The matter of lawyers acting as local representatives of foreign companies in Kenya has become a hot topic since the enactment of the Companies Act, 2015.
Despite these enhanced obligations and penalties, nowhere does the law suggest that the local representative, by virtue of that role only, is liable for the criminal activities of the foreign company or its directors in the absence of evidence directly linking him to such activities.
Although the High Court rightly quashed the prosecution of the lawyer in the above case, the language employed in the judgment could have been more robust to clarify whether the mere fact of being the local representative (as opposed to a director) of a foreign company necessarily makes one a candidate for prosecution for offences allegedly committed by the company.
While stating correctly that like everyone else lawyers are not immune to prosecution, the court went ahead to state that they are liable to prosecution for offences committed by companies in which they serve as directors or local representatives or where the evidence shows that they were involved in the matters forming the subject matter of the prosecution.
Until the position is categorically clarified to provide greater comfort, commercial lawyers who are frequently asked by foreign companies to act as their local representatives will continue to walk on eggshells as investors find fewer willing takers for this mandatory role.
