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Your business and the law

 Ombo Malumbe, co-founder and partner at Ong’anya Ombo Advocates. [File, Standard]

Wakili, a quick one …. This has since become a popular catchphrase among Kenyans when soliciting legal advice.

But antics aside, for centuries, lawyers have played a key role in society – if you have a business, accident, filing a divorce or have been accused a crime, you will need them.

Most business owners don't hire a lawyer or fear retaining one owing to costs, however, this can make a company vulnerable on many areas. 

But why is it important for businesses to have a lawyer on call?

“For a good experience, a lawyer keen to understand your business or life is the best you can have on call. This makes ready to address issues on a preliminary or comprehensively depending on the matter in question,” explains Ombo Malumbe, co-founder and partner at Ong’anya Ombo Advocates.

Ombo and his partner Jack Ong’anya run a business law firm and spoke to Enterprise on their journey and also how businesses can protect themselves legally.

The award-winning law firm has so far advised on transactions worth about Sh654.5 billion ($5.5 billion). These include in the oil and gas industry, mergers and acquisition, intellectual property, regulatory compliance, tax, cybercrime, data protection and white collar crime, among other issues affecting companies.

When picking a lawyer for your business the partners advise businesses to consider factors like knowledge, accessibility, responsiveness, transparency, practical solutions, and dedication.

What have been some of the key regulatory developments in company law?

In a simplistic form, this should refer to the Companies Act 2015, compared to laws that operationalises companies.

Since the emergence of the Covid-19 pandemic, there have been many regulatory developments. One that might have gone unnoticed is that the Companies Act was amended by deleting the statutory use of company seals. This development has made it easy to transact as a company and can open doors to certain operational risks.

What about data privacy and cybersecurity? And some of the breaches that businesses should be aware of?

Kenya has been envisioning having data protection laws for many years. The Data Protection Bill that has been a subject of discussion for years, was passed into law on 8 November 2019 when the President assented to it.

Data protection is a significant development in the regulatory framework. However, you can confirm that you still receive spam messages on various products you have not subscribed to.

It shows how most companies are unaware of the Data Protection Act application or the implications of not complying with that law. Even major companies are facing these challenges. The data protection laws apply to an organisation or individual’s operations internally and externally and touch on virtual, hardcopy data or related materials. The collected data is also interlinked with other laws that require keeping data for a certain period. When advising on similar issues, our team engages the clients’ team, including the back-end developers, with their solutions for streamlining the operations. Data Protection laws are more practical than theoretical.

Kenya is quite active on the start-up scene. How well legally protected do you think these start-ups are?

In reference to this question, we can generally split it into two categories - the local start-up and foreign start-up, whereby the former is less concerned with essential matters like contracts or intellectual property unless the company is about to receive capital from an entity that is entirely keen on such issues.

It is understandable that most local start-ups operate at a low budget and would prefer directing the little they have on what is, subjectively, considered essential. However, such start-ups must consider regulatory compliance and thorough documentation. 

Tell us about your work in intellectual property (IP)

We have various solutions models touching on intellectual property, including domain name disputes, which violate another person’s trademark. While we have had success in advising pro se clients on matters before Alternative Dispute Resolution (ADR) Forum (USA) concerning domain disputes and providing pointers on a dispute concerning a trademark before The Trademark Trial and Appeal Board (TTAB) at the United States Patent and Trademark Office (USPTO), we have found that most businesses in Kenya, mainly Kenyan owned, companies are not keen on dedicated brand protection services.

Our service on IP is more on transactional advisories, litigation, and a minor percentage on registration of the IP with the likes of the Kenya Copyright Board (KECOBO), Kenya Industrial Property Institute (KIPI), and now Anti Counterfeit Authority (ACA). Advisories on intellectual property pricing while factoring in intellectual property transfer pricing rules at the local and international level, licensing, selling, among others.

Do you help foreign investors set up locally? What are the key economic areas are they eyeing?

We help foreigners invest in Kenya and model the solutions based on their interests, for instance, end-to-end services or merely registering an entity. It is essential to understand the market and figure out a suitable model to access it, including corporate structuring, tax structuring, employer-employee structuring, corporate immigration, and convenient locations to set up. Our value-added services include highlighting key factors like suitable real estate companies and academic facilities that those relocating with family can consider. The number of clients that have engaged us are keen on products regulated by the Central Bank of Kenya, Communication Authority, Capital Markets Authority, Betting Control and Licensing Board, and Ministry of Petroleum and Mining.