HIGHLIGHTS ANTI-MONEY LAUNDERING AND COMBATING OF TERRORISM FINANCING LAWS ACT, 2023

 

	ANTI-MONEY LAUNDERING AND COMBATING OF TERRORISIM FINANCING LAWS ACT, 2023
Preamble	ACT of Parliament to amend the laws relating to anti-money laundering and combating of terrorism and proliferation financing; and for connected purposes.
Anti-Money Laundering and Combating of Terrorism Financing Laws Act, 2023 S.2	Amendments of existing laws  The Law has amended some of the existing clauses under which a number of legal entities in Kenya are established and/or regulated, i.e State Corporations Act (Cap. 446) Capital Markets Act (Cap. 485A), Insurance Act (Cap. 487) Banking Act (Cap. 488) Central Bank of Kenya Act (Cap. 491) Microfinance Act (No. 19 of 2006),  Limited Liability Partnership Act, 2011 (No. 42 of 2011),  Companies Act, 2015 (No. 17 of 2015).
Banking Act S.2   Central Bank Act S.2 Microfinance Act (No. 19) S.2 National Payment System Act S.2	The section regarding "significant shareholder" has been removed/altered and substituted with the following: The term "beneficial owner" now holds the meaning ascribed to it in the Companies Act, 2015.
Banking Act (Cap. 488) S. 33 D Central Bank of Kenya Act (Cap. 491) S. 51 A. Microfinance Act (No. 19) S.36B  Banking Act (Cap. 488) S.33 (E) Central Bank of Kenya Act (Cap. 491) S. 51 B.	The Central Bank of Kenya has been tasked with the responsibility to regulate and combat anti-money laundering. The Central Bank shall regulate, supervise, and enforce compliance for anti-money laundering, combating the financing of terrorism, and countering proliferation financing purposes by all reporting institutions regulated and supervised by the Central Bank and to whom the provisions of the Proceeds of Crime and Anti-Money Laundering Act, 2009 apply. (2) The Central Bank may— Vet proposed significant shareholders, proposed beneficial owners, proposed directors and senior officers of a reporting institution(s) Conduct onsite inspection Conduct off-site surveillance Undertake consolidated supervision of an institution and its group; Compel the production of any document or information  Impose monetary, civil or administrative sanctions for violations related to anti-money Issue regulations, guidelines, directions, rules or instructions for anti-money laundering, combating the financing of laundering, financing countering financing purposes, terrorism proliferation purposes; Corporate information and countering financing and share for anti-money combating the terrorism or proliferation laundering, financing of terrorism, and countering proliferation financing purposes. New penalties for violations relating to money laundering and terrorism financing have been imposed for non-compliant legal persons/entities. (2) A person who violates or fails to comply with the provisions of subsection shall be liable— (a) in case of a legal person, to a penalty not exceeding twenty million shillings; (b) in the case of a natural person, to a penalty not exceeding one million shillings; and (c) to additional penalties not exceeding one hundred thousand shillings in each case for each day or part thereof during which such violation or non-compliance continues.
Anti-Money Laundering and Combating of Terrorism Financing Laws (Amendment) 13(4) (c)	Companies are required to comply with disclosure of company beneficiaries Under the Anti-Money Laundering and Combating of Terrorism Financing Laws (Amendment) No. 10, company secretary” has the meaning assigned to it of any under the Certified Public Secretaries of Kenya Act, 1988; Companies will be required to enter a statement of the particulars in respect of each beneficial owner(s) of the proposed company in accordance with Section 16A of this Act. 16A. (1) The applicant for registration shall ensure that the requisite statement of particulars of the company's beneficial owners complies with beneficial owners shall contain— (a) the required particulars of anyone who is a beneficial owner; and (b) any other matters that, on incorporation, shall be required to be entered in the company's register of beneficial owners under this Act. (d) in the case of a nominee director, the fact that they are nominees and the particulars of their nominator. (e) contains information as to whether any shareholder is a nominee and the particulars of their nominator.
Companies Act,2015  S.93 A (1-12) S.95 S.138 A S.904	Compliance measures This section (93A) outlines the requirements for companies to maintain a register of their beneficial owners. It specifies the information to be included, the timeframe for submitting the register to the registrar, and potential penalties for non-compliance. Beneficial owners—Companies must submit the register within specified periods as outlined in (S.95) of  and as follows: (a) in the case of a proposed company, when submitting documents as provided for under section 13 of this Act; and (b) in the case of existing companies, within sixty days of coming into force of this section. The registrar has the discretion to extend these periods. Amendments to the register must also be promptly lodged. Failure to comply may result in administrative penalties, and persistent non-compliance can lead to further penalties or fines upon conviction.  Additionally, companies are obligated to retain records of beneficial owner information for at least ten years (S. S.904 A) This section imposes penalties for non-compliance by a company and its officers. Failure to meet the requirements of subsections 5 or 6 results in an initial administrative penalty of two thousand shillings. If non-compliance persists, the company and its officers face additional daily penalties of one hundred shillings.  Furthermore, failure to comply with subsection (3)(b) is considered an offence, leading to fines upon conviction for both the company and the defaulting officers.

When does the 90 day’s Statutory Notice start counting?

 When does the 90 day’s Statutory Notice start counting?

The basic rule is that a plaintiff must  serve the  defendant  within 90 days of filing the complaint or risk dismissal of their case. The defendants must also demonstrate that they are in receipt of the documents, this is called a  return of service. It is proof to the court that the defendant knows about the case. If the chargor does not comply within 90 days after the date of service of the notice, the 90 day starts counting and  the chargee may exercise any of the following remedies:-59 sue the chargor for any money due and owing under the charge.

Gazette Notice No. 3137 - Practice Directions For The Protection Of Judges, Judicial Officers, Judiciary Staff, Other Court Users And The General Public From The Risks Associated With The Global Coronavirus Pandemic

Gives no specific timelines on when the days start  tickling, it only gives guidelines on Service of documents and the court process behind it:  During this period, parties are directed, whenever possible and unless otherwise directed by the court, to serve court documents and processes through electronic mail services and mobile enabled messaging applications as provided for under Order 5 Rules 22B and 22C of the Civil Procedure Rules.

Gazette Notice No. 2357 Practice Directions On Electronic Case Management

This Notice only captures only the use of Electronic Service where a document is required to be served on a person, service may be effected by electronic means through the address contained in the electronic system.

(5) Service of documents shall be deemed to have been made, if a notice of electronic filing is posted into the other party's  account and an affidavit of return or return of service need not be filed in court. ( this does not specify when the date of  notice starts counting) (6) It shall be the responsibility of the filer to review the notice of electronic filing to ensure that all parties that require service have received it.

Order 5 of the Rules of Civil Procedure Rules 

Service is deemed to have been done if a notice is furnished by delivering a set of court documents to the person to be served.

-Proper service of process initially establishes personal jurisdiction of the court over the person served. If the defendant ignores further pleadings or fails to participate in the proceedings, then the court or administrative body may find the defendant in default and award relief to the claimant, petitioner or plaintiff.

MPSR

 S 67(3) If the grantor does not comply within the time period indicated in the notification after the date of service of the notification, the secured creditor may— (a) sue the grantor for any payment due and owing under the agreement.

-Moreover, in Moses Kimaiyo Kipsang v Geoffrey Kiprotich Kirui & 2 others [2022] eKLR, the plaintiff noted that the defendants were served with all the pleadings summons on 4/12/2019. According to him, they were received by the defendants. He annexed an affidavit of service of the documents and copies of the signed documents by the defendant acknowledging receipt, marked as MKK2 and MKK3 respectively. Dismissing the appeal, the court held that mere words of a strong or formidable defense without demonstrating what that strength or formidability is, are mere void words which cannot amount to a defense raising triable issues as the law provides-Proof of service.

Land Act No.6 of 2012

Section 90 (1) and (2) notes that if the Chargor defaults in any obligation under the charge or fails to pay any money due under the charge, the Chargee shall issue a statutory notice of not less than three months.

Land Registration Act 2012

Under Section 56(2), where the date of payment of the money secured by a charge has not been specified or has passed without demand being made, the money becomes payable 3 months after service of a written notice of demand by chargee to chargor.

The Court in the case of Cieni Plains Company Limited & 2 others v Ecobank Kenya Limited  discussed the nature of the three months statutory redemption notice as follows:- A statutory notice issued under section 90(2) of the Land Act, triggers the security realization process, which leads to the chargee ultimately exercising its remedies outlined under section 90(3). 

-Land Act obligates the chargee to firstly state  the nature and extent of default and Secondly, where the default consists of non-payment to  state the amount required to be paid within three months for the purposes of making good the default or where the default is non observance of a covenant in the charge, then the notice is to state what the chargor is to do or desist from doing so as to rectify the default. 

 

- Thirdly, the notice ought to state the fact that if the default is not rectified within the time stated in the notice, then in the above case -the chargor would thereafter sue for money due and owing under the charge, appoint a receiver of the income of the security property, lease the security property, enter into and keep possession of the security property or sell the security property. 

- The fourth and final requirement under section 90 is that the notice needs to state that the chargor has the right to apply to court and seek any relief or challenge the exercise by the chargee of any of the statutory remedies. The notice crystallizes after the expiry of ninety days from the date it is received by the chargor.”