Dear Briefers,

A few more days the festivities can properly begin ! (hang in there)

Welcome to the seventh edition of The Waswa Brief, a weekly digest spotlighting legal and policy developments shaping Kenya, East Africa, and the continent. Every week we break down what’s changing, why it matters, and where the law is headed next. This edition covers:-

The World Bank pressed the Communications Authority of Kenya to cut mobile termination rates, arguing the current rate of KES 0.41 per minute remains far above the estimated cost of roughly KES 0.06 per minute. The Bank warned high termination fees shield the dominant operator and hinder smaller telcos from offering cheaper voice services. It flagged tower sharing and spectrum allocation rules as outdated. The current regime expires on 28 February 2026, presenting a policy window for the Authority to adopt cost based pricing that could lower consumer costs.

Google withdrew its appeal in a major dispute over compliance with Uganda’s Data Protection and Privacy Act of 2019. Four complainants had accused Google of failing to register with the Personal Data Protection Office and transferring data abroad without approval. Google initially argued that the law did not apply because it had no physical presence in Uganda. The PDPO rejected that claim and issued binding compliance directives. Google then appealed to the Minister of ICT but later withdrew, which leaves the PDPO’s orders intact and reinforces Uganda’s enforcement authority.

The Supreme Court ended a 13-year tax battle between Absa Bank Kenya and the Kenya Revenue Authority. The Court ruled that fees paid by local banks to Visa, Mastercard, and American Express are not royalties. They are operational charges for accessing global payment networks. The Court also held that interchange fees are settlement costs and not management or professional fees. The ruling voids withholding tax demands and prevents double taxation. Banks avoid large backdated tax bills. Consumers may also benefit from lower transaction costs.

The Treasury is considering launching the National Infrastructure Fund through the national budget instead of a dedicated law, even though the fund is expected to manage hundreds of billions. The proposal is part of a KES 4 trillion plan covering energy, irrigation, roads, rail, and airports. Funding would come from partial sales of state-owned enterprises, the national budget, private capital, and public private partnerships. Analysts warn that skipping a specific statute risks weak governance. Kenya is turning to domestic financing as public debt hit KES 11.5 trillion and crossed 67% of GDP.

The National Assembly adopted the report on Kenya’s new double taxation agreement with Singapore. The treaty was signed in September 2024, approved by Cabinet in February 2025, and gazetted in May 2025. It replaces the 2018 agreement and lowers withholding tax rates on dividends, interest, royalties, and technical fees. It also keeps Kenya’s right to tax capital gains when more than half of a company’s value comes from Kenyan property. The treaty will take effect once both countries exchange ratification instruments.

Kenya has asked China to renegotiate the Standard Gauge Railway escrow account terms that bar use of SGR revenues for loan repayment until a high minimum balance is reached. The account has never met the threshold, so the KSh 112.08 billion in revenue generated since 2017 has not been applied to debt service. As a result, taxpayers shoulder loan repayments while arrears grew to about KSh 413.36 billion by June 2025. Kenya has converted three SGR loans from United States Dollars to Chinese Yuan to lower annual interest costs by roughly US$215 million.

The Consumer Federation of Kenya (COFEK) has filed a lawsuit to block NSSF’s sale of its 27% stake in East African Portland Cement to Tanzania’s Kalahari Cement. COFEK argues the deal threatens national economic interests and compromises transparency. The respondents include CMA, CAK, NSSF, Kalahari, EAPC, and the Attorney General. The court has combined COFEK’s case with a similar one by COTU, with a hearing scheduled for January 27, 2026. A parliamentary committee has also flagged potential undervaluation and regulatory lapses, making this sale a high-stakes legal obstacle

The High Court invalidated the government’s attempt to abolish the National Council for Nomadic Education in Kenya, ruling that the move violated the Constitution, the rights of children in marginalised nomadic regions and the requirement for public participation. The government relied on a circular from the Head of Public Service to disband a council that was established by an Act of Parliament, which the court said is unlawful. The state did not file a defence, strengthening the petitioners’ case. The ruling requires full restoration of funding, staffing and programming for the council. It adds to a growing list of austerity measures overturned by the courts.

The Democratic Republic of Congo and Rwanda formalised a U.S. brokered peace agreement in Washington that commits both countries to a ceasefire, disarmament and reintegration of armed groups, as well as frameworks for refugee returns and regional cooperation. U.S. mediation included economic initiatives tied to critical minerals access. Several African leaders attended the ceremony, yet reports of fighting in eastern DRC continued. Both sides traded accusations over rebel backing. Observers warn that without credible on the ground action, the deal’s promises risk remaining aspirational.

The High Court in Kenya stopped the Attorney General and the State Corporations Advisory Committee from taking over human resource functions in state corporations and public universities. The court said the Public Service Commission holds constitutional authority over HR structures, recruitment, and appointments across the public service. It invalidated the AG’s 2023 advisory and SCAC’s circular because they attempted to remove PSC oversight without legal basis. The ruling also struck down Section 5(3) of the State Corporations Act for contradicting the Constitution of Kenya. The judgment restores PSC control and ends months of conflicting directives.

Kenya and the United States signed a USD 2.5 billion health cooperation framework and a separate data sharing pact that shifts development support from donor-driven projects to a direct government partnership. The United States committed up to USD 1.6 billion for HIV, TB, malaria, and maternal health programs. Kenya will increase domestic health financing and eventually absorb donor-funded workers. Public concern grew over data access, which led officials to publish the agreement. The government says only anonymized and aggregated data can move across borders under the Data Protection Act and the Digital Health Act.

Benin’s President Patrice Talon announced that security forces stopped a coup attempt after soldiers briefly claimed they had taken control. Gunfire erupted in Cotonou as eight soldiers appeared on state television announcing a takeover. Loyal forces quickly retook key installations and arrested fourteen suspects. Nigeria provided air and ground support at Benin’s request, and both ECOWAS and the African Union condemned the attempted coup. The mutineers cited insecurity in the north and the treatment of fallen soldiers. The incident heightens political tension ahead of the April 2026 presidential election.

The Employment and Labour Relations Court in Kenya held employers cannot deduct Standard Health Insurance Fund contributions or the Housing Levy from compensation awarded for unfair termination because those levies apply only to active employment. The case involved an award of KSh 2.8 million to a former employee whose employer made several deductions. The court clarified that only Pay As You Earn tax applies to such awards because compensation counts as taxable income. Employers must refund unlawful deductions and follow the decision as binding precedent.

The National Assembly’s Departmental Committee on Trade reviewed allegations that foreign companies exclude Kenyan transporters and found no evidence of deliberate discrimination. The Committee relied on data from the Competition Authority of Kenya and contract reviews that showed most contracted transporters are locally owned. A proposal by the Kenya Transporters Association for a 60 percent local quota was rejected as incompatible with competition law and international trade commitments. The Committee urged continued monitoring by the Competition Authority of Kenya rather than quota protection.

Sudan’s Rapid Support Forces seized the Heglig oilfield after the Sudanese Armed Forces withdrew to avoid damaging the site. Heglig is Sudan’s largest producing field and the main processing hub for South Sudan’s exports. An engineer confirmed production has stopped and workers have moved to South Sudan. The takeover means Sudan has now lost both major oil regions to the RSF, which is a severe blow to state revenue. The RSF says the capture strengthens its control over Kordofan after it consolidated Darfur last month.

Kenyan Parliament approved the mediated version of the Coffee Bill of 2023 and sent it to the President for assent. The Bill would restore the Coffee Board of Kenya as a standalone regulator and separate the Coffee Research Institute from KALRO. The Board would issue warehouse licences and nursery certificates with county input, while the Capital Markets Authority would license marketing agents and traders. The Bill introduces a 2.5% Coffee Development and Marketing Levy for research and marketing. It also supports direct payments to farmers and limits administrative deductions.

Kenya Power must pay KES 20 million in general damages after the Environment and Land Court found it illegally installed high voltage lines on a Nyeri couple’s property without their consent. The court said the company violated the Energy Act, which requires written approval from landowners. A 2021 letter from Kenya Power’s Nyeri manager admitted the line sat half a meter inside the property. The judge ordered removal of the posts and cables and awarded legal costs. Claims for lost profits and professional fees were dismissed for lack of evidence.

The Kenya Ministry of Interior plans a major shakeup of passport services in an effort to end the long queues at Nyayo House. Officials want new processing centres in Westlands, Upper Hill, Makadara, Athi River, Kiserian and Thika. They also want fresh stations in Malindi, Voi, Kwale, Isiolo, Machakos, Lodwar, Narok and Siaya. The goal is to push services closer to applicants, cut travel costs and break Nairobi’s monopoly over passport processing. The ministry expects faster turnaround times once the decentralisation takes effect.

The National Assembly approved Sessional Paper No. 5 of 2023 to strengthen protections for Kenyan migrant workers and expand foreign employment pathways. The policy promotes safe and orderly migration, calls for stronger bilateral labour agreements, and supports pre-departure training through a new government curriculum. It also pushes for better data collection and improved coordination across agencies. A Labour Migration Management Bill is under development to regulate recruitment agencies. The policy responds to rising reports of abuse in the Middle East and aims to raise remittances and skills transfer.

The Office of the Data Protection Commissioner found Platinum Credit Limited repeatedly sent loan calls and text messages to Samuel Kamau Waweru without his consent. Investigators also concluded the firm provided false information during the probe. The Data Commissioner, Immaculate Kassait, ordered KES 400,000 in compensation and issued an enforcement notice. She recommended prosecutors consider charges against company directors for misleading the regulator. The ruling stresses that the Data Protection Act and constitutional privacy rights require explicit consent for direct marketing.

The Law of Contract Amendment Bill of 2025 seeks to let judges cancel agreements with oppressive or one-sided terms. Kenyan Courts would gain authority to nullify unfair clauses in consumer and standard form contracts, especially those that limit liability for defective goods or try to force customers to accept negligent risks. The bill also tackles hidden imbalances in template contracts by allowing courts to void terms that are not reasonably necessary to protect a business’s interests. Parliament is reviewing the bill and its potential to reshape commercial and consumer contracting.

The Court of Appeal issued conservatory orders stopping any transfer, charge or subdivision of the disputed Mavoko property at the center of a fight between Erdemann Property Limited and Credit Bank Limited. Erdemann argues the land was undervalued by almost KES 900 million and claims the bank acted as both the seller and the buyer during the auction, which it says raises illegality and conflict of interest. The judges agreed the issues are weighty and that Credit Bank Limited may be unable to compensate Erdemann Property Limited if the appeal later succeeds. The court directed that the appeal be heard within sixty working days and ordered all parties to maintain the status quo.

The Court of Appeal upheld an arbitral award arising from Geothermal Development Company’s fallout with LanTech Africa Limited over a 2013 drilling contract at the Menengai geothermal field. The dispute centred on unpaid invoices, delays and contract variations that LanTech Africa Limited said GDC ignored despite repeated notices. GDC tried to overturn the award four months after the statutory deadline, which made its challenge incurably defective. With interest now accumulated, the award stands. Garnishee orders against the Geothermal Development Company’s accounts can proceed, finally pushing the decade-long fight toward closure.

The High Court dismissed a 12-year challenge to Kenya Commercial Bank’s sale of a 67-acre farm, finding the bank complied with statutory sale procedures after the borrower defaulted. The borrower claimed fraud, undervaluation, and breach of an injunction issued a day before the auction, but the court found no credible evidence. KCB produced notices, valuation documents and adverts for the sale. The court also ruled the in duplum interest cap did not apply because the loan predated the rule. The auction stands and the purchaser retains title.

UNTIL NEXT TIME…

Stay curious, stay inspired, and keep questioning everything. Catch you next week!

The Waswa Brief | Valarie Waswa & Co. Advocates

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