Securitisation transactions in Kenya were initially governed by the Capital Markets (Asset Backed Securities) Regulations, 2007, which were issued under the Capital Markets Act, Chapter 485A of the laws of Kenya (CMA Act).
In 2013, the CMA Act was amended to introduce substantive provisions on asset-backed securities into the Act. The new provisions in the Act unfortunately conflicted with those of the 2007 Regulations. As a result of these conflicts, in February 2017, the Capital Markets Authority (the CMA), published a Policy Guidance Note on Issue of Asset Backed Securities (the Guidance Note) to assist applicants seeking to structure or issue asset-backed securities pending gazettement of new regulations and any additional amendments to the Act. However, the Guidance Note is not law and it expressly states that it does not bind the CMA in relation to securitisation transactions in Kenya. Subsequently, in June 2017, the 2007 Regulations were revoked.
Other than the CMA Act and the Guidance Note, depending on the structure of and the parties involved in the securitisation transaction, the following laws may apply to a securitisation transaction: the Insolvency Act, 2015; the Companies Act, 2015; the Trustee Act and principles of equity applicable to trusts; the Stamp Duty Act; and the Value Added Tax Act.
At the time of writing this article, to the best of our knowledge, Kenya has never had a securitisation transaction. Consequently, while there is an existing legal framework under the CMA Act for this type of structured finance transaction, the laws are untested and we do not have the benefit of experience in the Kenyan market when considering securitisation transactions.
The CMA Act requires that there must be a "true sale" of the financial assets from the originator to the special purpose entity (the SPE or issuer) or an origination of assets not previously owned by the originator directly into the SPE. The Act goes on to provide, however, that failure to achieve a true sale shall not invalidate the sale, transfer or assignment, the issue or offer of asset-backed securities or otherwise adversely affect the rights of the investors in asset-backed securities.
However, in considering this issue, the Guidance Note states that failure to achieve a true sale may invalidate the transaction, leaving investors without recourse to the assets subject to the securitisation or subject to claims of third parties to the assets. Therefore, a true sale is necessary to insulate the assets from the financial risks of the originator, including any claw-back provisions under insolvency laws as discussed below.
True Sale v Secured Loan
The Guidance Note provides that a true sale is characterised by the following.
In a secured loan transaction on the other hand, there is no transfer of title to the SPE and the assets remain the assets of the originator, albeit subject to an encumbrance. The Guidance Note explicitly states that an asset-backed securitisation is not a loan but must constitute a true sale.
Once there is a true sale of the assets, the SPE will become the legal proprietor of the assets. Upon receivership, winding-up administration or liquidation of the originator, subject to any review by the court of antecedent transactions, the transferred assets will not form part of the assets available for distribution to the originator’s creditors and shareholders.
In a secured loan transaction, property in the assets does not pass to the SPE but an encumbrance is created over these assets by the SPE. In the event of liquidation of the originator, the SPE would, subject to insolvency laws, have to enforce its security in order to recover sums owed to it.
Opinion of Counsel
The CMA requires that a legal opinion be issued in securitisation transactions. In the legal opinion, with respect to bankruptcy remoteness, counsel should give details of the legal nature of the sale, transfer or assignment of the assets to the SPE and issue an opinion on whether the sale constitutes a true sale which complies with the requirements of the CMA Act and the Guidance Note.
Counsel is also required to address in its opinion whether the sale could potentially be challenged by creditors or shareholders of the originator and the validity of any charge given over the assets of the SPE to the security trustee. Additionally, the opinion should address the potential (if any) of third-party claims against the assets and the implications of bankruptcy or insolvency of a seller or the originator, a servicer, the securitisation trustee or note trustee.
Other Relevant Aspects of Insolvency Law
Under Kenyan insolvency laws, when a company has entered into a formal insolvency process, certain transactions that were entered into by the company before insolvency may be challenged under provisions in the Insolvency Act, 2015. The reviewable transactions are as follows.
Transactions at an undervalue (Section 682 of the Insolvency Act)
In order to successfully challenge such a transaction, it is necessary to show that the originator transferred an asset to the SPE for no consideration, or for significantly less consideration than the assets’ true value and that the originator was insolvent at the time of the transaction or became insolvent as a result of the transaction. This provision applies to any transaction that was entered into two years before the onset of insolvency.
However, the court will, not set aside a transaction that was made in good faith, for the purpose of carrying on business and there are reasonable grounds to believe the transaction was for the benefit of the company.
Preference trading (Section 683 of the Insolvency Act): in order to successfully challenge such a transaction, it is necessary to prove that the transaction put a creditor of the originator in a better position than it would otherwise have been in on the originator's liquidation. There is a rebuttable presumption in law that the originator was influenced by a desire to prefer the creditor. This intention is presumed where the transaction was with a connected person (unless the connection was merely that of employment).
For this claim to be successful, it must be proved that the company was insolvent at time of the transaction or became insolvent as a result of the transaction. This provision applies to any transaction that was entered into in the two-year period before onset of insolvency in the event of a connected person (other than an employee), or in the case of preference that is not a transaction entered into at an undervalue and is not so given – at a time during the six months immediately preceding the onset of insolvency.
Extortionate credit transaction (Section 686 of the Insolvency Act)
In order to challenge such a transaction successfully, one must show that the terms of the credit transaction either require the originator to make grossly exorbitant payments or otherwise grossly contravene the ordinary principles of fair dealing. There is a rebuttable presumption of law that such a transaction is extortionate. This section applies to any transaction providing credit to the originator made in the three years before the administration or liquidation.
Voidable floating charges (Section 687 of the Insolvency Act)
If the true sale of the financial assets from the originator to the SPE is re-characterised as a secured loan, there is a risk that such transaction will create a floating charge over the assets of the originator. In such case, a floating charge which was created in the 12 months before the onset of insolvency could be held to be invalid by a court. The liquidator must show that the company was insolvent at the time of granting the floating charge or became insolvent as a result of the transaction in which the floating charge is granted. If the court voids such floating charge, the issuer will become an unsecured creditor of the originator.
Rescission of contracts by court (Section 483 of the Insolvency Act)
Any person who is, as against the liquidator, entitled to the benefit or subject to the burden of a contract made with the originator, may make an application for an order rescinding the contract on such terms as to payment by or to either party of damages for the non-performance of the contract, or otherwise, as the court considers appropriate.
Under Kenyan law, in order to undertake an asset-backed securitisation transaction, the originator must transfer the financial assets through a true sale to an SPE. The SPE may either be a limited liability company (limited by shares or guarantee) or a common law trust.
Characteristics of the SPE are dependent on the form of SPE used as follows.
Company Limited by Shares
An SPE that is a company limited by shares must:
Companies Limited by Guarantee
Companies limited by guarantee have the following additional requirements that apply in addition to the requirements set out above with respect to companies limited by shares:
Common Law Trust
Where the SPE is a common law trust, an unincorporated trust must be used. In these instances, an originator will declare a trust and vest ownership in the assets with a corporate trustee.
The issuer in this case shall be the corporate trustee acting in its own capacity and not the trust, because the unincorporated trust is not a legal person.
Under Kenyan law, companies have a separate and distinct personality. Consequently, it is unlikely that insolvency of the originator or parent or an affiliate would endanger the bankruptcy remoteness of the SPE subject to the matters discussed above in relation to claw-back on insolvency.
For a trust issuer, the manner of declaring the trust and vesting the assets in the trust described above will protect against any risks consolidation in any insolvency proceeding of the originator.
Under the Companies Act, companies are required to file returns with the Registrar of Companies annually and to notify the Registrar of any changes in respect of the Company.
Additionally, companies are required to pay taxes such as corporate tax, value added tax (VAT), among others. Please see 2.3 Taxes on Transfers Crossing Borders.
For trust SPEs, the assets of a securitisation trust shall not be included in the assets of the corporate trustee in the event that the trustee is declared insolvent, wound up, placed under administration or dissolved.
As explained in 1.1 Insolvency Laws, perfection requirements to ensure a transfer of financial assets in a true sale depend on the type of the asset in question.
Where the assets to be transferred are receivables by way of security, the Movable Property Security Rights Act No 13 of 2017 requires that notification of the assignment must be given in order to perfect the assignment of receivables, failing which the debt may be discharged by paying in accordance with the original contract. Consequently, until the debtors of the originator are given notice to make payment directly to the SPE, they may still discharge their debt by paying the originator directly.
For a transfer of real property/land, there must be payment of stamp duty and capital gains tax (if applicable). Additionally, there must be registration of the transfer against the title document of the property in order to perfect the transfer. For other assets, the specific requirements of perfection applicable to them must be met. For a secured loan, the document must be duly executed by the relevant parties, stamped with stamp duty (usually 0.1% of the secured amount) and registered at the relevant registries within specified timelines. For companies, such registration at the Companies Registry must be done within 30 days from the date of the security document – failure to do so necessitates obtaining a court order to allow for extension of the deadline for registration.
A true sale results in the issuer owning the financial assets legally and equitably, with additional safeguards as to bankruptcy remoteness as discussed above.
With the exception of the forms of SPE to be used and the manner of undertaking a true sale discussed above, the CMA Act and the Guidance Note do not make provision for other means of constructing a bankruptcy remote transaction isolating the financial aspects to be financed from the insolvency risk of the originator/transferor.
The potential taxes that may arise as a result of transfers from the originator or SPE to the transferee include the following.
As stated above, Kenyan law has provided specific exemptions for asset-backed security transactions.
Where specific exemptions do not apply, it would be advisable for practitioners to aim to achieve tax neutrality by ensuring that the whole transaction does not lead to any unforeseen tax liabilities or the increase of tax liabilities that would not have occurred if the securitisation had not taken place.
It is important to ascertain in advance the tax implications that may arise so that the originator may consider the tax liabilities as acceptable costs on their end. Therefore, any tax input into the structure and any tax waivers (if applicable) from the Kenya Revenue Authority should be obtained in the earliest stage of the process.
The income of the SPE is taxed depending on how it has been registered and/or incorporated. Therefore, if the SPV has been incorporated as a company, then it will be subjected to corporate tax. The current applicable corporate tax rate is 30% for resident companies. The income to be taxed will be based on any gains or profits made as a result of the sale or transfer of the assets after deducting allowable expenses.
The Income Tax Act, however, exempts interest earned on asset-backed securities issued by a company or trust issuer under the CMA Act from tax.
For practitioners to avoid such taxes, an SPE should be structured to avoid entity-level taxation.
Withholding tax is chargeable on the interest income and dividends. The rate differs depending on whether payment is to a resident or non-resident. The rate to be paid may be reduced if Kenya has a double tax treaty with the transferee’s company. Countries that have a double tax treaty with Kenya include Canada, India, South Korea, UK, Qatar, South Africa, South Korea, Sweden, UAE, Norway, Iran, Germany, France, Denmark and Zambia.
All the relevant taxes that relate to asset-backed securities have been dealt with in sections 2.1 Taxes and Tax Avoidance, 2.2 Taxes on SPEs and 2.3 Taxes on Transfers Crossing Borders.
The CMA Guidance Note requires that the liabilities of the SPE, present or future, must be quantifiable, including taxation, be included in the financial model for the securitisation transaction, and that these issues be addressed in one of the legal, accounting or taxation opinions forming part of the offer document.
In accordance with Kenya’s accounting rules, accountants address issues with regard to securitisation accounting through an accounting analysis. This analysis and/or report is distinct from a legal analysis.
Please refer to section 3.1 Legal Issues with Securitisation Accounting Rules.
There are securitisation-specific disclosure laws in Kenya. The disclosures with respect to a securitisation are set out in the CMA Act and the Guidance Note.
The CMA Act provides that any person who issues asset-backed securities must prepare and file a prospectus or an offering memorandum with the CMA.
The issuer/SPE is required to disclose the following key information in the offering memorandum:
The CMA is the overall regulator which must approve the offering memorandum. Additionally, it may impose such conditions as it deems fit for a securitisation transaction.
The CMA also has the following functions with respect to securitisation transactions:
Principal Laws and Regulations
Failure to prepare an offering memorandum constitutes an offence under the Capital Markets Act.
On the first offence, if found guilty an individual offender is liable to a fine not exceeding KES5 million or imprisonment for not more than two years. Such individual would also be liable to pay twice the amount of any gain made or loss avoided as a result of the contravention. On any subsequent offence, if found guilty, an individual is liable to a fine not exceeding KES10 million or imprisonment for not more than five years. Such individual would also be liable to pay three times the amount of any gain made or loss avoided as a result of the contravention.
Where a company is the offender, such company would be liable to a fine not exceeding KES10 million. It would also be liable to pay twice the amount of any gain made or loss avoided as a result of the contravention. On any subsequent offence, such company would be liable to a fine not exceeding KES30 million. It would also be liable to pay three the amount of any gain made or loss avoided as a result of the contravention. An order for compensation may be made in addition to or in substitution of any other penalty or remedy available to that person.
Public Market v Private Market
There are three types of investors for securitisation recognised under the CMA Act, as detailed below.
The disclosure requirements do not vary depending on the investor and type of offer. The requirements of the Capital Markets Act apply to all issues of asset-backed securities generally.
Please refer to 4.1 Specific Disclosure Laws or Regulations.
There are no express credit-risk retention laws applicable to securitisation transactions in Kenya. However in the Guidance Note, the CMA notes that while it presently does not propose to apply a minimum “skin in the game” requirement as in other jurisdictions, it will require each securitisation transaction to disclose: (i) what level of risk will be taken by the originator, and (ii) an explanation for the percentage retention set for the transaction and its implication to investors.
The CMA Act and the Guidance Note have provisions on periodic reporting.
An issuer of securities (including asset-backed securities) has continuous disclosure requirements. Issuers are, for instance, required to keep the CMA, members of the company and other holders of its securities, any listing exchange and the general public of any information relating to the issuer and its subsidiaries which:
Additionally, there are periodic reports that have to be submitted to various stakeholders including the following.
The rules are made and enforced by the CMA. Failure to prepare the above-mentioned report constitutes an offence under the CMA Act.
Rating agencies (RAs) are regulated and licensed by the CMA. Carrying out the business of a rating agency without a licence constitutes an offence.
All issues of asset-backed securities (except those made as a limited restricted offer) are required to be rated by a rating agency licensed or approved by the CMA. In the case of a limited restricted offer the obtaining of a rating is optional.
Obligations must be placed in the transaction documents giving an obligation to rating agencies to provide a copy of any rating report, review or notification of a rating watch should be made available for the CMA and any listing exchange in a timely manner and should be published on the rating agency’s website.
Failure to comply with the provisions on rating constitutes an offence under the CMA Act which is punishable in the manner set out in 4.1 Specific Disclosure Laws or Regulations.
There are no specific rules with respect to securitisation capital and liquidity for securitisation. However, banks are required under Section 19 of the Banking Act to maintain such minimum holding of liquid assets as the Central Bank of Kenya (CBK) may from time to time determine. Currently an institution is required to maintain a statutory minimum of 20% of all its deposit liabilities, matured and short-term liabilities in liquid assets.
The minimum capital requirements’ ratio must be at least 12%, of which 8% is core capital. In addition to the minimum ratios, institutions are required to hold a capital conservation buffer of 2.5% over and above these minimum ratios to enable the institutions to withstand future periods of stress.
These requirements are enforced by the CBK. Where a bank is likely to breach such capital and liquidity ratios, they are required to report to the CBK; the CBK will impose administrative sanctions on such banks that breach the ratios. Additionally, the CBK could undertake "prompt corrective action" including the following: the bank’s board could be required to provide a commitment letter, or enter into a memorandum of understanding, supervision by the bank and appointment of a resolution specialist who is an official of the CBK who is designated to supervise marginal and unsatisfactory institutions.
There are no specific laws or regulations that apply to the use of derivatives in securitisations.
The matter is not relevant in this jurisdiction.
There are no investor protection rules applicable specifically to securitisation. However, the disclosure requirements – both initial and continuing – together with the periodic reports that are required under the CMA Act were established for investor protection.
For principal laws and regulations, see 4.6 Treatment of Securitisation in Finance.
There are no specific laws that apply to banks that securitise any of their financial assets.
Please refer to 1.1 Insolvency Laws and 1.2 Special Purpose Vehicles.
As far as we are aware, there are no activities that SPEs or other securitisation entities try to avoid in order not to be regulated.
The material forms of credit enhancement in securitisation include letters of credit, cash collateral and guarantees.
There have been no government-sponsored entities participating in the securitisation market in Kenya.
Private equity firms, microfinance institutions, pension funds, insurers, banks, retirement benefit funds, and the Government of Kenya could invest in securitisations in Kenya.
Under Kenyan law bankruptcy remote transfer in true sale securitisation transactions is achieved through the matters set out in the following documents.
The information memorandum sets out the salient terms and conditions of the proposed securitisation structure including a description of the asset-backed securities being offered, methods of transfer and any restrictions on transfer of the securities, capacity of the originator to transfer the assets, the circumstances under which the originator may be required to re-purchase the assets and the investor’s entitlements.
Articles of Association of the SPV
Articles of Association of the SPV limit the objects to the sole purpose of acting as an SPV for a securitisation transaction and restricts the SPV from having employees, borrowing or provision of any form of financial support, issuing additional shares or holding shares in any other company and requires the SPV to appoint independent directors.
A trust deed is made between the originator, the issuer and the security or note trustee. The security trustee is to hold the assets transferred to the issuer on trust for the beneficiaries. It has similar restrictions to those set out in the Articles of Association of the SPV.It also sets out the covenants in respect of priority of payment to the investors, subordination provisions, representations, warranties and undertakings of the issuer, which will include the provision of information, restrictions of business activities and maintenance of the appointment of transaction parties. The trust deed sets out the provisions with respect to the holding of meetings, the method of voting and voting percentages to carry a resolution and quorums required for various resolutions – this is important, as in case of an event of default the trustee may exercise an action as authorised by the investors through the resolutions.
The legal opinion is to be addressed to the SPV or trustee for the benefit of the trustee, the SPV and the investors. Itcontains confirmations of the matters set out in the information memorandum, particularly: the validity of the appointment of the trustee, formation and capacity of the SPE to acquire and hold assets, whether the method of transfer constitutes a true sale, potential claims to the assets, enforceability of any securities given, non-petition provisions, subordination provisions and limited recourse provisions and tax implications on all aspects of the transaction unless a tax opinion has been issued.
Sale Agreement (SA)
The SA is the main document used to effect the transfer of the assets to the issuer. The following are the key terms set out under the SA:
The key warranties given by the parties under the RSA relates to the corporate status and, more particularly, the solvency and capacity of the parties to enter into the transaction and compliance with the transaction documentation and the law.
The warranties in respect of the assets relates to the nature and the originator’s good title to the assets, compliance with eligibility criteria for the origination or transfer of the assets, necessary consents being obtained and warranties to the effect that the assets are not encumbered.
Breach of warranty in the sale agreement may result in the originator being required to repurchase the affected assets from the issuer or paying damages for losses suffered.
The CMA Act, as read with the CMA Policy Guidance Notes, requires the transfer or assignment of assets to be legal and not equitable except in limited circumstances.
The perfection of the issuer’s title to the assets may be achieved through:
Under the agreement, the originator should also grant a power of attorney to the issuer in order to allow it to carry out any necessary action to enforce the rights of the issuer.
Failure to comply with the perfection requirements may lead to invalidation of the transaction leaving the investor with no ownership or alternatively, it may limit the ability of the issuer to enforce its rights directly without commencing action in the name of the seller.
The covenants given by the parties depends on the transaction document and the securitisation assets. Both the issuer and the originator provide covenants under the receivables sale agreement and the issuer provides additional covenants under the trust deed and the notes.
The key covenants given by all the parties under the different transaction documents relates to the preservation of the corporate status, compliance with obligations under the transaction documents and the laws and undertakings not to create or permit to subsist encumbrances against the assets.
The parties to the trust deed will also undertake to comply with the limited recourse and non-petition provisions. The issuer and trustee will also covenant not to consolidate, amalgamate or merge with any other persons.
Breach of the covenants by the originator under the RSA may lead to an event of default and the originator may be required to re-purchase the receivables.
Breach of covenants under the trust deed may lead to an event of default under the notes and will entitle the security trustee to enforce its rights on behalf of the investors.
A servicer is appointed under a servicing agreement or the RSA for purposes of servicing the relevant assets and is paid a servicing fee for this. The originator may act as a servicer.
The servicer is responsible for servicing the receivables and for doing the following:
Breach by a servicer of its obligations may lead to a termination event and the issuer may replace the servicer. Alternatively, the servicer may be required to indemnify the issuer or paying agent for any losses suffered.
The events of default are set out under the transaction documents. Under the RSA the events of default by the originator may lead to the originator being required to re-purchase the assets and events of default by the issuer may trigger a default under the notes and lead to early repayment.
The key events for early repayment under the trust deed and the notes relates to failure to pay any amounts when due, breach by the issuer of its obligations under the transaction documents, insolvency of the issuer or cross-default in respect of the issuer’s other indebtedness or if it becomes unlawful for the issuer to perform its obligations.
The indemnities set out under the transaction documents include:
There are no other relevant matters.
Depending on the type of assets, the investor or security trustee (as the case may be) may:
In case the security given is charge over land, then the enforcement mechanism will be governed by the Land Act No.6 of 2012 (Laws of Kenya) and the Land Registration Act No.3 of 2012. The Land Act sets out provisions on certain notices that must be served prior to enforcing the security.
Enforcement of securities given may be limited by:
The issuer (also sometimes referred to under Kenyan law as the “offeror”) is the originator or seller of the assets to a securitisation trust, any securitisation arranger and transaction adviser and any other person making available or offering for subscription or purchase or making an invitation to subscribe for or purchase the asset backed securities. A trustee (in the case of a trust structured special purpose vehicle) is not an issuer.
Issuers are statutorily responsible for: (i) preparation of the prospectus in the event of a public offer of the securities; and (ii) disclosure of information, regarding itself or any of its subsidiaries, which would materially affect the securities market or the investment by the investors in the issuer’s securities.
In essence, sponsors directly or indirectly originate assets into the special purpose vehicle or arrange for the acquisition, sale, transfer or assignment of the assets previously owned by them to the special purpose vehicle and may, where the context permits, include a seller of the assets.
The securitisation manager acts as the underwriter and placement agent, assisting in the administration of assets and the management or operation of the securitisation transaction. The trustee delegates some of its duties to the securitisation manager but the trustee is not thereby released from any of its liability in respect of such delegated duties
Servicers are appointed by the trustee ; where no servicer has been appointed the role of the servicer is undertaken either by the trustee or by the securitisation manager. The primary responsibilities of servicers, where so appointed, are:
In carrying out its functions, the servicer:
There are various categories of investors who have been grouped according to their sophistication and any legal incapacities that they may have due to the regulatory framework that governs certain types of investors. Where securities are issued solely to a specific type of investor, the securitisation transaction is regulated according to the level of the group of investors. For instance, the regulator may set more stringent measures in the case of an unrestricted offer whereby an offer does not limit the persons who can invest in the offered securities and thus has a potentially broad reach of investors including members of the public.
Investors in the Kenyan securitisation market are usually large corporates, governmental entities and other high net worth persons or groups of persons. Common players investing in securitisation in Kenya include banks, insurance companies and Kenyan collective investment schemes such as money market funds
Kenyan law prefers a trust structure rather than a company structure to be the special purpose vehicle for securitisation. Therefore, the common law trust whose legal principles have been codified and regulated under Kenyan statute dealing with trusts is central to the securitisation structure and process in Kenya. The Capital Markets Authority is also empowered to make additional rules and regulations that is specific to securitisation trusts.
The trustee is identified and appointed under the trust deed which forms the securitisation trust. The trustee is charged with the responsibility of:
The trustee has the overall responsibility of implementing the objectives and purposes of the trust for the benefit of the beneficiaries in accordance with the trust deed, any other law governing trustees and the transaction documentation.
Trustees are usually professional trust corporations, often subsidiaries of (or having affiliations to) large banks.
There is presently no legal framework in Kenya that permits synthetic securitisation. The legislation regulating securitisation in Kenya provides that the assets which may be originated into a securitisation trust or sold, transferred or assigned to the trust must:
Synthetic securitisation does not, presently, have the proper legal framework for its utilisation in Kenya. It is likely that the framework for synthetic securitisation would be achieved by the amendment of the Capital Markets Act and the Capital Markets Authority would have the overall regulatory responsibility.
See 8.1 Synthetic Securitisation.
See 8.1 Synthetic Securitisation.
See 8.1 Synthetic Securitisation.
See 8.1 Synthetic Securitisation.
See 8.1 Synthetic Securitisation.
As stated above, Kenya has yet to have a securitisation transaction undertaken under the existing legal framework for securitisations. We cannot therefore confirm what common financial assets would be securitised.
See 9.1 Common Financial Assets.
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