original authorship that is, not copied from somebody else.  
2. Application for registration must be in the prescribed form which can be obtained from Kecobo. The  applicant will be required to fill in  his name, physical and postal addresses and the category of the works- either literally, artistic, musical or audio visual.;
3. The applicable must attach two copies of the works, where applicable, to the application;
4. The work must be in tangible form including digital form e.g., books, cassettes, CD, flash disc, VCD,CD or DVCD; and
5. The duly completed application form must be witnessed by a commissioner for oaths and accompanied by the required fees of about KShs. 600/-.

A agent employed to register work  will be require to produce identification documents as well as letter of authority to act as agent from the original owner of the work.

On receipt of the application, Kecobo may, after making such inquiry as it may deem fit, enter the particulars of the work in a Copyright Register.The Certificate of Registration will then be issued to the author after registration.
The whole process takes about one month to two months.
Copyright protects work for duration of fifty (50) years after the death of the author. After this period, anybody is free to reproduce it without permission from the author or publisher. In case of joint authorship, fifty (50) years aforesaid counts from the date of death of the last author. 
The sound recordings and broadcasts are protected for 50 years after the end of the year in which the recording was made, or the broadcast took place, respectively.
Kenya also a signatory to the following treaties on copyright rights protection:

•     The Berne Convention, 1886;
•     The Rome Convention, 1961;
•     WIPO Performances and Phonogrammes Treaty, 1996;
•     WIPO Copyright Treaty, 2001; and
•     The Trade Related Aspect of Intellectual Property (TRIPS), 1994.

Controlled Tenancies under the Kenyan Law

Controlled tenancies are tenancy defined under the Landlord and Tenant Act (Shops, Hotels and Catering Establishments Act), (Cap 301) of the Laws of Kenya (The “Act”).  

The preamble to this Act states that it is “an Act of Parliament intended to protect the tenants from the exploitation and eviction from business premises by the landlords”.  The supremacy of the Act when compared  with other statutes applicable on tenancies  stems from section 2(3) thereof which provides as follows:

Notwithstanding anything contained in any other written law requiring registration of tenancies, evidence of the tenancy may, for the purposes of this Act, be given in any proceedings, whether such tenancy is registered or not.

This section means and implies that, where there is a controlled tenancy, all other statutes relating to the matter, and in conflict with the Act, should be disregarded.

Under subsection (2) of the Act, where there tenancy agreement is not in the prescribed form, the terms and conditions set forth in the Schedule to Act will be deemed to be incorporated in the Act.

A “shop”, under the Act is defined to means: premises occupied wholly or mainly for purposes of retail or wholesale trade or business or for purposes of rendering services for money or money’s worth.

Under section 2 a “tenancy” is defined as:

a tenancy created by a lease or underlease, by an agreement of lease or underlease, by a tenancy agreement or by operation of the law, and includes a sub-tenancy but does not include a relationship between a mortgagor and mortgagee as such.

A “controlled tenancy”  is defined as:

2(1) a tenancy for a shop, hotel or catering establishment

(a) Which has not been reduced into writing; or

(b) Which has been reduced into writing and which –

(i)   is for a period not exceeding five years

(ii)  contain provision for termination, otherwise than for breach of covenant, within five years from commencement thereof; or

(iii) relates to premises specified by the Minister in a Gazette Notice to be a controlled tenancy….

Despite the above provision, a controlled tenancy cannot arise where one of the parties is government department or agency or a local authority.

Under section 4 of the Act, a controlled tenancy cannot be terminated except as provided for in the Act and for grounds specified in section 7 thereof.  Subsection (1) of this section states clearly that section 4 will take precedence over all other written laws, and even overrides the agreement of the parties.  Subsection (2) of section 4 goes on to provide that termination of a controlled tenancy or alteration of the agreed terms and conditions. 

This subsection must be read together within section 7 of the Act, which provided for the grounds which may be invoked by the landlord to terminate a controlled tenancy. 

It is important to note that the Act does not provide for grounds on which a tenant can terminate a controlled tenancy, and accordingly if the tenancy wishes to terminate a controlled tenancy he must be do in accordance with the mandatory provisions of the Act, and specifically sections 4 and 5 thereof.

Where the landlord intends to terminate a controlled tenant, he must give him a termination notice in the prescribed form (that is, FORM A in the Schedule to the Act), and come within the ambit of the specified grounds in section 7 aforesaid.   Under section 4(4) of the Act, the minimum prescribed notice period that should be given to a tenant by the landlord should not be less than two (2) months from the date of receipt thereof.

The termination notice must, inter alia, inform the tenant of his right within one (1) months from the date of the notice to communicate to the landlord of whether or not he intends to comply with the notice or oppose it. If after receiving the termination notice, the tenant does not notify the landlord of its/his willingness to comply with the notice or to refer the matter to the Tribunal in accordance with section 6, then the notice will have the effect stated in section 10 of the Act. That is, ‘from the date therein specified to terminate the tenancy....’

As stated above, the landlord must rely on one or more grounds stated under section 7 of the Act. However, a landlord should not seek to terminate the tenancy and at the same time alter terms and conditions of the tenancy.

The reason for this is that; section 4 uses a disjunctive “or” implying that a notice should not have double-barreled effect.  For instance, the landlord cannot seek to terminate the tenancy as well as increase the rent.  It must be one or the other but not both.If the tenant does not wish to vacate, it/he must submit the matter to the Tribunal within the prescribed time in accordance with section 6 of the Act.  Where the matter is referred to the Tribunal, then the tenancy will not be terminated until after a decision of the Tribunal to that effect.

However, despite such an action by the tenant, where the objection to the notice is unmeritorious, the Tribunal may make an order for possession in favour of the Landlord and order the tenant to pay rent arrears or mesne profits.

Where the tenant does not refer the matter to the Tribunal and the tenancy is terminated in accordance with section 10 discussed above, the tenant will automatically lose his ‘protected’ status at the expiry of the notice period.

Moreover, in case of such a termination, the Tribunal is debarred by law from having any legal jurisdiction in the matter. Thus, the landlord can take the possession of the premises from the tenant, if this can be done peacefully. But if the tenancy refuses to give him possession of the leased premises, the landlord will be obliged to seek eviction orders from the court.

Moreover, where the landlord permits the tenant to continue hold over after the termination of the original protected tenancy and continue to accept rent, the tenancy between the parties will resume being a protected tenancy.

Under section 4(3), where a tenant intends to give a notice to terminate or to alter terms and conditions of a controlled tenancy, the legal effect of such a notice is different from that of landlord’s notice.   Nevertheless, like the landlord’s notice, a tenant’s notice should comply with the requirements of the law.  Therefore, where a valid notice is not given, the tenancy will continue to run, even if the premises is vacated, until the giving of such notice or until the landlord re-enters the vacated premises.

Moreover, where the tenant gives the notice to terminate, he must vacate the premises at the expiry of the notice period. Failure to vacate as such would make such a tenant liable to pay double rent for the period of holding over as provided for in section 14 of the Distress of Rent Act (Cap. 293). However, it should be noted that unlike section 17 of the Distress for Rent Act of 1737 (of UK),  the Kenyan Act does not  does not provides for payment of double rent if a tenant  were to fail to vacate the premises at the determination of the lease. Double rent will therefore only apply where a tenant after giving the termination notice, refuses or fails to vacate the premises at the expiry of the notice period.

With regard a notice to alter the terms and conditions of a controlled tenancy, is important to note that such a tenant’s notice does not have a reciprocal effect similar to a landlord’s notice as under section 10 of the Act; of altering the terms and conditions or increasing the rent by operation of the law at the expiry of the notice period, if the landlord does not refer the matter to the Tribunal.  Indeed, courts have held that with regard to alteration of terms and conditions of the tenancy or increase of rent, section of the Act 10 applies only in the event of a landlord’s notice and never in the case of a tenant’s notice.

In order to avoid coming within the ambit of the Act, most landlords insist on granting written tenancies for a term more that 5 years, e.g. 5 years and 3 months.

Applying for Work Permit in Kenya

WORK/ENRTY PERMITS IN KENYA

Introduction
Work permit is a legal document that one is require to have in order to work in a foreign country.
The Kenyan Immigration Act prohibits a foreigner to reside, work or engage in any employment or business in Kenya without a valid work or entry permit issued by the Immigration Department.

Applications for work/entry permit to work or reside in Kenya may be considered when submitted by prospective employers on behalf of their prospective employees. For foreigners intending to be employed in Kenya, their work permit may not normally be approved unless the prospective employer(s) can show evidence that they have been unable to fill the particular post(s) due to lack of suitably qualified personnel in the Kenya Labour Market. Those seeking to work in Kenya must therefore ensure that their prospective employers have secured appropriate Entry/Work Permits before they proceed to Kenya.

For Foreigners who wish to engage either alone or in Partnership in Business, specific trade or profession would have to furnish evidence that they have obtained or are assured of obtaining relevant licence(s), Registration or other authority that may be necessary in order to engage in the contemplated business, trade or profession. In addition, they would be required to prove that they have sufficient capital derived from sources outside Kenya which is certain to be remitted to Kenya for the purpose.

For those foreigners who have attained retirement age and wish to emigrate to Kenya may make application for issue of Entry/Work Permit under Class K.
They should have in their own right and at their full and feel disposition on assured annual income derived from sources outside Kenya and will be remitted to Kenya or derived from property situated, or a pension or annuity payable from a sufficient investment capital to produce such assured income that will be brought into and invested in Kenya. 

Applicants for Entry/Work Permit(s) of this class must undertake not to accept paid employment of any kind should they be granted Entry/Work of this class.

Types of Work Permits and Requirements

 Below are classes of work entry/ permits that can be granted under Kenyan Law and the brief requirements thereof
Class A: A person who is offered specific employment by a specific employer who is qualified to undertake that employment, and whose engagement in that employment will be of benefit to Kenya. Further details on this class of work permit are given below.

Class B: A person who is offered specific employment by the Government of Kenya, the East African Community or any other person or authority under the control of the Government or the Community, and whose engagement in that employment will be of benefit to Kenya.

Class C: A person who is offered specific employment under an approved technical aid scheme under the United Nations Organisation or some other approved agency (not being an exempted person under section 4(3) of this Act), and whose engagement in that employment will be of benefit to Kenya.

Class D: A person, being the holder of a dependant's pass, who is offered specific employment by specific employer, whose engagement in that employment will be of benefit to Kenya.

Class E: A person who is a member of a missionary society approved by the Government of Kenya, and whose presence in Kenya will be of benefit to Kenya.
 

Class F: A person who intends to engage, whether alone or in partnership, in the business of agriculture or animal husbandry in Kenya, and who:
(a) has acquired, or has received all permission that may be necessary in order to acquire, an interest in land of sufficient size and suitability for the purpose; and
(b) has in his own right and at his full and free disposition sufficient capital and other resources for the purpose, and whose engagement in that business will be of benefit to Kenya.

Class G: A person who intends to engage, whether alone or in partnership, in prospecting for minerals or mining in Kenya, and who:
(a) has obtained, or is assured of obtaining any prospecting or mining right or licence that may be necessary for the purpose; and
(b) has in his own right and at his full and free disposition sufficient capital and other resources for the purpose, and whose engagement in that business will be of benefit to Kenya.

Class H: A person who intends to engage, whether alone or in partnership, in a specific trade, business or profession (other than a prescribed profession) in Kenya, and who:
(a) has obtained, or is assured of obtaining, any licence, registration or other authority or permission that may be necessary for the purpose; and
(b) has in his own right and at his full and free disposition sufficient capital and other resources for the purpose (usually not less than KShs. 10,000,000/-) , and whose engagement in that trade, business or profession will be to the benefit of Kenya.

Class I: A person who intends to engage, whether alone or in partnership, in a specific manufacture in Kenya, and who:
(a) has obtained, or is assured of obtaining, any licence, registration or other authority or permission that may be necessary for the purpose;
(b) has in his own right and at his full and free disposition sufficient capital and other resources for the purpose, and whose engagement in that manufacture will be to the benefit of Kenya.

Class J: A member of a prescribed profession who intends to practise that profession, whether alone or in partnership, in Kenya, and who:
(a) possesses the prescribed qualifications under the relevant Kenyan Laws; and
(b) has in his own right and at his full and free disposition sufficient capital and other resources for the purpose, and whose practice of that profession will be to the benefit of Kenya.
 

Class K: A person who:
(a) is not less than 21 years of age; and
(b) has in his own right and at his full and free disposition assured annual income of not less than the prescribed amount being an income that is assured, and that is derived from sources other than any such employment, occupation, trade, business or profession as is referred to in the description of any of the classes specified in the Schedule to the Act, and being an income that either
(i) is derived from sources outside, and will be remitted to Kenya; or
(ii) is derived from property situated, or a pension or annuity payable from, sources in Kenya; or
(iii) will be derived from a sufficient investment capital to produce such assured income that will be brought into and invested in Kenya; and
(c) undertakes not to accept paid employment of any kind should be he be granted an Entry Permit of this class, and whose presence in Kenya will be of benefit to Kenya.

Class L: A person who is not in employment, whether paid or unpaid, and who under the repealed Acts was issued with resident's certificate, or who would have on application been entitled to the issue of such certificate, or who has held an Entry Permit or Entry Permits (whether issued under this Act or the repealed Acts or both) of any of the foregoing classes of Entry Permits A-K for a continuous period of not less than ten years immediately before the date of application, and whose presence in Kenya will be of benefit to Kenya.
 

Applying for a CLASS A WORK PERMIT
1. Requirements
a) Immigration Form 3 to be completed and signed by the employer;
b) Letter from the employer confirming the duration of the employment, and making out a case why the subject is the most suitable person for the job as opposed to a Kenyan. Sometimes, the Immigration department may require proof that the position has been advertised in the local press and a statement from the employer that he cannot find a qualified Kenyan candidate. Moreover, the letter should demonstrate how the presence of the employee will be beneficial to Kenya (e.g. setting up the Organisation, expanding its operations, creating of employment for Kenyans) and must give details of the Kenyans who will be trained by the foreigner.
c) Form 22 which should be completed by the Employer;
d) copy of passport;
e) 2 passport size photos;
f) Detailed CV, signed by the employee and dated;
g) Original and copies of academic and professional certificates (the originals are returned after verification).

2. Process
The application is forwarded to the Immigration Department which will consider it in a meeting. If the application is approved, a Notification of Approval is issued which will state the documents to be availed to facilitate the issuance of the Work Permit. 

Normally, these are:-
a) a bankers’ cheque for the Government fees payable (KShs. 100,000/=) in favour of the Principal Immigration Officer; and
b) Security Bond from an insurance or bank (KShs. 100,000/=).

Once the Work Permit is issued or renewed, it is not released until the applicant attends to registration as an alien at the Immigration Department. The Work Permit is thereafter endorsed in the passport and an application made for a Re-Entry Pass which is endorsed on the passport. The application for Re-Entry Pass is issued as a matter of course at the counter of the Immigration Department and is valid up to a maximum of two (2) years. The fee payable is KShs. 200/= per year.
The whole process normally takes 4-6 weeks.

SPECIAL PASSES
For any non-Kenyan who may need to come into Kenya to work for short periods, he should obtain a Special Pass which will enable him to work in Kenya for a temporary period of 3 months (renewable twice). The requirements for a special pass are a copy of the certificate of registration of the employer and a letter from the employer indicating what the person will be doing in Kenya.
Cost
We usually assist foreign clients to apply for work permits/ entry permits at a fee.