1. Introduction

The Statute Law (Miscellaneous Amendments) Act, 2024 (the Act) was gazetted on 26 April 2024 after being signed into law by the President on 24 April 2024. The Act came into force on 26 April 2024. The Act seeks to amend various provisions of 14 Acts of Parliament, namely:

• the Office of the Attorney General Act;
• the Oaths and Statutory Declaration Act;
• the Advocates Act;
• the Notaries Public Act;
• the Sexual Offences Act;
• the Public Holidays Act;
• the Trustees (Perpetual Succession) Act;
• the Universities Act;
• the Employment Act;
• the Industrial Training Act;
• the Veterinary Surgeons and Veterinary Para-Professionals Act;
• the Public Finance Management Act;
• the Value Added Tax Act; and
• the Privatisation Act.

In this legal alert, we highlight key amendments to the above Acts and analyse their implications.

2. Summary And Analysis of The Amendments To The Acts

2.1. The Trustees (Perpetual Succession) Act

2.1.1 Registration of trusts to be carried out by the Registrar of Companies

The Act has amended the Trustees (Perpetual Succession) Act to have the Registrar of Companies responsible for the registration of trusts in Kenya, a function that was previously undertaken by the Principal Registrar of Documents. Through this amendment, the Registrar of Companies has the power to issue certificates of incorporation of trusts, maintain the register of trusts, issue searches in respect of trusts and make regulations under the Trustees (Perpetual Succession) Act. By transferring these functions to the Registrar of Companies, the efficiency and effectiveness of trust registration procedures should improve as most functions undertaken by the Registrar of Companies are available on the online government platform known as eCitizen. 

2.1.2 Application for the registration of trusts

An application for the registration of a trust will now be made through Form TR-1, which will be accompanied together with the following information and documents: 

• name of the proposed trust;
• registered office and contact address of the proposed trust;
• principal objects of the proposed trust;
• name, designation, postal address and identification details of the proposed settlers, first trustees and/or enforcers of the proposed trust; and 
• statement of the assets of the proposed trust together with the value of the assets.

This amendment removes the requirement by a trust to submit a common seal together with its regulations for its custody and use for registration purposes. This is in line with the amendments made to the Companies Act, 2015 which effectively removed the requirement for companies to have common seals. The fees chargeable for the incorporation of a trust will be KES 10,000, while conducting and obtaining the search of a trust will be KES 500.

2.1.3. Registration of provident funds and pension funds

The Act deletes the definitions of "provident fund" and "pension fund" from the Trustees (Perpetual Succession) Act. These definitions provided for the establishment of provident and pension funds as trusts under the Trustees (Perpetual Succession) Act. It also outlined the main objectives of provident and pension funds, respectively.

2.2. The Value Added Tax Act, 2013

2.2.1. Supply of gas meters of tariff number 9028.10.00

The supply of gas meters of tariff number 9028.10.00 is now exempt from VAT. This amendment is geared towards making cooking gas more affordable and accessible to Kenyan households. While this is a welcome amendment, zero-rating these items would have had a greater positive impact towards making these items more affordable, as zero-rating status allows the sellers to claim VAT on inputs. When an item is exempt, a seller/producer cannot claim an input for the VAT they pay on inputs.

2.2.2 Denatured ethanol of tariff number 2207.20.00

Denatured ethanol of tariff number 2207.20.00 is now standard-rated for VAT purposes. These supplies were previously exempt from Value Added Tax. This amendment is in contrast to the proposals made in the Bill, which sought to zero-rate the supplies. Subjecting denatured ethanol to VAT at 16% will drive up the price of this commodity. Both these amendments take effect from 25 April 2024 notwithstanding the fact that the Finance Bill, 2024, which will set out proposed amendments to tax laws including the VAT Act, 2013, is soon to be released. 

2.3. The Industrial Training Act, Cap 237

Remittance date of training levy

The training levy under the Industrial Training Act will now be remitted by employers on the ninth day of every month rather than the fifth day. This amendment aligns the remittance date for the training levy with the date of remittance of PAYE to the Kenya Revenue Authority. By aligning these remittance dates, the government seeks to streamline administrative processes and facilitate ease of compliance for employers.

2.4. The Office of the Attorney General Act, Cap 6A

2.4.1. Introduction of the Advisory Board of the Office of the Attorney General

To streamline human resource management within the Attorney-General's office, the Act has introduced the Advisory Board of the Office of the Attorney General. The Advisory Board will advise the Attorney General on the recruitment, appointment, promotion, remuneration and discipline of the Deputy Solicitors-General, state counsels and other staff of the Office of the Attorney General. 

Through this amendment, the Public Service Commission will no longer be involved in the human resource management of the Office of the Attorney General. The Board will comprise the Attorney-General as chairperson together with the Principal Secretaries of Public Service and the National Treasury, the chairperson of the Public Service Commission, the president of the Law Society of Kenya and the chair of the Council of the Institute of Human Resource Management. With the new amendments, all state counsels, officers and members of staff employed and deployed by the Public Service Commission will be deemed to have been employed in accordance with the above amendments and they shall retain any rights that accrued to them prior to the above amendments.

2.4.2 Seal of the Office of the Attorney General

The Act introduces the seal of the Office of the Attorney General which shall confirm that the documents have been duly authorised by the Attorney General. 

2.5. The Employment Act, Cap 226

Exemption of the National Intelligence Service (NIS) from the Employment Act

The National Intelligence Service (NIS) has been exempted from the provisions of the Employment Act. The exemption is similar to exemptions granted to other national security organs including the Kenya Defence Forces, the Kenya Police and the National Youth Service. This measure acknowledges the unique operational requirements and sensitive nature of intelligence services, necessitating a tailored regulatory framework distinct from standard employment legislation.

2.6. The Public Holidays Act, Cap 110

Renaming of the 10 October holiday from Utamaduni Day to Mazingira Day 

Over the years, the significance of the 10 October holiday in Kenya has undergone a series of transformations, reflecting shifting priorities and values within the nation. Initially celebrated as Moi Day in 1990, the observance of this day was later discontinued following the promulgation of the Constitution due to its non-recognition by the Constitution. However, in 2017, the Supreme Court of Kenya reinstated its recognition, marking a resurgence of its importance.

Subsequently, in 2019, it was designated as Huduma Day and in 2020 it underwent another transformation, being rebranded as Utamaduni Day, highlighting the rich cultural heritage of the Kenyan people. Through the amendment, the 10 October holiday has now been named Mazingira Day which will serve as an opportunity for citizens to actively engage in environment conservation activities towards protecting and preserving the environment for future generations.

2.7. The Oaths and Statutory Declarations Act, Cap 15

2.7.1 Custodian of the Roll of Commissioner of Oaths

The Act has amended the Oaths and Statutory Declarations Act to replace the Registrar of the High Court with the Chief Registrar of the Judiciary as the custodian of the roll of Commissioner of  Oaths for advocates.

2.7.2 Powers of magistrates and certain court officers to administer oaths

Registrars and Deputy Registrars of superior and subordinate courts together with magistrates have the power to administer any oath or affirmation or take any affidavit or statutory declaration under the Oaths and Statutory Declarations Act. Previously only the Registrar of the High Court, a Deputy Registrar, a Deputy Registrar of the Environment and Land Court, and the Deputy Registrar of the Employment and Labour Relations Court were allowed to undertake this function. Therefore, all registrars and deputy registrars in all levels of courts are now able to administer oaths and affirmations and take any affidavit or statutory declaration under the Oaths and Statutory Declarations Act.

2.8. The Advocates Act, Cap 16

2.8.1 Rules on admission of advocates under the Advocates Act

Section 81 of the Advocates Act has been amended to expand the role of the Council of the Law Society of Kenya to make rules governing the admission of advocates to the bar. Empowering the Law Society of Kenya to create rules on admission will allow the Society to make rules tailored to the evolving needs of legal education and professional development in the country.

2.8.2 Custodian of the roll of advocates

The Act has amended the Oaths and Statutory Declarations Act to replace the Registrar of the Court with the Chief Registrar of the Judiciary as the custodian of the roll of advocates and to issue practising certificates to advocates upon admission. 

2.9. The Notaries Public Act, Cap 17

Custodian of the roll of notaries

The power to enrol notaries public and issue annual certificates to them has been issued to the Chief Registrar of the Judiciary whose role was initially held by the Registrar of the High Court. 

2.10. The Sexual Offences Act, Cap 63A

Register of convicted sexual offenders

Similar to amendments made in the Advocates Act, Notaries Public Act and Oaths and Statutory Declarations Act, the Chief Registrar of the Judiciary will assume custody and maintenance of the register of convicted sexual offenders, marking a significant shift in oversight and management of this crucial database. 

2.11. The Universities Act, Cap 210

Criteria for the declaration of technical universities

The amendment has introduced a new criterion for the declaration of a public institution as a technical university. Prior to the declaration of a public institution as a technical university, the public institution is now required to possess the necessary physical infrastructure and human resource capacity appropriate for a technical university. Previously, the only criteria provided was that an institution was or is designated as a national polytechnic under the Technical and Vocational Education and Training Act. This amendment aims to ensure that these institutions maintain high standards of academic excellence and operational capacity, ultimately contributing to the country's socioeconomic development and resilience.

2.12. The Privatisation Act, 2023 

The responsibility for preparing long-term divestiture sequence plans will no longer fall under the purview of the Privatisation Authority. However, the Act has not re-assigned this responsibility to any entity.