Category: Business Daily

Every few months, we wake up to the same headlines-collapsed buildings, cracked roads, and washed-out bridges. The conversation quickly turns to who approved the project, but rarely to what lay beneath it. The truth is that many of these failures begin long before the first brick is laid-when we ignore the ground itself.

Across Kenya and much of the developing world, ground science and engineering assessment remain the most undervalued elements of infrastructure planning.

The subsurface -where soil, rock, and groundwater interact-determines whether a structure will last decades or fail after a single season. Yet, in many projects, site investigations are treated as an afterthought, rather than a foundation for design and safety. In my work as a professional engineer, geoscientist, and project management professional, I have seen how early attention to the ground transforms outcomes.

On major infrastructure projects in Canada, Asia, and East Africa, design begins with a thorough understanding of local geology. This upfront investment consistently reduces risks, shortens construction timelines, and saves enormous costs that would otherwise go into repairs and litigation.

By contrast, when ground studies are rushed or omitted, problems emerge later in the form of foundation settlement, cracking, or drainage failure.

We then blame contractors or design teams, when the real issue often lies in the systemic neglect of subsurface science. Studies show that up to 20 percent of infrastructure spending in developing regions is lost to premature failure and repair – a burden that taxpayers ultimately bear.

Three issues drive this pattern. First, ground data is undervalued- investigations rarely exceed three percent of project cost, yet they determine structural integrity.

Second, coordination is weak-engineers, planners, and geologists often work in isolation. Finally, enforcement is inconsistent, even where regulations require engineering assessments.

To change this, Kenya must place engineering geology and geotechnical insight at the centre of infrastructure policy.

That means mandating thorough ground investigations before design approval, promoting the use of modern assessment technologies, and building stronger collaboration between engineers and geoscientists. Policymakers must also recognise that the earth beneath us is a living system – it shifts, absorbs water, and responds to stress. Ignoring these realities guarantees failure.

Infrastructure is the backbone of our economy, but foundations are its heartbeat. Until we start building with the ground – not against it – we will keep rebuilding what should never have failed.

The Treasury has raised concern over the lack of integration and ownership of revenue collection systems across county governments, warning that the gaps pose data breach and revenue leakage risks.

An assessment of county public financial management contained in the Treasury’s 2025 Budget Review and Outlook Paper (BROP) notes that the majority of county governments continue to use unintegrated revenue collection platforms, many of which are operated by third-party service providers.

The dispute traces back to October 2009, when Krish Commodities Limited filed six trademark applications: Wali Basmati Rice, Rouz Basmati Rice, Pilau Basmati Rice, Nawab Basmati Rice, Rajah Basmati Rice and Al-Hannan Basmati Rice.

Each application incorporated the words ‘Basmati Rice’ but expressly disclaimed exclusivity over at least the elements ‘Basmati’ and ‘Rice.’

In 2010, the Agricultural and Processed Food Products Export Development Authority (APEDA) lodged notices of opposition before the Registrar of Trademarks.

It argued that ‘Basmati’ is a geographical indication (GI) referring to a distinctive long-grain aromatic rice cultivated in specific regions of India and Pakistan.

APEDA further contended that registration of these trademarks in Kenya would be misleading to consumers and unfairly exploit the reputation associated with Basmati rice. The Registrar of Trademarks dismissed the oppositions, finding that APEDA had failed to establish any proprietary rights in Kenya or to prove that the use of ‘Basmati’ in the composite trademarks would mislead consumers.

The High Court upheld the registrar’s decision in 2017 but went further in two important respects. First, it clarified that APEDA’s status as a statutory authority in India, charged with promoting agricultural exports, does not in itself confer proprietary or enforceable rights in Kenya.

Second, it observed that, at the time APEDA filed its opposition, ‘Basmati’ had not yet been registered as a geographical indication even in India, further weakening the agency’s claim to exclusive rights abroad. These additions provided greater legal and factual depth to the registrar’s findings and underscored the challenge of asserting cross-border GI rights without domestic recognition.

The Court of Appeal has now affirmed that outcome, maintaining that APEDA lacked a legal basis under Kenyan law to prevent registration.

The key issue for consideration was whether, under Kenyan law and Kenya’s international obligations, particularly the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), ‘Basmati’ qualifies as a geographical indication, and if so, whether its use in composite trade marks can be barred without prior domestic registration or recognition.

The Court of Appeal dismissed the appeal, affirming the decisions of both the Registrar of Trademarks and the High Court. While the court acknowledged that ‘Basmati’ may satisfy the TRIPS Agreement definition of a geographical indication, it held that determining whether ‘Basmati’ qualifies as a GI under Kenyan law was not a question to be resolved in the abstract nor for the first time on a second appeal.

The court emphasised that any recognition of ‘Basmati’ as a geographical indication in Kenya must follow the statutory pathway prescribed under Section 40A of the Trademarks Act, rather than being addressed indirectly in opposition proceedings to a trademark application.

In its analysis, the court accepted that Kenya is bound by its TRIPS obligations to provide protection for geographical indications and to refuse or invalidate misleading trademarks.

However, it reiterated that TRIPS is not self-executing in Kenya and must be implemented through national legislation. Section 40A (5) of the Trade Marks Act gives effect to these obligations by creating a framework through which geographical indications may be registered as collective or certification marks, enabling questions of scope, control, and use to be properly assessed.

Because ‘Basmati’ had not been registered or formally recognised as a GI in Kenya, APEDA lacked any legal basis to oppose Krish Commodities’ trademark applications.

The court observed that the respondent had disclaimed exclusive rights to the term ‘Basmati’, found no evidence of confusion or deception, and noted that the term had become descriptive in Kenya, commonly referring to long-grain aromatic rice, including local varieties. The court dismissed the appeal in its entirety with costs.

The judgment reinforces Kenya’s territorial approach to intellectual property rights, making it clear that foreign GIs, even those that are internationally recognised, require domestic registration or formal recognition to attract protection.

The decision cements consistent deference to Kenya’s statutory framework, which currently channels GI protection through the Trade Marks Act rather than international instruments.

The case illustrates that Kenyan courts are unlikely to interpret TRIPS directly or expansively, preferring to rely strictly on the domestic legal architecture. For brand owners and foreign producers, the judgment underscores the importance of proactive local registration strategies not only for GIs but for any form of intellectual property rights whose protection originates outside Kenya.

Notably, the Court of Appeal’s reference to the ‘Geographical Indications Act (2019)’ is a factual inaccuracy, as no such Act has been enacted. The Geographical Indications Bill, first introduced in 2019, remains pending. The only operative framework continues to be section 40A (5) of the Trade Marks Act.

GIs are a strategic tool for Kenya’s agricultural sector, offering a pathway to enhance rural development, protect local heritage, and boost export competitiveness.

GIs also promote sustainable farming practices and empower communities by linking product quality to origin, making them a powerful instrument for inclusive economic growth and international market positioning.

For policymakers, it serves as a reminder of the urgent need to enact and operationalise Kenya’s long-delayed GI legislation to align the country’s regime with international best practice and to provide greater certainty for traders and producers.

Until Kenya enacts and implements its Geographical Indications law, GI protection will remain dependent on registration under the Trade Marks Act, and the courts will not infer protection from international instruments such as TRIPS.

Will APEADA take the fight to the Supreme Court? That remains to be seen especially after the Court of Appeal stumbled over a law that is not even in force yet.

Can a contractor pursue insolvency proceedings where the debt is disputed and an arbitration clause exists? This was the central issue before the Court of Appeal in Kwale International Sugar Company Limited versus Epco Builders Limited and two others [2025] KECA 227 (KLR), a case with implications for contractors, employers and legal practitioners navigating construction disputes.

In 2012, Kwale Sugar contracted Epco Builders (Epco) to build a factory under a Sh2.22 billion engineering, procurement and construction agreement.

A dispute arose over alleged non-payment of Sh712 million. Epco issued a statutory demand and later filed an insolvency petition seeking liquidation of Kwale Sugar. Kwale Sugar applied to set aside the demand and strike out the petition, arguing that the debt was genuinely disputed; the parties were bound by an arbitration clause; and the demand was defective under the insolvency regulations.

The High Court dismissed the application. On appeal, the Court of Appeal upheld the outcome but clarified important legal principles at the intersection of insolvency law and construction contracts.

Kwale Sugar had cited personal bankruptcy provisions instead of the corporate insolvency rules. The court found this error non-fatal, confirming that courts will prioritise substance over form in the absence of prejudice.

The Court of Appeal criticised the High Court’s remarks that the debt was undisputed, noting that such conclusions should be reserved for full hearings or arbitration. Courts should be cautious not to prejudge contested issues during interlocutory proceedings.

While acknowledging the existence of the arbitration clause, the court held that it does not oust the jurisdiction of insolvency courts.

Insolvency proceedings are collective in nature and serve a public interest function that may override private dispute resolution arrangements.

The court held that defects in the statutory demand, such as form irregularities, will not invalidate it unless actual prejudice is demonstrated. In this case, no prejudice was shown.

For contractors, certificates are persuasive but not talismanic. Their legal effect depends on the contract’s terms, and they will not cure fundamental issues of non-compliance, missing support or unresolved set-offs. Insolvency should be reserved for clear cases of non-payment, not deployed as leverage in a live valuation dispute.

The message to debtors is equally clear: a technical objection is strongest when coupled with a coherent evidentiary record showing why the sum claimed is not presently due under the contract.

Debt disputes must be resolved on merits, not prematurely at interlocutory stages. Arbitration does not override insolvency jurisdiction, especially where the debt is not genuinely contested.

Genuine disputes on substantial grounds must be resolved through appropriate forums like arbitration or full trial. Form defects in statutory demands will not invalidate proceedings unless actual harm is proven.

The consequences are practical. For employers, an arbitration clause is valuable only if it is invoked promptly and carried on the back of documentary substance, such as engineer or architect determinations, measurement records, variation orders, defect notices, correspondence evidencing reconciliation and a credible set-off schedule.

Paying the undisputed slice protects credibility and undercuts any narrative of inability to pay, while reserving genuine disputes for the agreed dispute-resolution forum. For more on what constitutes a genuine dispute, see our previous alert here.

For project owners, contractors and funders, the case reinforces the value of disciplined paperwork: interim payment certificates (IPC) packs tied to contract mechanisms, site diaries, measurement sheets, variation order (VO) approvals, notices and reconciliations. In a payment standoff, those records, rather than the insolvency court, will decide who ultimately pays whom, and how much.

The Kwale Sugar decision reinforces the principle that insolvency proceedings must be reserved for clear cases of inability to pay and cannot be used as leverage in unsettled construction disputes.

It also clarifies the boundaries between private dispute resolution mechanisms and public insolvency processes. Where debts are genuinely disputed on substantial grounds, the appropriate forum remains the agreed dispute resolution mechanisms, not the insolvency court.

Kenya is at a pivotal juncture in shaping its future economic relationship with the United States. With the African Growth and Opportunity Act (Agoa) extended by only one year and ongoing plans for a bilateral trade agreement, the country has a unique opportunity to reposition itself as a strategic and indispensable partner to the US.

This moment requires Kenya to adopt a negotiation approach that aligns with the current American trade philosophy, particularly that of Donald Trump’s transactional and ‘America First’ outlook, which emphasises clear, measurable benefits for the US economy.

This past weekend, orchid collectors and enthusiasts gathered for the much-anticipated Annual Orchid Show at the Sarit Centre.

This year’s blooms were nothing short of lush, vibrant, and bursting with colour. Shades of purple, yellow, white, and green transformed the exhibition hall into a miniature jungle.

Safaricom has failed to settle a suit in which it sought to block the sale or transfer of stolen personal data belonging to 11.5 million subscribers.

Two former managers at Safaricom allegedly accessed and shared data, including customer names, phone numbers, birth dates, subscribers’ location, gambling records, passport and ID numbers with a businessman, Benedict Kabugi, for sale to a top sports betting firm.

Kenya Airways and Qatar Airways have signed an agreement to market each other’s flights, a move that will expand access for their clients to 19 destinations in Africa and Asia.

The codeshare deal began on Monday, and flights operated by the two airlines becoming available from October 26.

Ten Nairobi Securities Exchange (NSE) listed firms have failed to submit their corporate event calendars, contravening the rules that were introduced to enhance transparency for investors.

The NSE latest corporate calendar shows the list of firms that have failed to make the disclosures are East African Portland Cement, Eveready East Africa, NewGold Issuer (RF) Limited, HomeBoyz Entertainment and Housing Finance Group.

The High Court has dismissed a borrower’s appeal to block Mayfair Bank from demanding payment of a Sh9.8 million disputed loan that was allegedly settled through the sale of securities valued at Sh27 million, affirming the lender’s right to recover outstanding debts even after auctioning collateral.

In a judgment delivered by Justice Linus Kassan, the court ruled that N.T. Express Laundromat Ltd and its director, Mourine Wanjiku, failed to prove allegations of misrepresentation or procedural irregularities in a 2020 consent agreement that bound them to repay the debt.