KENYA IP GUIDEEast Africa | ARIPO Member

Intellectual Property Kenya
The Republic of Kenya lies on the Equator in East Africa. It is bordered by the Indian Ocean and Somalia to the east, Ethiopia and South Sudan to the north, Uganda to the west and Tanzania to the south.

Area: 580 367 km2

Population: 40 million

Capital: Nairobi

Currency: Kenyan Shilling

GDP: $ 65.9 billion (2010)

Trade Marks

Kenya is a member of the Paris Convention, the Madrid Agreement and Protocol, and the WTO/TRIPS.

Applications for the registration of trade marks may be filed as national applications, in appropriate circumstances, claiming priority in terms of the Paris Convention; or Kenya may be designated in international applications in terms of the Madrid Agreement/Protocol.

Provision is made for the registration of trade marks for goods and services, for collective marks, certification marks, defensive registrations of well-known marks, and for series marks.

The Act provides for registration of a mark in Part A of the register, where the mark must already have acquired distinctiveness; and for registration in Part B of the register, where the mark must only be capable of becoming distinctive.

Patents

Kenya is a member of the Paris Convention, ARIPO (Harare Protocol), the PCT and the WTO/TRIPS.

Patent protection is available via a national filing, in appropriate circumstances claiming priority, or an ARIPO application designating Kenya, or an international application under PCT designating Kenya.

Kenya has implemented the Harare Protocol (which regulates patent and design filings in ARIPO) in its national law, thereby giving valid patent protection to applicants seeking to obtain a patent via an ARIPO application. Kenya has also implemented the PCT in its national law, thereby affording valid protection to applicants making use of the PCT filing system. The deadline for entering the PCT national phase in Kenya is 30 months from the earliest priority date.

The Act places a restriction on persons resident in Kenya to file applications for a patent outside Kenya unless certain requirements are complied with.

The Act provides for conventional patents to protect an invention which is new, involves an inventive step, and is industrially applicable or is a new use.

The Act also provides for divisional patents, provided that a divisional patent may not go beyond the disclosure in the main patent.

The Act further provides for utility models; patent applications may be converted to utility model applications, and vice versa.

Designs

Kenya is a member of the Paris Convention, ARIPO (Harare Protocol) and the WTO/TRIPS.

Design protection is available by way of a national filing, in appropriate circumstances with a claim to convention priority, or via an ARIPO application designating Kenya. Kenya has implemented the Harare Protocol (which regulates patent and design filings in ARIPO) in its national laws, thereby providing for valid design protection to applicants seeking to obtain a design registration via ARIPO.

Copyright

Kenya is a member of the Berne Convention, the Brussels Convention, the Phonograms Convention, and the WTO/TRIPS.

The Act provides for the following works to be eligible for copyright protection:

  • literary works
  • musical works
  • artistic works
  • audiovisual works
  • sound recordings

Literary works are further defined to include:

  • novels, stories, poetic works, letters, reports, memoranda
  • plays, stage directions, film scenarios, broadcasting scripts
  • textbooks, treatises, essays, articles, encyclopaedias, dictionaries
  • lectures, addresses and sermons
  • charts, tables and compilations of data
  • computer programs.

Artistic works are further defined to include:

  • paintings, drawings, etchings, lithographs, woodcuts, engravings, prints
  • maps, plans, diagrams
  • works of sculpture, works of architecture
  • photographs, works of artistic craftsmanship.

Plant Breeders' Rights

Plant breeders’ rights can be obtained in Kenya under the Seeds and Plant Varieties Act, Chapter 326, Laws of Kenya.

Kenya is a member of the UPOV Convention for the Protection of New Varieties of Plants.

The effect of protection is that the plant breeder’s right holder has an exclusive right to produce reproductive material of the variety for commercial purposes, to offer it for sale, to export it, and to stock it for any of these purposes.

Company Law

Business vehicles

There are several forms of companies commonly used by foreign investors:

  • Company limited by shares.
  • Company limited by guarantee.
  • Unlimited company.

All three forms of companies can be private or public. Private companies are required to have at least two shareholders. Public companies are required to have at least seven shareholders.

Competition Law

Competition Act 12 of 2010.

The Act is enforced by the Competition Authority and its decisions can be appealed to the Competition Tribunal, based in Nairobi.

Consumer Protection

The President of Kenya signed the Consumer Protection Act, 2012 (CPA) into operation during 2013. The main objectives of the CPA are to provide for the protection of consumers and to prevent unfair trade practices in consumer transactions.

Data Protection

Kenya does not currently have any data- and privacy protection laws. However, the Data Protection Bill, 2012 is currently in the process of being finalised (as part of Kenya’s Connected Kenya Master Plan (2012 – 2017)) and will, among other things, provide for the establishment of the Commission of Administrative Justice to oversee compliance with the provisions of the Data Protection Bill.

Dispute Resolution

There are two levels of courts in Kenya, Superior Courts and Subordinate Courts. The Superior Courts include the High Court, the Court of Appeals and, at the apex, the Supreme Court. The Subordinate Courts are made up of the Resident Magistrate Court, Kadhi Courts, Court Martials, Tribunals and the District Magistrate Courts.

Employment Law

Governing legislations

  • Employment Act, 2007
  • Labour Institutions Act, 2007
  • Labour Relations Act, 2007
  • Occupational Safety and Health Act, 2007
  • Work Injury Benefits Act, 2007

Particulars of employment

An employment contract must be furnished to an employee within 2 months of commencement. Employment contracts for a period of 3 months and longer must be in writing.

Exchange Control

There are no exchange control restrictions in Kenya. Foreign investors and companies may freely transfer profits after complying with their tax obligations, provided there is written evidence of an underlying business transaction and the bank handling the repatriation is a licensed bank in Kenya and is satisfied as to the genuineness of the transaction in the case of remittances in excess of the equivalent of USD 10 000.

For any amount equivalent to USD 500 000 or more, the bank undertaking the remittance is required to notify the Central Bank of Kenya first. Commercial banks are also required to report to the Financial Reporting Centre, established under the Proceeds of Crime and Anti-money Laundering Act of 2009, in this regard, all cash transactions exceeding USD10 000 or its equivalent in any other currency must be reported.

Tax Law

Resident companies and non-resident companies are taxed on all income accruing from Kenya. Income tax is imposed on a company’s gross income less allowable deductions.

Expenses claimed must be wholly and exclusively in the production of income.

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