Banking & Finance 2023 Comparisons

The most recent matters of note are the persistent inflationary pressures and the global economy. As of August 2023, the inflation rate is 8.68%, driven largely by the increase in fuel, food and non-fuel prices.

Consequently, the Monetary Policy Committee of the Central Bank of Kenya (CBK) resolved to tighten the Monetary Policy by raising the Central Bank Rate from 9.5% to 10.5%, in order to anchor inflation expectations. This has led most banks to increase their lending rates, falling between 13% and 20% pa.

This increase in interest rates comes at a time when there has been an increase in the number of non-performing loans (NPLs) from banks in the first quarter of this year; the CBK’s Quarterly Economic Review, January–March 2023, estimated NPLs to be between KES487.7 billion and KES540.84 billion at the end of the fourth quarter of 2022. This has forced most banks to increase their loan provisions to cushion against possible defaults.

The Ukraine war introduced uncertainty and challenges for Kenya's economy, influencing borrowing patterns and terms in the loan market as individuals and businesses navigate the economic fallout and seek financial stability amidst these disruptions.

First, over the years Kenya and Ukraine have established diplomatic relations and engaged in trade, with a focus on agricultural products, among other matters. As such, due to the disruption in global trade caused by the conflict and sanctions against Russia, Kenya's key exports – such as tea, coffee and flowers – have experienced reduced demand, leading to decreased revenue for local businesses. This economic downturn has made it challenging for businesses to access loans as they face declining cash flows and profitability. In addition, the rising cost of imported goods, particularly oil and fertiliser, due to supply chain disruptions from Russia and Ukraine has led to inflationary pressures in Kenya. As a result, borrowers may be seeking loans to cover increased costs of living and production, which could potentially strain the credit market.

Second, the Kenyan government's response to the impact on the cost of living, such as implementing fuel stabilisation programmes and subsidising fertiliser prices, has understandably contributed to an increase in public debt. According to a 2023 Public Finance Management Regulation Amendments report, as of June 2023, public debt was roughly KES9.4 trillion. The increased demand for government loans or bonds in the local credit market has crowded out private borrowers and affected interest rates.

The leading and most common high-yield market in Kenya is the bond market, which is characterised by lower funding costs for the issuer compared to the traditional lending market. The real estate investment trust (REIT) market is also active as an investment vehicle in the real estate sector. In the context of emerging markets like Kenya, the high-yield market has played a role in shaping financing terms and structures in several ways.

• Diversification of funding sources: market availability offers an alternative source of financing beyond the traditional bank loans or equity markets. This diversification is particularly useful in times of credit market volatility or when access to traditional sources of funding is limited.
• Risk distribution: the market is characterised by multiple players (creditors and investors respectively) as opposed to a single player, which is one of the key features of traditional lending. The multiplicity of players is beneficial as it allows for risk distribution in case of default.
• Impact on financing terms: to attract investors, issuers have had to replace traditional terms with more flexible ones – eg, those allowing the repayment and redemption of bonds, instead of having a single maturity date on which an investor is repaid the principal of the bonds.

Kenya’s loan market has seen steady growth in alternative credit providers since the introduction of mobile money in 2007, which led to the emergence of the Digital Lenders Association formed by a group of fintech companies in 2019 and subsequently the gazettement of the Digital Credit Provider Regulations in March 2022.

This emergence of alternative lending solutions has eased small and medium enterprises’ access to capital that would otherwise be unreachable from other financial institutions, due to the stricter vetting processes. These alternative lending institutions are more willing to provide unsecured credit to companies and instead tie them to their receivables. By factoring in the borrowers’ electronic receivables (if a company) or transaction history (if an individual), these alternative credit providers can anticipate customers’ propensity to repay and recognise any unusual or suspicious variance. This differs to the financing terms and structure of the traditional lenders, which factor in the borrower’s transaction records and collateral. Moreover, alternative lenders have relatively more flexible payment terms.

Kenya’s financial system has undergone major developments over the past few decades, to reflect the ever-changing investor and borrower needs and to align with global standards and the growing complexity of the payment system. Several notable banking and finance techniques have contributed to this evolution.

• Fintech innovations are increasingly offering digital solutions like online banking, mobile payments and digital lending.
• Alternative financing methods are gaining ground, with peer-to-peer (P2P) lending platforms connecting individual lenders and borrowers outside of traditional banks.
• Securitisation (converting loans into traceable securities) is diversifying risk and opening new investment avenues.
• Investors are increasingly valuing impact alongside returns, giving rise to impact investing and sustainable finance products.
• HoldCo structures are also increasingly preferred, as they can increase efficiency in access to and allocation of capital while enabling the equity markets to place appropriate value on a group’s business separate from the banking operations to be undertaken by its subsidiary(ies). One example is the KCB Group, which obtained all regulatory approvals to transfer its banking business to its wholly owned subsidiary, KCB Bank Kenya Limited.
• Preferred equity has evolved to cater to the capital-raising needs of borrowers, offering flexible structures with dividend preferences, risk mitigation and the attraction of diverse investors, including venture capitalists and private equity firms. It has become a valuable tool in the country's financial landscape, complementing traditional debt financing and common equity for companies seeking funding.

One recent development in this sector is the increase in financial institutions in the Kenyan market focusing on promoting sustainable development through ESG-aligned lending practices to micro and small businesses in emerging markets that may not have access to traditional banking services. One example is 4G Capital, which has a client base of over 370,000 and successfully launched the Series C fundraiser in 2022, raising USD18.5 million, and lent over USD360 million. Another is IFC, which in 2023 partnered with and advanced a USD65 million sustainability-linked loan to fintech platform M-KOPA Holdings Ltd, to enable M-KOPA to expand its financial services to underbanked consumers in Eastern Africa.

The key steps for banks and non-banks to be authorised to provide financing to a company in Kenya are as follows.

• Initial contact and name approval: begin by contacting the CBK for preliminary discussions on licensing requirements. Seek the CBK’s approval for using relevant terms like “bank” or “finance” in the proposed entity’s name.
• Incorporation: after name approval, incorporate the entity as a limited liability company through the Registrar of Companies.
• Application: apply to the CBK for the desired licence using the specific forms available on the CBK’s website. Such forms include “Application form for a Licence to Conduct the Business of an Institution”, “Fit and Proper” forms for directors and officers, and “Fit and Proper” forms for significant shareholders.
• Submission: provide the following along with the application:
1. certified copies of incorporation certificates;
2. Memorandum and Articles of Association;
3. financial statements for the past three years (if applicable);
4. personal statements of affairs for significant shareholders (if individuals);
5. a non-refundable fee of KES5,000;
6. sworn declarations signed by officers;
7. a feasibility study covering the group structure, an organisation chart, the CVs of significant shareholders and officers, preliminary expenses, financial projections for three years, interest rate sensitivity analysis, operational arrangements and the relevant area data;
8. sources and evidence of the availability of capital (currently, a minimum of KES1 billion is required);
9. signed and sworn Anti-Money Laundering Statements by each individual and shareholder; and
10. other required documents.
• Foreign institutions: for institutions incorporated outside Kenya, submit additional documents such as notarised copies of documents, an undertaking on capital maintenance, the contact details of designated liaisons, a letter of no objection from the home supervisory authority, and other relevant information.
• Approval in principle: after meeting the requirements, the CBK grants “approval in principle”.
• Preparation: with approval, prepare premises, systems, facilities and staff.
• Inspection: invite the CBK for an inspection once ready. If the inspection is satisfactory, pay the prescribed annual licence fees.
• Licence issuance: upon fee payment, the CBK places a notice in the Kenya Gazette and issues the licence.
• Start operations: with the licence, the institution can open its doors to the public.

Note that non-deposit taking microfinance institutions are not regulated by the CBK. Such institutions need only a letter of no objection from the CBK when registering as private limited companies.

Foreign lenders are generally not restricted from granting loans to Kenyan private and public borrowers. The parties need only enter into a legally binding agreement containing the terms agreeable to both, including the applicable law governing the agreement.

However, there are several considerations to be aware of when foreign lenders engage in lending to government entities in Kenya. For instance, they may need to adhere to laws such as the Public Finance Management Act and regulations, securing approvals from relevant authorities and abiding by procurement regulations. Foreign lenders may also need to be mindful of the country’s debt sustainability thresholds and parliamentary approval requirements for significant loans.

The granting of security or guarantees to foreign lenders is not restricted. In Kenya, assets of all types may be the subject of security, including future and contingent rights, cash in accounts and interests under contracts. The parties can execute a security agreement over any security of the borrower as agreed between the parties to the agreement.

There are no restrictions or controls on residents and non-residents regarding foreign currency exchange. As such, they may:

• invoice for their goods and services in Kenyan shillings or foreign currency;
• possess foreign currency;
• sell foreign currency to, and buy it from, authorised dealers; and
• export and import currency in accordance with the Anti-counterfeit Act.

There are no restrictions on a borrower’s use of loan proceeds from legal activities. Kenya’s legal framework on loans respects the contractual freedom of the parties to agree on the use of such earnings. However, the parties themselves may choose to include clauses that regulate the use of loan proceeds advanced to the borrower, particularly for specific loans such as construction loans. Some banks may require applicants to disclose the potential use of the loans subscribed to.

Kenya’s legal framework appreciates the common law concepts of agency and equity trust relationships. Parties are at liberty to appoint agents and create trusts to preserve their interests in loan transactions. For instance, a syndication agent, usually a bank, will be appointed where more than one lender is issuing a loan to the borrower in a loan agreement. This agent is responsible for communication between the parties, and for managing the loan funds for the borrower. A party may also delegate authority through a power of attorney for the donee to act on their behalf where their physical presence will be adversely delayed or is unnecessarily expensive.

A trustee might be appointed in escrow agreements to maintain the interests of the beneficiaries of the funds in the escrow account. The Land Act also allows the chargee to appoint a receiver where the borrower defaults. The receiver may act as both an agent and a trustee of the lender, depending on the nature of the lender’s instructions.

The main loan transfer mechanism in Kenya typically involves an assignment or transfer. When loans are transferred, the associated security package will also be transferred.

An assignment is subject to the terms of the loan agreement. The assignee assumes all the rights and obligations of the assignor, including the right to enforce the security in the event of default. The assignment will be made according to the instructions given in the assignment clause.

The transfer of the security package is closely tied to the assignment of the loan. The security package is governed by a security agreement between the borrower and lender. The transfer will be registered at the relevant registries – eg, the Companies Registry for charges over company assets, the Lands Registry for real property interests and the Collateral registry for movable assets.

A debt buy-back refers to the purchase by the borrower or a related party of its own debt from its lender(s), often at a discount. Effectively, the debtor’s obligations are reduced while the creditor receives a one-off payment.

The term “debt buy-back”, however, is not popularly known or used; instead, Kenyans use “early repayments” or “early redemption”. An early repayment refers to where any borrower clears its loan before its term. Knowing that they may miss out on some of the interest that would have accrued for the entire term of the loan, some lenders may choose to include an early repayment penalty in the loan instrument. This is purely contractual, with the law tending to leave the parties to their own devices.

Early redemption, on the other hand, is most commonly used in securities markets. The Land Act grants the chargor the right to redeem its securities at any time before the loan term, and it is illegal to deny the borrower the opportunity to exercise this right. The principle is also embedded in the bonds sector, so that some companies repay the bond amount together with accrued interest earlier than the agreed date. The Public Finance Management (National Government) Regulations, 2015 recognise the early redemption of treasury bonds from funds placed in a sinking fund. The law allows the National Treasury to accept discounts to effect early repayment, subject to limitations under the law.

“Certain Funds” Clauses

A “certain funds” clause requires a bidder making a takeover bid for a public entity to have sufficient funds to finish the takeover process; they guarantee “assurance” as to the financial capability of the acquirer. Notably, the Capital Markets (Takeovers and Mergers) Regulations (CMA Regulations) provide a standard global practice of these clauses. The regulations require the bidder to demonstrate their financial capacity, to ensure a successful takeover by paying all the consideration involved.

However, this “certain funds” requirement may be dealt with differently in instances of a pre-conditional offer (an offer is made if certain pre-conditions are met). Regulation 15 of the CMA Regulations provides that an offer that is conditional on a minimum percentage of shares being accepted (known as “minimum acceptance condition”) must specify a date. This date cannot be later than 30 days from the date the takeover offer is served to the shareholders, unless the Capital Markets Authority allows an extension in competitive situations or special circumstances. This specified date is crucial because it is the latest date by which the offeror can declare that the condition has been met, and the offer is no longer subject to that condition.

Short-Form or Long-Form Documentation

In accordance with the CMA Regulations, long-form documentation is commonly used. The Regulations impose a duty on the acquiring entity to disclose information such as its identity, the shareholding and prior agreements made.

Public Filing of Documentation

Documentation in a public acquisition finance transaction is publicly filed. The acquirer is obliged to announce its proposed offer by press notice, and to serve a notice of intention to the target company, the Nairobi Securities Exchange, the CMA and Monopolies and Prices Commission within 24 hours from the acquisition board resolution. In addition, the acquirer is under a continuous reporting obligation to make a cautionary announcement of any information that may lead to a material change in the price of shares, if at any time the necessary degree of confidentiality has been breached or cannot be maintained.

The Finance Amendment Act, 2023 has brought an array of changes to Kenya’s economic spectrum, in a bid to revitalise the economy by seeking to offer businesses breathing space and increase the tax net. This is in line with the government’s agenda to jump-start the economy, especially due to the damaging consequences of the COVID-19 pandemic, the Russia–Ukraine war and the existing huge public debts.

The changes in the Act have affected the imposition of income tax, VAT, excise tax and various fees and penalties, as well as general tax compliance requirements. A foreign entity seeking to invest in Kenya should be aware of the changes, including:

• the reduction of corporate income tax rate for a branch/permanent establishment (PE) from 37.5% to 30%;
• the introduction of branch/PE tax of 15% in addition to the income tax chargeable on the branch;
• the ability of foreigners to defer FX losses and claim them back within five years from the date of the loss;
• the payment of capital gains tax where a foreigner intends to transfer 20% of their shares in a company; and
• the domestication of inter-state agreements in a bid to bolster tax collection assistance.

Essentially, the legal documentation has changed to reflect what the Amendment Act has introduced.       

Usury refers to the act of lending money at an interest rate that is considered unreasonably high or higher than the rate permitted by the applicable law. Usury laws specifically target the practice of charging excessively high interest rates on a variety of loans by setting caps on the maximum amount of interest that can be levied.

There are currently no interest cap laws in Kenya, following its removal from the Banking Act (Section 33B) in 2019. However, pursuant to Section 36 of the Central Bank of Kenya Act, the CBK regulates the lowest interest rate banks may charge, which as of July 2023 stood at KES10.50.

Furthermore, in Islamic banking, Sharia restrains banks from attaching riba (interest or usury) on loans.

In Diplum Rule

This rule (which means “in double”) provides that interest stops running when unpaid interest equals the outstanding capital amount. As such, while the rule does not prevent the lender from earning interest on the principal more than the loan itself, the lender should never recover more interest than the principal amount owing. This rule is captured in Section 44A (3) of the Banking Act (Chapter 488 Laws of Kenya).

There are sector-specific rules and laws that regulate the disclosure of certain financial contracts, particularly those related to securities and investments, as follows.

• The Companies Act requires companies to comply with the prescribed financial accounting standards when making disclosures in their financial statements, including financial statements about employees such as the monthly average number of employed persons, wages and salaries, and costs incurred in respect of retirement and other benefits. Public companies are subject to more stringent disclosure requirements than private companies.
• The Capital Markets Act, CAP 485A and the Capital Markets (Securities) (Public Offers, Listing and Disclosures) Regulations, 2002 set out guidelines for the timely and accurate disclosure of information to the public, including details of the securities, financial performance and any material events that could influence an investor’s decisions.
• The Nairobi Securities Exchange (NSE) Listing Rules set the disclosure requirements for the listing of securities in the market segments.
• The REIT regulations set the disclosure requirements for REITs issuers seeking to list REIT securities.
• The Banking Act, CAP 488 requires banks to disclose their financial statements and other information to the CBK and other relevant authorities.
• Sections 59 to 66 of the Insurance Act require insurance companies to disclose all relevant information to the Insurance Regulatory Authority and to policyholders.
• The Capital Markets (Collective Investment Schemes) Regulations, 2001 outline disclosure requirements for collective investment schemes, including mutual funds and unit trusts.
• The Anti-Money Laundering Regulations require financial institutions to conduct due diligence and maintain records on their clients, including information about financial transactions.

Payments of principal, interest or other payments made to lenders are subject to withholding tax (WHT). The rate depends on whether the lender is a resident or non-resident.

When advancing loans to borrowers or taking security and guarantees from borrowers, the taxes, duties, charges or tax considerations that will be relevant for the lender to note will include:

• stamp duty, which will be applicable in transactions involving loan agreements, mortgages and guarantees, with rates determined by the transaction’s nature; and
• capital gains tax, which may arise during security or guarantee transactions involving property or asset transfers.

Other tax-related factors include:

• the thin capitalisation rules limiting the amount of interest expense that can be deducted for tax purposes if the debt-to-equity ratio of a company exceeds a certain threshold;
• transfer pricing regulations requiring transactions between related parties to be on arm’s length terms;
• foreign exchange controls that could impact the repatriation of loan-related funds in foreign currency; and
• treaty considerations, which may impact the tax rates on interest payments.

Tax concerns when foreign lenders are involved include the following:

• WHT: this is one of the main concerns when dealing with foreign lenders. Kenya imposes 15% WHT on interest payments made to foreign lenders, which impacts the effective yield for the foreign lender.
• Thin capitalisation rules: these rules are designed to prevent excessive interest deductions on loans from related parties or foreign lenders. In Kenya, a company is deemed to be thinly capitalised where the gross interest paid or payable by the company to related persons and third parties exceeds 30% of the company’s earnings before interest, taxes, depreciation and amortisation (EBITDA) in any financial year. If a company has a high level of debt in comparison to its equity, interest payments on the excessive debt might not be fully deductible for tax purposes.
• Transfer pricing: the Income Tax Act CAP 470 and the Transfer Pricing Rules, 2006 regulate the tax implications on, among others, loan agreements between related companies. Such implications impact the deductible interest expense.
• Permanent establishment: if a foreign lender has a physical presence or conducts certain activities in Kenya that meet the criteria of a “permanent establishment” under tax treaties or local laws, the lender could be subject to taxation in Kenya on the income attributable to that permanent establishment.

• Foreign exchange gains and losses: fluctuations in foreign exchange rates can impact the cost of servicing foreign-denominated loans. Exchange rate gains or losses could also have tax implications.

Mitigation strategies include the following.

• Tax treaty consideration: if there is a tax treaty between Kenya and the lender's country, it might specify a reduced withholding tax rate on interest payments. Ensure that the lender is eligible for any benefits under the treaty.
• Transfer pricing documentation: ensure that the terms of the loan are supported by proper transfer pricing documentation, demonstrating that they are consistent with arm's length principles.
• Thin capitalisation planning: evaluate the debt-to-equity ratio to avoid falling foul of any thin capitalisation rules. It might be beneficial to increase equity funding if necessary.
• Proper structuring: consider the overall business structure to mitigate risks related to permanent establishment and other potential tax liabilities.
• Foreign exchange risk management: implement strategies to manage foreign exchange risk, such as using appropriate hedging instruments.
• Professional advice: engage with tax professionals who have expertise in both Kenyan and international tax laws. They can help navigate the complexities and ensure compliance.

Assets Available as Collateral to Lenders

In Kenya, virtually all assets qualify as securities. Various lending institutions employ different thresholds for what is acceptable as collateral for the credit they offer. Broadly, the assets are separated into the following categories.

Real property

• Security form: legal charge.
• Formalities: as per Section 56 of the Land Registration Act (LRA), the charge instruments should be in a prescribed form.
• Perfection: payment of stamp duty and registration at the relevant registries. Registration automatically confers statutory compliance.
• Consequences: failure to register will render the charge unenforceable against liquidators, administrators or other secured creditors of the security provider. However, pursuant to Section 36 of the LRA, failure to register the charge instrument does not prevent said instrument from operating as a contract between the parties.
• Timing and costs: Section 36(4) of the LRA implies that the charge instrument should be presented for registration within three months from that date of the instrument, otherwise an additional fee, equal to the registration fee, shall accrue. Costs are applicable in each of the following five stages of the registration process.

1. Search: search at the Companies Registry takes one to three working days, depending on the availability of the file, and the maximum cost is KES3,000. Search at the Land Registry takes five days, depending on the availability of the file, and the maximum cost is approximately KES2,500.
2. Completion documents: facilitating registration takes approximately five working days, involving external lawyers and potential extra expenses based on the transaction value and fee scales. Essential completion documents include the Rates Clearance certificate (not mandatory) issued at a fee that depends on the county in which the land is located; the land rent clearance certificate (not mandatory); consent of the commissioner of Lands; and Land Control Board approval.
3. Stamp duty: the duty is 0.1% of the financed amount, and the stamping process takes about two days.
4. Registration: takes approximately seven working days and costs approximately KES8,500 at the Lands Registry and according to the 9th Schedule to the Companies Act (General) Regulations, 2015 at the Companies Registry.

Movable property

• Security form: chattels mortgage, credit purchase transaction, credit sale agreement, floating and fixed charge, pledge, trust indenture, trust receipt, financial lease and any other transaction that secured payment including an outright transfer of a receivable.
• Security right: security agreement, provided the grantor has the rights in the asset encumbered or the power to encumber it. The agreement may also provide for the creation of a security right in a future asset, but that security right is created only at the time when the grantor acquires rights in it or the power to encumber it.
• Formalities: the security agreement must be in writing and signed by the grantor, identify the parties, adequately describe the collateral by its specific listing, category, type and quantity, and, except in agreed cases of the outright transfer of a receivable, describe the secured obligation.
• Perfection: filing an initial notice with the Registry. One notice is sufficient for security rights granted by one grantor under multiple security agreements.

Kenyan law recognises the creation of a floating charge over all present and future assets of a company. Applicable laws include the Companies Act 2015, the Movable Property Security Rights Act 2017 (MPSRA) and the Insolvency Act, No 18 of 2015.

In Kenya, under Section 173 of the Companies Act, entities can give downstream, upstream and cross-stream guarantees. Except for corporate approvals, no statutory approvals are required for a company to give a guarantee or provide security in connection with a loan or quasi-loan made to an associated body corporate.

However, such guarantees must still meet the commercial interests of the guarantor company. Associated limitations in respect of the guarantees include proof of benefits to each individual company granting a guarantee. In practice, board minutes that specifically state the commercial benefit to the grantor company will suffice.

The prohibition on a private company providing financial assistance for the purchase of its shares was abolished by the Companies Act when it came into force in 2015. As such, there are no rules prohibiting the target in a private acquisition transaction from giving financial assistance to the acquirer.

However, public companies are prohibited from giving financial assistance primarily for the acquisition of their own shares: Section 442 of the Companies Act, 2015 restricts the provision of assistance for the acquisition of shares in a public company, while Section 443 restricts the provision of assistance by a public company for the acquisition of shares in its private holding company. Section 444 treats such acts as offences.

Other restrictions and consents include the following:

• the articles of association may restrict a company from borrowing certain amounts;
• consent from the National Lands Commission is required if the proprietor has leased land from the government and intends to use it as security;
• the lessor’s consent is required where land is leased from a lessor;
• spousal consent is required where the asset is matrimonial and an immovable property; and
• consent from the management company is required where there is separate ownership of units.

Section 85 of the Land Act provides that an encumbrance on immovable property is released through a discharge, including re-conveyance and re-assignment of the charge or any other instrument used in extinguishing interests in land conferred by charges.

With respect to debts registered with the Companies Registry, security release is occasioned through a “memorandum of satisfaction” and “memorandum of release”. The former is filed to show evidence of payment of the secured sum in whole or partly, while the latter is recorded when the encumbered property has been released from the charge.

Finally, for securities registered at the Collateral Registry, under Section 57 of the MPSRA a cancellation notice is registered when the secured interest has terminated.

In Kenya, the priority of competing security interests is primarily governed by the Companies Act, the Insolvency Act, the Land Act and the MPSRA. The priority rules dictate the order in which creditors are paid in the event of a bankruptcy, insolvency or liquidation. The key rules governing the priority of competing security interests are as follows.

• Secured v unsecured: secured creditors usually have a higher priority than unsecured creditors.
• Fixed v floating charges: fixed charges take priority over floating charges. Fixed charges are specific to particular assets and create a direct claim over them, while floating charges cover a company’s assets as a whole, and their value “floats” until crystallisation.
• Registration: the date of registration of charges is key in determining the priority of charges.
• Pari passu principle: two or more creditors on the same subject may elect to have their security rights treated equally, regardless of the general rules on priority.
• Subordination: methods of subordination vary depending on the registering regime. For instance, where land is a security, Section 82 of the Land Act provides for the “doctrine of tacking,” which paves the way for a first charge to have a further advance charge made to the same chargor to rank higher than a second charge. This method of subordination is only exercisable if the first chargee reserved the right to tack in the charge instrument. Where movable assets are security, Section 51 of the MPSRA allows a creditor who is devoid of temporal restrictions to vary their rank in the priority order in favour of any existing or future claimant.
• Contractual variation: priority can also be contractually varied, usually through either a subordination agreement or an intercreditor agreement, and such provisions will survive the insolvency of the borrower.

In the context of lending and secured transactions, a “priming lien” typically refers to a lien that takes priority over existing liens or security interests. This means that the holder of the priming lien has a higher ranking claim in case of default, potentially pushing existing creditors down the priority ladder. Priming liens can be created by operation of law (the Companies Act and the Insolvency Act) or by agreement between the parties.

Priming Liens by Operation of Law

• Purchase Money Security Interest (PMSI): a PMSI arises when a lender provides financing to a debtor specifically for the purpose of acquiring certain collateral. A PMSI can prime existing security interests, giving the lender a superior claim to the collateral. This is often seen in the context of financing the purchase of goods like equipment or inventory.
• Possession and control: in some cases, taking physical possession of collateral such as title documents and logbooks as liens can give a lender a priming position. Upon default, the lender is at liberty to dispose of such liens.

Structuring Around Priming Liens in Kenya

• Collateral prioritisation: lenders can structure their loans to ensure that their security interest covers specific collateral, allowing them to take advantage of PMSI provisions. By providing financing expressly for the purchase of certain assets, the lender can establish a PMSI, which may prime other security interests.
• Agreement with existing creditors: if a lender intends to prime existing liens, they can negotiate with the current creditors to obtain their consent for the new security interest. This might involve offering some form of compensation or inducement to the existing creditors to agree to the arrangement.
• Notification and registration: in Kenya, secured transactions usually involve registration with a registry. Properly registering a security interest can help establish the priority of the lien.
• Contractual agreements: parties can structure loan agreements to define the order of repayment in case of default, including which liens will have priority. This can be a negotiated arrangement between the lender and borrower, as well as any other creditors involved.

Typically, transaction documents in each secured lending transaction set out the basis upon which the secured party can enforce its security. Each security agreement must therefore specify the events that are to constitute events of default, primarily where a borrower fails to pay the secured loan amount or perform a secured obligation.

For immovable property, a power of sale application of the collateral will arise when an event of default occurs. However, this power is not exercisable unless the secured party has served a default notice on the debtor, specifying the particular event of default and what to do to rectify it, within two months for a default on obligations and three months for a default on payment. The security agreement can (but need not) provide that the power of sale or application is only exercised on the authority of an order of the Kenyan courts with sufficient jurisdiction.

For movable assets, a party may enforce its rights under the MPSRA, the security agreement or any other applicable law. Section 82 of the MPSRA provides that the law applicable to the enforcement of a security right in a tangible asset is the law of the country where the relevant act of enforcement takes place, while the enforcement of a security right in an intangible asset is the law applicable to the priority of the security right.

Methods, Procedures, Restrictions and Concerns

Enforcement methods differ depending on the type of security.

Charges

The Land Act and the LRA govern the enforcement of rights over immovable property, while the MPSRA governs movable property through charges after a default. The chargee may:

• sue for the amount due or owing (if applicable);
• appoint a receiver of the income of the real property/collateral;
• lease the land/immovable asset (if applicable);
• take possession of the land/collateral; or
• sell the land/collateral by private contract or public auction.

Enforcement through the sale of immovable property is subject to further requirements that must be met. First, the chargee must give the chargor 40 days’ notice where it elects to sell the land by private contract. Where it elects to sell the land by public auction, the auctioneer is also required to give the chargor 45 days’ notice and to publicly advertise the sale. In both options, the chargee must obtain a “forced sale valuation” of the land where it has a duty to obtain the best price reasonably obtainable at the time of sale.

Debentures

The terms of the debenture instrument will normally set out the enforcement procedure, including the appointment of a receiver and/or manager to undertake the procedure.

Guarantees

A claim under a guarantee can be made by providing a demand notice in accordance with the Deed of Guarantee. If the guarantor fails to make the payment, the guaranteed party can file a suit or enforce the guarantee through a summary procedure.

Charge over shares

The chargee can use a power of attorney and a share transfer form (both granted to it by the grantor after perfection) to transfer the shares to itself. The chargee must thereafter cause the share transfer to be stamped and notify the Companies Registrar thereof. The company secretary of the transferee company must then register the chargee in the company’s register of members.

There are restrictions on who can enforce a security interest over assets located in or governed by the laws of Kenya. However, the law will not stop the parties setting out any contractual restrictions or limitations in a security agreement that is applicable in the enforcement of security rights.

Generally, parties to a contract retain the autonomy to choose the forum or jurisdiction that will govern the conduct of their contractual obligations and disputes that may arise out of that contractual relationship. This is in tandem with the principle of party autonomy. Such an arrangement is especially common with commercial contracts involving cross-border contracting parties.

However, this foreign governing law clause in contracts is not conclusive if its recognition would result in a breach of domestic public policy or an evasion of mandatory provisions of Kenyan law. There must be a real connection between the choice of foreign law and the contract to which it should apply.

Enforcement of a Foreign Judgment

A foreign judgment can be enforced in Kenya without a retrial on the merits of the case only if it complies with the conditions set out in the Foreign Judgments (Reciprocal Enforcement) Act (Cap 43). The Act only extends such right to “designated countries”: Australia, Malawi, Seychelles, Tanzania, Uganda, Zambia, the UK and Rwanda.

However, in the absence of a reciprocal arrangement, a foreign judgment is enforceable in Kenya as a claim in common law.

Enforcement of a Foreign Arbitral Award

In contrast with Cap 43, the Arbitration Act, 1995contemplates a much wider scope of enforcement. Section 36 stipulates that an international arbitral award will be recognised as binding and will be enforced in accordance with the provisions of the New York Convention or any other arbitration-related convention of which Kenya is a signatory. However, the court may refuse the enforcement of an arbitral award if the subject matter of the dispute is not capable of settlement by arbitration under the law of Kenya, or if the recognition or enforcement of the arbitral award would be contrary to the public policy of Kenya.

Presuming that the loan or security agreement meets all the formal and legal requirements under Kenyan law, there are no special matters that may impact a foreign lender’s ability to enforce its rights.

The commencement of insolvency proceedings in Kenya can have a significant impact on a lender’s rights to enforce its loan, security or guarantee. These impacts are governed by the Insolvency Act and regulations. Key considerations include the following.

• Automatic stay or moratorium: when an insolvency process is initiated, an automatic stay or moratorium comes into effect, restricting lenders from taking any enforcement actions against the debtor. However, lenders holding security interests such as charges and mortgages may have the right to realise those assets to recover their debt, with the approval of the court or co-ordination with the insolvency practitioner.
• Priority of claims: the lenders shall be repaid in a specific order of priority. Typically, secured creditors holding a first fixed charge and preferential creditors will rank higher and their debts will be settled before creditors with floating charges. Unsecured creditors rank last, and may or may not recover their debts.
• Guarantees: if there is a guarantee present, the lenders may seek to enforce their rights against the guarantor. However, the guarantor’s ability to fulfil their obligations will be contingent on their financing standing, and enforcement will also be subject to legal procedures.

Creditors are paid in the following order in insolvency proceedings in Kenya.

• Secured creditors have the highest priority and are paid from the proceeds of the sale of the specific assets they hold as security.
• The costs associated with the administration of the insolvency proceedings are paid next. These are referred to as first priority claims under the 2nd Schedule to the Insolvency Act.
• Preferential creditors: certain creditors are given preferential status and are paid before unsecured creditors. Pursuant to the 2nd Schedule to the Insolvency Act, these include employee claims for unpaid wages and salaries (capped at four months), as well as statutory deductions like taxes and contributions to employee pension funds.
• Unsecured creditors rank second to last in priority. The Insolvency Act requires that 20% of the net proceeds realised from the sale of assets subject to a floating charge is set aside exclusively for the benefit of unsecured creditors (known as the “prescribed part”), in addition to the amount that remains after settling the high-ranking creditors.
• Shareholders rank last, and are only entitled to a share of the remaining assets after all higher ranking creditors have been paid.

The length and degree of recoveries can only be determined on a case-by-case basis, depending on several factors, including the party instituting the insolvency claim, the determination of the ascertained assets and liabilities of the insolvent undertaking, and the verification of the creditors and other persons with valid and recoverable claims under the proceedings.

In addition, where public interest issues arise, the proceedings may be protracted as the courts determine the applications and give a way forward.

The Insolvency Act, 2015 allows for the following alternatives to insolvency for debtors in distress.

Administration

An administrator may be appointed by an administration order of the court, the holder of a floating charge or the company or its directors. The administrator would run the affairs of the company as a going concern and, where possible, salvage the business of the company and pay the company’s debt back to the greatest degree possible.

Company Voluntary Arrangement/Debt Restructuring

Part IX of the Insolvency Act allows the directors of a company to “make a proposal to the company and its creditors for a voluntary arrangement under which the company enters into a composition in satisfaction of its debts or a scheme for arranging its financial affairs”.

The debtor company may enter into such an agreement for the repayment of its debts. This restructuring may be in the form of a debt-to-equity swap (as was the case for Kenya Airways), a debt-to-asset restructuring, recapitalisation or the transfer of good assets or business to a new entity.

An approved proposal is binding upon the company and the creditors as a voluntary arrangement but may be challenged where an eligible person challenges the arrangement on the basis that:

• the arrangement detrimentally affects the interests of a creditor, member or contributory of the company; or
• a material irregularity has occurred at or in relation to either of the meetings of the company or of the creditors, as convened under Part IX of the Insolvency Act.

The risk areas for lenders if the borrower, security provider or guarantor becomes insolvent are as follows.

• Priority of claims: in the event of insolvency, the creditors will be differentiated on their levels of priority when it comes to repayment. Secured creditors will have a higher priority than unsecured creditors. The lenders must therefore assess their position in the priority hierarchy to determine their likelihood of recovering the debt.
• Liquidation delays: the insolvency process can be time consuming and subject to delays. This may limit the lenders’ access to funds tied up in the insolvency proceedings, possibly impeding their lending strength.
• Inadequate collateral value: the collateral provided by the borrower or security provider may not hold its expected value, leading the lender to not recover the full loan amount. The March 2023 High Court decision in the case of Home Afrika Limited v Ecobank Kenya Limited (Insolvency Cause No E010 of 2021) affirmed that if the asset provided as collateral or security fails to fetch a sufficient amount to settle the debt, a lender is barred from pursuing the guarantors.
• Prolonged search for a buyer: for instance, due to a less favourable property market in Kenya, it may take, on average, one year to successfully sell a property. This potentially delays the recovery of funds and impacts the lender’s ability to mitigate losses promptly.

Project finance has developed as a crucial funding source for the development of critical infrastructure projects and for supporting economic growth in Kenya. Industries that are or are projected to be the most active users of this form of financing include transport and infrastructure (including energy), real estate and urban development, water and sanitation, industrial parks and manufacturing, and ICT, including intelligent management systems.

The Public Private Partnerships Act of 2021 is the primary legislation governing public-private partnerships in Kenya. There are a number of significant PPPs, with some still in the pipeline and others attaining financial closure, including:

• the ongoing tolling of the Nairobi-Nakuru-Mau Summit Road;
• the proposed construction of 500km power transmission lines under the IFPPP-AF Model;
• the proposed development of a Cancer Care Centre at the Meru Level 5 Hospital in Meru County, under the IFPPP-AF Model; and
• the ongoing construction of a 300-bed private hospital at the Kenyatta National Hospital.

With respect to project documents in the private sector, the parties are at liberty to choose any governing law and dispute resolution mechanism. The choice usually depends on the preferences of the parties, the perceived neutrality and efficiency of the chosen dispute resolution mechanism and any legal requirements or restrictions imposed. For instance, should parties agree to resolve their dispute in another contracting state and seek to enforce the decision, they will be subject to Kenyan laws on the recognition and enforcement of foreign judgments and arbitral awards.

However, project documents entered into by state organs or public entities have certain restrictions and/or qualifications. For instance, Section 71 of the Public Private Procurement Act, 2021 states that public-private partnership project agreements shall be subject to the provisions of the laws of Kenya, and that any provision in a project agreement to the contrary shall be void. Parties may agree in the project agreement to resolve any disputes through arbitration or any other non-judicial means.

Furthermore, for projects under the Public Procurement and Asset Disposal Act, 2015 (PPADA), disputes are referred to the Public Procurement Administrative Board. However, international agreements and treaties can be applied as the governing law. Where the PPADA conflicts with the country’s obligations arising from a treaty, agreement or other convention ratified by the country, that treaty or agreement shall prevail.

Land Ownership

Article 65 of the Constitution of Kenya, 2010 stipulates that non-citizens can only obtain a leasehold title over land in Kenya for a maximum of 99 years. A body corporate qualifies as a citizen only if it is entirely owned by citizens. In addition, the Land Control Act restricts non-citizens from owning agricultural land unless it is a leasehold.

Water Rights

The Water Act provides that every water resource is vested in the State and held in trust for the people of Kenya. Like citizens, foreign entities are required to obtain the appropriate permit or licence for the use of water resources, and to comply with the Water Act when using these water resources.

Remedial Rights

With respect to remedial rights over property, there is no distinction between foreign and local lenders. As such, foreign lenders can hold liens on property as part of loan agreements. However, exercising the remedial rights will require compliance with local laws and regulations, including the restrictions on the ownership of land by foreigners in Kenya.

When structuring a project finance deal in Kenya, several critical considerations must be addressed to ensure a successful and legally compliant arrangement, including:

• the choice of the amount of capital required for the project;
• the appointment of advisers (financial, legal, technical, insurance, environmental and market risk) to the project;
• the dividend policy;
• the respective roles in the project of each sponsor where there are more than one;
• management of the project vehicle; and
• the sale of shares and pre-emption rights.

Furthermore, the choice of the appropriate legal structure of the project company, whether a limited liability company or a limited liability partnership (LLP), is crucial for effective risk management and liability limitation. This decision intersects with Kenyan laws like the Companies Act and the LLP Act, which provide guidelines for establishing, managing and operating companies and LLPs, respectively. Other sector-specific laws shall apply, depending on the project sector.

Kenya’s investment environment is fully liberalised. Foreign investors can invest up to 100% ownership, except in securities, banking, insurance, power and lighting, telecommunications and any other sectors identified by the government as posing a security risk to the country. Therefore, understanding sector-specific regulations is crucial in navigating any restrictions.

Finally, Kenya has ratified 21 bilateral investment treaties, nine treaties with investment provisions and 20 investment-related instruments.

Project financings in Kenya typically rely on a combination of financing sources and structures to secure the necessary funds for infrastructure and development projects. The choice of the financing will depend on factors such as the nature of the project, the risk profile, market conditions and the parties involved.

Traditionally, bank financing remains a prevalent choice, with commercial banks offering loans and credit facilities secured by project assets and cash flows. Export credit agency financings provide guarantees and loans (pre-shipment/pre-export finance) that facilitate local companies’ international exports. For example, in May 2023, the Kenyan government and the African Export-Import Bank entered into a three-year programme for the latter’s provision of up to USD3 billion in support of “viable trade and trade-related investment” in Kenya’s public and private sectors.

Project bonds emerge as a versatile option, allowing projects to tap into capital markets for funding. These bonds are backed by the project's expected cash flows or assets, often attracting a broader investor base due to their longer tenures.

In addition to conventional financing, alternative sources cater to specific needs. Streaming or royalty financing involves selling future revenue streams for an upfront payment, primarily seen in resource sectors. Private equity funding allows firms to invest directly, infusing capital while often taking active managerial roles. Commodity trader financing, which is prevalent in resource-focused projects, exchanges upfront funding for a share of the project's future commodity production.

The following issues and considerations are associated with natural resources projects in Kenya.

• Regulatory framework and compliance: understanding and adhering to the laws and bodies regulating aspects such as resource extraction, environmental impact assessments and project approvals is essential for the success of the projects.
• Environmental impact assessments: resource projects must undergo thorough environmental impact assessments to minimise ecological harm.
• Community engagement: engaging with local communities and obtaining their consent is essential to avoid conflicts and ensure social acceptance.
• Export limitations: an export permit from the Ministry of Petroleum and Mining must be obtained before undertaking mineral trade. The permit details the exporter (licensed dealer or miner), the value, weight, source and composition of the mineral, and the country and address of destination. For precious metals such as gold and precious stone such as gemstones, which are of high value but low volume, export permits are only issued by the Ministry after a mineral consignment has been seen, tested and, valued by a panel of officers, and the permit fees and royalties are paid to the government. The export of petroleum or crude products requires a licence from the Energy and Petroleum Regulatory Authority.
• Benefit and value addition: although not a statutory requirement, Kenya has expressed a growing interest in ensuring that more of the value from its natural resources is added within the country before export.

Environmental Regulations

The Constitution of Kenya, 2010

This is the blueprint law regulating all project sectors. The Constitution guarantees universal access to the highest attainable standards of health under the Bill of Rights (Chapter 4). The role is allocated to the government of Kenya through the Ministry of Health.

The Environment Management and Co-ordination Act, 1999

This law sets the framework for environmental management in Kenya. The National Environment Management Authority (NEMA) is the regulatory body charged with the overall supervision and co-ordination of all matters relating to the environment, as well as the implementation of all policies relating to the environment. NEMA is responsible for dealing with environment impact assessment applications and approvals.

Health and Safety Regulations

Public Health Act, CAP 242

This Act sets the framework that secures and maintains the health of the public. The main regulatory body is the Minister of Health. The established Central Board of Health under the Act functions to advise the Minister upon all matters affecting the public health.

Occupational Safety and Health Act, No 15 of 2007 (OSHA)

This Act provides for the safety, health and welfare of workers and all persons lawfully present at workplaces, and establishes the National Council for Occupational Safety and Health. The overseeing regulator is the Director of Occupational Safety and Health Services.

Community Consultation Laws

The Constitution of Kenya, 2010

Public participation is one of the national values and principles of governance enshrined in the Constitution.

The Land Act, 2012

This Act outlines the requirements for community engagement and consultation when land being acquired or used for development will affect communities.

The Water Act

The abstracting of water for dams or other such use of water from a water resource requires a permit. Such permit is subject to public consultation and, where applicable, an environmental impact assessment.

Environmental impact assessment guidelines

The purpose of an environmental impact assessment is to guide project proponents and the public at large on effective planning that takes into account negative impacts of the project and alternative plans for the purpose of making prudent decisions.