Mahida Maina Advocates

Category: Articles

Progressive Approach to AI Regulation (Kenya); The Artificial Intelligence Bill 2026.

The Artificial Intelligence Bill, 2026 recently tabled in Parliament, marks a significant and commendable milestone in Kenya’s journey towards robust AI governance. The Bill reflects a more adaptive and development-oriented model, balancing oversight with innovation, capacity building, and ecosystem growth.

While the Bill is a bold and progressive initiative, these certain areas could benefit from further clarity to strengthen its effectiveness:

1. Definition of Artificial Intelligence

The Bill ought to clearly distinguish AI systems from traditional software or purely rule-based programs, excluding software systems that function solely on fixed rules established by human operators and lack the capacity to learn, adapt, or produce outputs autonomously.

2. Scope of Application

It remains unclear whether the Bill applies to deployers or AI systems that are established in foreign jurisdictions but are largely used within Kenya’s territorial jurisdiction.

3. Roles of Distributors and Third-Party Providers

Clear definitions and obligations of distributors and third-party providers of AI Systems will help ensure accountability across the AI supply chain.

4. Risk Classification

The criteria or threshold used to assess the level of risks posed by an AI System, to classify the system as either unacceptable risk, High Risk, limited risk or minimal risk is not clear.

5. Prohibited AI Practices

The Bill currently offers no comparable prohibition, and could benefit from specifying prohibited AI practices to provide clear boundaries in a fast developing technological arena.

This is particularly important in areas with high ethical or societal impact. Such provisions could draw inspiration from frameworks like Article 5 of the EU AI Act, which identifies practices considered inherently unacceptable, including mass biometric surveillance and manipulative or deceptive uses of AI.

Considering the Bill is still at a preliminary stage, it will be especially interesting to see how this framework matures in practice, the accompanying regulations that will guide enforcement, and how it interacts with more established regimes like the EU’s in cross-border AI deployment and compliance.

April 27, 2026
SAME TRADE NAME, SAME PRODUCT(S); A LEGAL TRAP?

You’ve probably seen it before. Two businesses, similar trade name, offering the same
product or service,targeting the same market. One has been around longer, the other just
“happened” to pick the same name. To the average customer, the distinction is blurry,
probably confusing and that’s exactly where the legal trap begins.
In law, this is called passing off. And no, you don’t need a registered trademark for it to
apply.

Passing off occurs where one business uses a name, brand, or get-up so similar to another,
that customers are likely to be misled into thinking the two are connected. What the law
protects here is goodwill and the reputation a business has built over time.
The High Court addresses this in Johari School Limited v Wambugu t/a Johari School (Civil
Case No. 191 of 2018) [2026] KEHC 293 (KLR). In this case, the Plaintiff registered and
operated as a school since the year 2011, in the name Johari School. The Defendant also
registered a business name ‘Johari Daycare and Kindergarten’ in 2014 and later on
proceeded to request for its registration at the Ministry of Education as ‘Johari School ‘and
then ‘C.I Johari School’.

These two schools were operating under a strikingly similar name “Johari”, in the same
sector, targeting the same market. The Court had little difficulty finding that the ordinary
person may conclude that the two entities are related or the same. This created confusion,
whether intended or not. Once confusion exists, liability follows.

The court was particular that; “The Plaintiff has established that it had goodwill and
reputation as it had registered a company and operated a school under the title ‘Johari
School’ since 2011. It also illustrated that the Defendant later on established a school with
a similar name and thereby passed off as if it were the Plaintiff school. It is plausible that
the Plaintiff suffered damages and or losses as a result of the Defendant’s actions of
passing off. In passing off cases, however, the true basis of the action is that the passing
off by the Defendant of his goods as the goods of the Plaintiff injures the right of property
in the Plaintiff, that right of property being his right to the goodwill of his business. The
law assumes, or presumes, that, if the goodwill of a man’s business has been interfered
with by the passing off of goods, damages results therefrom.”

The key takeaway? Using the same trade name for the same product as that of an existing
entity is rarely accidental in the eyes of the law. If customers are likely to think your
business is connected to someone else’s, you may already be in dangerous territory. You
might actually be liable to pay the other business the cost incurred by it. You are free to
compete, but not by riding on another business’s name & goodwill. A familiar name may
attract customers, but it can also attract injunctions, damages, and costly litigation.

So before settling on that “perfect” trade name, it’s worth asking: Is it unique, or just legally
risky?

March 31, 2026
What the New Digital-Assets Regime Means for Businesses, Banks and Consumers

Why this matters (now)

Kenya moves from a grey zone to a rules based market for digital assets. With the Act in force, expect clearer paths to bank accounts, investor confidence and safer retail participation, while regulators clamp down on illicit finance risks.

The big design choice: Two regulators, distinct roles

• Central Bank of Kenya (CBK): oversight of issuance and stablecoins (reserve quality, redemption, paymentsystem safety).
• Capital Markets Authority (CMA): licensing/supervision of exchanges, brokers and custodians, plus market conduct, disclosure, and clientasset protection.
This split aligns oversight with function and mirrors global best practice for systemic stablecoins vs. market venues.

AntiMoney Laundering/Counter Financing of Terrorism (AML/CFT) is the spine of the framework

Virtual Asset Service Providers (VASPs) become reporting institutions with duties around Know Your Customer/Customer Due Diligence (KYC/CDD), ongoing monitoring, Suspicious Transaction Report (STR) filings, recordkeeping/Travel Rule, governance and cybersecurity and audits, critical to interoperability with banks and crossborder partners.

What changes for key stakeholders

For Virtual Asset Service Providers (VASPs) & Web3 startups

• Bankability + legitimacy under a licensing regime.
• Higher bar: capital/solvency, fitandproper management, custody controls, incident reporting.
• Consolidation risk: compliance costs may push partnerships/mergers.

For consumers & investors

• Safer platforms: asset segregation, clearer fees/risks, cyber standards, and dispute channels.
• Lower counterparty risk on licensed venues vs. informal peertopeer (P2P).

For banks & incumbents

• Shift from blanket derisking to riskbased onboarding of licensed Virtual Asset Service Providers (VASPs).
• New lines: custody partnerships, stablecoin reserve services, analytics for compliance.

For the wider economy

• Investment magnet: legal certainty attracts quality players.
• Tax clarity & compliance improve as activity formalizes (watch Kenya Revenue Authority (KRA) guidance).

What’s in force and what’s next

• Status: Virtual Asset Service Provider (VASP) Act No. 20 of 2025; assent Oct 15, 2025; commencement Nov 4, 2025 (per Kenya Gazette).
• Next mileposts: Central Bank of Kenya (CBK)/Capital Markets Authority (CMA) to gazette implementing regulations (licence categories, prudential rules, disclosure/marketing standards, Travel Rule mechanics, transitional arrangements and timelines). Monitor regulator sites and Gazette notices.

90-day action checklist (practical steps)

For Virtual Asset Service Providers (VASPs) / exchanges / custodians

1. Licensing readiness: gap analyse capital, governance, Information Technology (IT)/cyber, ops resilience, client asset segregation.
2. AntiMoney Laundering (AML) uplift: risk assessment, Customer Due Diligence (CDD) tiers, Travel Rule vendor, Financial Reporting Centre (FRC) reporting workflow.
3. Incident & custody playbooks: hot/cold storage policy, key management, breach notification.
4. Disclosure pack: risk summaries, fee tables, Terms and Conditions (T&Cs), privacy + Data Protection Act, 2019 (DPA 2019) alignment.
5. Banking engagement: prepare compliance artefacts for onboarding.

For banks / payments players

1. Update policies to onboard licensed Virtual Asset Service Providers (VASPs) on a risk basis.
2. Explore custody/fiat onoff ramps/stablecoin services.
3. Integrate blockchain analytics for monitoring.

For corporates dabbling in Web3

1. Contract hygiene: clarify asset ownership, keys, Service Level Agreements (SLAs), incident duties with any Virtual Asset Service Provider (VASP) vendor.
2. Tax & accounting: define recognition, basis/realisation events; watch Kenya Revenue Authority (KRA) circulars.
3. Data protection: lawful basis, minimisation, crossborder transfer controls for Know Your Customer (KYC) data.

FAQs

Is the Virtual Asset Service Provider (VASP) Bill already law?
Yes. It’s now Act No. 20 of 2025, assented Oct 15, 2025, commenced Nov 4, 2025.

Who licenses what?
Central Bank of Kenya (CBK) handles issuance/stablecoins; Capital Markets Authority (CMA) handles exchanges, trading platforms and custody.

Are there transitional windows?
Expect licensing windows and transitional provisions to be set out in gazetted regulations by Central Bank of Kenya (CBK)/Capital Markets Authority (CMA). Keep an eye on official notices.

What happens to peer-to-peer (P2P) trading?
The Act targets intermediaries (VASPs). peer-to-peer (P2P) will persist, but regulated venues should become safer defaults, with enforcement focused on illicit finance risks.

Bottom line

Kenya’s Virtual Asset Service Provider (VASP) regime is now live. If implementation (capacity, coordination, clarity) matches ambition, Kenya can derisk participation, attract quality capital, and lead regionally while protecting users. For market players, the mandate is clear: get complianceready and build for a regulated future.

Legal disclaimer: This article is for general information only and does not constitute legal or tax advice. Engage professional counsel for specific guidance.

December 1, 2025
Common Tricks Fraudsters use to Con Property Buyers in Kenya

If you follow the local news or keep up to date with the developments in the real estate sector, then you have an idea of how deep fraud has taken root. Kenya has again been put on the grey list mainly because of our real estate sector. The grey list refers to countries that have deficiencies in dealing with money laundering and terrorist financing. Kenya’s real estate is believed to be encroached by criminals from Somalia in a bid to clean dirty cash from piracy and other illegal activities.

We’ll discuss the impact of the grey list in another article. Today, we are focused on the fraud that directly affects you when buying property in Kenya and how to avoid it. However, before we discuss the tricks fraudsters use to defraud you, there are THREE pieces of information that I believe are important to note.

Some of these facts may not be news to you if you are updated on property matters or follow our posts closely.

1️⃣ According to a 2023 report by the Ministry of Lands and Physical Planning, over 3,000 land fraud cases were reported nationwide.

2️⃣ The government recently reported the theft of over 367 security papers used to print title deeds.

3️⃣ The DCI’s Land Fraud Investigations Unit recently charged 10 people with fraud in an over 1 billion shilling land deal in Nairobi.

➡️ Among the ten was a Registrar of Titles at Ardhi House, and a Land Administration officer, who were further charged with abuse of office.

This is how deep fraud goes. There are criminal elements everywhere, even within institutions that are there to catch these criminals.

It would be advisable for anyone to avoid buying property in Kenya altogether, but this is what they call ‘throwing the baby together with the bath water.’ Real estate remains one of the most lucrative investments in the world, and any serious investor has some real estate in their portfolio.

As lucrative as it may be, we cannot ignore the fact that land and property fraud is becoming more sophisticated as criminals craft new ways to exploit unsuspecting buyers. However, there is one thing criminals rely on to succeed in their endeavors. They rely on ignorance.

Criminals rely on your lack of knowledge or information on the property purchasing process or the scams they propagate. Your best defense is to have as much information as possible on property transactions and the scams at play.

Note: We have a lot of information on property transactions and even how to conduct your due diligence. You will get all this on our website, blogs, or social media pages. For this article, we will focus on the common tricks fraudsters use to defraud property buyers as promised.

The list of tricks is quite long as we try to give you as much information as possible. To avoid making this post longer than it should be, we will provide links to our social platforms, under every post, where you can find the full post and dive deeper to learn exactly how to protect yourself.

We also understand that this is a long post, and you may not have the time to go through it all. Please save the link and return later, or you can go directly to the scam you feel you need to know more about. Happy reading, and share this with friends and family as you find it useful.

We begin with the most prevalent scam…IMPERSONATION.

The Impersonator

This is one of the most common scams of all. It is also used to enable many of the other scams we will unveil in this post. Impersonation is the oldest trick in the book of cons, yet many Kenyans continue to fall for it. For this, fraudsters come prepared with fake ID cards, forged signatures, and some even pretend to be family members of the real owner. But as simple as it looks, the scam is well orchestrated, and before you know it, you are buying property from a stranger who has no legal right to sell it. Find out more about how the scam works and how to protect yourself by clicking any of the links below for the full post.

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Fake Papers

Unfortunately, we are finding ourselves in a time where a title is not enough to prove ownership when buying a property. There is a substantial number of title deeds in circulation that are either forged or obtained illegally through corrupt means. These ‘title deeds’ are made to look authentic, complete with stamps, seals, and signatures. Find out more about these titles and how you can protect yourself in any of the links below.

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Survey Marks

Land fraud is not limited to the paperwork. Some fraudsters physically tamper with survey beacons or maps to alter the actual size or location of a plot. You will be shown what looks like a legitimate boundary on paper, but on the ground, you will find things are different. The full post reveals this trick and instructs you on what to do during a site visit.

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Stealing from the dead

You’d think fraudsters are only interested in those in the land of the living, but as we have discovered, they will cross over to the other side if it means having a payday. Fraudsters rush to sell land owned by someone who recently passed away before their beneficiaries realise what is happening. There are many cases in court like this where someone is contesting a piece of land belonging to a deceased person. Learn more about how this scam works through any of our social platforms below.

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Selling Air

The digital world has opened new opportunities for scammers to exploit hardworking Kenyans. Many have been conned through enticing listings online for plots in prime areas, complete with photos, coordinates, and stories that make it all sound legitimate. Our post will enlighten you on how to safely navigate online land listings without falling for digital traps.

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Off-Plan Scams

Off-plan developments can be an affordable way to own property. It is also a ripe harvest for fraudsters to reap from uninformed buyers. Off-plan scams are new, and many Kenyans have lost millions paying for homes that were never built. Discover how the scam works and how you can tell a genuine project from a fake one.

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Tom Mboya Street

This is both a funny and sad tale of someone who bought a roundabout. It’s okay to laugh or sympathise with him, but you should make sure you don’t find yourself in the same predicament. In this eye-opening post, we revisit the infamous case of the roundabout and guide you on how to avoid buying public land.

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Cheap Scam

Many people are always out to get ‘good deals’, and fraudsters take advantage of this by offering unrealistically low prices to lure unsuspecting buyers into hurried, risky deals. A word of caution in land transactions…a price that’s too low should be a warning sign, not a reason to celebrate. Learn how to access a good deal for properties in Kenya by reading the full post.

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Online Scams

This post builds on the fraudulent property listings online. It goes deeper into online property scams through phishing websites, identity theft, and other ways fraudsters exploit technology to con you. Learn how to stay alert and protect yourself from online scams.

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Matrimonial Property

This is not necessarily a scam, but it could potentially drain your money or drag you to court for years without redress. It is not common knowledge that selling matrimonial property without spousal consent is not only unethical but illegal. Many buyers unknowingly purchase property owned by a married couple, only for the other spouse to challenge the sale later. Learn how to avoid buying such property and what to do instead.

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Unauthorized Sale

Property owned by a group or managed by a board is seldom ever sold by one person acting alone. Even if the seller is part of the group or board, they should have undeniable proof of consent from the other members to have administrative rights over the said property. The full post explains how to verify group or board consent and why communal approval is crucial.

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Disputed Property

This scam is one of the most dangerous for one major reason. The fraud is not only carried out by fraudsters but also by ill-willed owners and custodians who sell property with loans, inheritance issues, among other disputes, hoping to get their money quickly and transfer the ‘property problems’ to the buyer. The full post explains how to spot the red flags early and protect your investment.

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Double Selling

This is also another dangerous scam because it is primarily propagated by the genuine owner. The owner sells the same piece of land to more than one buyer. The buyer(s) realise this late when someone else shows up claiming ownership. Learn more about double selling and secure your hard-earned income from these greedy, non-remorseful individuals.

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As we said at the beginning of this post. It would be wise for someone not to invest in properties in Kenya; however, this would be one-sided. Land scams thrive on ignorance, urgency, and misplaced trust. With the right information and safeguards in place, you can comfortably enjoy the proceeds of your real estate investment.

Below are some KEY takeaways from the series…

VERIFY EVERYTHING: Always check title deeds, spousal consent, survey marks, and approvals with official channels like the Ministry of Lands, Ardhisasa, or local authorities.

ENGAGE PROFESSIONALS like licensed advocates, surveyors, or real estate agents to guide your transactions.

AVOID RUSHING into deals, especially ones with unrealistically low prices or sellers who discourage due diligence. If something feels off, investigate further.

CONDUCT thorough DUE DILIGENCE before making any payments. And make use of escrow accounts for payment for extra protection.

STAY UPDATED on real estate matters and learn from other people’s experiences.

PS: The post is NOT meant to be a substitute for professional legal advice. Use it for general information only, but remember to engage professionals where needed.

Feel free to go through our website for more informative content and learn more about who we are and what we can do for you. Also, take time to read each of the full posts linked above. Share them with your family and friends. You’ll never know whose future investment you could help save.

April 25, 2025
Public-Private Partnerships (PPP) in Kenya
Public-private partnerships (PPPs) have been used as a driver for economic growth and infrastructure development all over the world for many years. In recent times, however, PPPs have become popularized, especially with such a deal in motion involving our national airport. Anything that gains sudden popularity while marred with political influence often breeds confusion because of opposing views. This is why we thought it wise to shed light on the matter so you can discuss PPPs from an informed point of view.

Public-Private Partnerships (PPPs) are a broad topic that cannot be exhausted in a single article. However, I will try to explore facets of PPPs in Kenya and their impact. We will explore:
- Legal and Regulatory Framework for PPPs in Kenya
- Sectors Where PPPs Are Commonly Used
- Challenges to Successful Implementation of PPPs
- Notable Examples of PPPs in Kenya
- Role of Stakeholders in PPPs
- Benefits and Risks of PPPs
What is a public-private partnership?

A PPP is a long-term contractual agreement between a public entity (such as the government) and a private sector partner to finance, build, operate, and maintain projects that serve the public interest. By combining the resources and expertise of both sectors, PPPs allow the government to deliver large-scale projects more efficiently and cost-effectively.

Kenya also aligns with international best practices, including the UNCITRAL Legislative Guide on privately financed infrastructure projects.

PPPs in Kenya are primarily used in infrastructure, focusing on roads, energy, transportation, and healthcare. Major highways, energy projects like independent power producers (IPPs), and modern healthcare facilities have been delivered through PPP arrangements. Notable projects include the Nairobi Expressway and the Lake Turkana Wind Power, which we shall discuss in detail below.

Challenges faced by PPPs

Despite their immense potential for developing a country, Public-private partnerships (PPPs) are not free of challenges. One of the most significant challenges we have witnessed in recent times is public opposition. Especially in sectors like healthcare and water services, public opposition may slow down or derail a project. This mostly happens when the community is not well educated on the dynamics of a project or when there are concerns that a service may no longer be affordable with privatization.

Another challenge is corruption and lack of transparency in the bidding process, making it difficult for investors to trust the system. Political changes also pose a risk, as incoming administrations may alter or cancel previously approved projects. For instance, the Kenya-Uganda Railway PPP encountered political and financial challenges, which ultimately led to its restructuring. Despite these challenges, Public-Private Partnerships remain one of the most viable ways to further the development agenda of any country in the world.

Successful PPPs in Kenya

Kenya has seen several successful PPP projects that have significantly improved infrastructure and service delivery. Two prominent examples are the Nairobi Expressway and the Lake Turkana Wind Power Project.

(a) Nairobi Expressway

The Nairobi Expressway is a 27-kilometer road connecting Jomo Kenyatta International Airport (JKIA) to Nairobi’s central business district. It was developed through a PPP between the Kenyan government and the China Road and Bridge Corporation (CRBC). The project has reduced traffic congestion in Nairobi, significantly reducing commuters’ travel time.

(b) Lake Turkana Wind Power Project

This project is the largest wind farm in Africa and was developed through a PPP between the government of Kenya and private sector investors. The wind farm provides approximately 15% of Kenya’s electricity needs and is vital to Kenya’s push towards renewable energy.

Stakeholder Involvement in PPPs

The success of PPPs depends on the working relations of the key stakeholders of a project. The key stakeholders in a Public-Partnership Agreement include government ministries involved, private sector partners, financial institutions, and civil society organizations. Each stakeholder plays a crucial role in ensuring the project meets public needs while remaining financially viable for every investor.

When well executed, PPPs offer numerous benefits, such as improved infrastructure, enhanced service delivery, and increased efficiency through private sector participation. However, they also carry risks, including financial instability, poor project execution, and the potential for public backlash if the projects are not transparent or well-managed. This is why the government should ensure that PPP contracts have clear risk-sharing mechanisms and that projects are financially sustainable without overburdening the public.

Public-Private Partnerships (PPPs) are critical to Kenya’s infrastructure development and economic growth. Despite the challenges, PPPs offer a viable solution for closing the infrastructure financing gap. By improving the legal and regulatory framework, fostering better stakeholder collaboration, and addressing public concerns, Kenya can unlock the full potential of PPPs and ensure that these partnerships contribute to sustainable development.
October 9, 2024