Part B of a Series: The Kenya Intellectual Property Authority Bill, 2026
The merger, in truth, is the easy part. Whether this reform delivers a single window or a decade of transitional litigation will be settled in the provisions that attract no press coverage at all: the savings and transitional clauses, the enforcement architecture, the funding model, the treaty plumbing and the fact that two other intellectual property Bills are moving through the system at the same time, sponsored by the very agencies this Bill would abolish.
THE CONSOLIDATION IS INCOMPLETE: WHAT STAYS OUTSIDE THE SINGLE WINDOW
The Bill is presented as producing one authority for the whole of intellectual property. Several rights that any commercial portfolio contains sit wholly or partly outside the three consolidated statutes.
Rights that remain elsewhere
- Geographical indications: on a separate legislative track, as noted above.
- Plant breeders’ rights and plant variety protection: administered under the Seeds and Plant Varieties Act (Cap. 326), through the Kenya Plant Health Inspectorate Service. Agribusiness clients will continue to hold a portfolio split across two regulators.
- Trade secrets and confidential information: uncodified in Kenya, protected through contract and equity. A consolidating statute that is silent on them leaves the fastest-growing category of commercially sensitive intangible asset outside the new architecture altogether.
- Technovations and integrated-circuit layout designs: categories presently dealt with under the industrial property framework whose treatment in the consolidated text should be confirmed clause by clause rather than assumed.
THE COLLECTIVE MANAGEMENT CRISIS THE NEW AUTHORITY WOULD INHERIT
Of everything the new Authority is to take over, nothing is more combustible than the supervision of collective management organisations. This is not a theoretical risk. The regulator whose functions are to be transferred is, at this moment, in the middle of the most serious collective management dispute in Kenya’s recent history.
Core Conflict
Currently, KECOBO has effectively halted the licensing and collection capabilities of major Collective Management Organisations (CMOs) such as the Music Copyright Society of Kenya (MCSK), the Performing and Audio-Visual Rights Society of Kenya (PAVROSK), and KAMP. This is due to Copyright and Related Rights arising from statutory violations, financial mismanagement, and governance failures.
Foundational Systemic Issues
KAMP’s Mismanagement: The suspension of KAMP stems from spending royalty funds on non-core activities, excessive litigation costs, expired director tenures, lacking usage data, and undercharging users.
Further there is a Tariff Bottleneck. Section 46A of the Copyright Act explicitly bans collecting royalties unless the Cabinet Secretary has approved and gazetted the tariffs. CMOs have been operating outside this legal framework.
Accordingly, the upcoming regulator is not taking over a stable system. It is inheriting an operational gridlock where major collection societies are legally barred from functioning, royalty distribution is stalled, and the sector is entangled in heavy litigation.
THE TREATY PLUMBING GIVING AN INTERNATIONAL HOOK
Kenya’s intellectual property statutes are not purely domestic instruments. Each of them implements treaty obligations, and a consolidating statute inherits every one of them. At Committee Stage the question to ask of each clause is simple: which international obligation does this provision implement, and is that obligation still fully implemented after consolidation?
- TRIPS Agreement: minimum standards of protection, and the enforcement provisions in Part III, including border measures.
- Paris Convention: the right of priority, which must survive the transition intact for every pending application.
- Berne Convention: protection without formality. Any registration or recordal facility for copyright in the consolidated statute must remain declaratory and evidential, never constitutive of the right.
- Patent Cooperation Treaty and the Madrid Protocol: national-phase entry and designation machinery, which depend on a designated receiving and administering office.
- ARIPO instruments: the Harare Protocol, the Banjul Protocol and the Lusaka Agreement, designations of Kenya must continue to be receivable, examinable and enforceable through the new Authority without a gap.
- Convention on Biological Diversity and the Nagoya Protocol: the foundation of the prior informed consent and benefit-sharing provisions relating to genetic resources; the 2024 WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge is now the emerging international benchmark against which those provisions will be read.
- Marrakesh Treaty: accessible-format obligations for persons with print disabilities, which appear in the parallel copyright draft and require a settled home in whichever statute ultimately prevails.
Kenya’s enforcement record is also under external scrutiny: The United States Trade Representative’s 2025 Special 301 Report identified Kenya among jurisdictions whose enforcement weaknesses permit counterfeit goods to enter the market, noting transit routes through third countries. That scrutiny is part of the fuel behind this Bill, and it will also be part of the measure by which the new Authority is judged.
KEY TAKE-HOMES FOR STAKEHOLDERS
The Bill’s ambition is sound and long overdue. What each stakeholder should be doing now:
Rights holders, brand owners and in-house counsel
- Audit the portfolio now. Confirm the status, registration numbers, renewal dates and recorded interests of every patent, utility model, design, mark and copyright recordal before the transition begins.
- Do not let a filing, renewal, opposition or priority deadline straddle the commencement date if it can be avoided.
- Map which of your rights fall outside the consolidation. Plant varieties, geographical indications and trade secrets will still be governed elsewhere.
Creatives, performers, producers and collective management organisations
- The Authority inherits a sector in gridlock, not a functioning one. Assume disruption and plan for it.
- Your single most important ask is express savings for subsisting CMO licences, suspensions and gazetted tariffs. Without them, lawful collection stops on the day the Act commences.
- Governance is now a licensing condition, not a formality: annual returns, audited accounts, verifiable usage data, trust-account controls and director tenure are what the regulator acts on.
Agribusiness, life sciences and research institutions
- Portfolios remain split. Plant breeders’ rights continue under the Seeds and Plant Varieties Act (Cap. 326) through KEPHIS, outside the new Authority.
- Access to genetic resources and associated traditional knowledge is treaty-shaped. Prior informed consent and benefit-sharing documentation should be in order before you file, not after.
Technology firms, digital platforms and internet service providers
- Notice-and-takedown is not new law. The courts have already set the standard: a notice must identify the work and locate the infringing content, and a compliant intermediary is indemnified.
- Press for retention of the intermediary indemnity and the counter-notice remedy, and for judicial supervision, or at minimum expedited review, of any site-blocking power.
Foreign applicants, IP agents and correspondent firms
- Priority dates, PCT and Madrid national-phase machinery and ARIPO designations must transfer without a gap. Treat any silence on this as a risk, not an oversight.
- Seek automatic recognition of existing agent registrations, powers of attorney and addresses for service. Mass re-execution across foreign-owned portfolios is an avoidable cost.
Advocates, litigators and IP practitioners
- The client’s rights live or die in the savings clauses. Read the schedules first and the long title last.
- Insist on express substitution of parties and transfer of records for every pending matter, and on a guaranteed interval between the constitution of the new Tribunal and the dissolution of the existing ones. No tribunal should close before its successor is sitting.
- The enforcement provisions, not the merger, will generate the constitutional litigation. Test every coercive power against Articles 31, 33, 35, 40, 47 and 50.
Investors, lenders and dealmakers
- Add transition risk to IP due diligence: whether a target’s registrations, recordals, licences and security interests carry over with their priority intact, and whether any right is exposed to a migration error.
Parliament, the departmental committee and policymakers
- Resolve precedence between this Bill, the Copyright and Related Rights Bill, 2026 and the Geographical Indications Bill, 2026. Three instruments cannot govern one field on different assumptions.
- Name one responsible Cabinet Secretary, and settle expressly the position of the Trade Marks Act (Cap. 506): repeal and re-enactment, or transfer of administration only.
- Secure the funding model. An underfunded registry produces backlogs, and backlogs produce lapsed and unenforceable rights.
- Separate the grant and registration function from the inspection and enforcement function within the Authority, in the statute rather than in policy.
This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary as set out in the article should be held without seeking specific legal advice on the subject matter. If you have any query regarding the same, please do not hesitate to contact our Intellectual Property & Technology Department vide WAIPLaw@wamaeallen.com
About the author
Peris is a results-driven and disciplined legal professional committed to delivering exceptional value to clients. With expertise across various legal fields, she provides strategic legal solutions tailored to diverse client needs. Her strong interpersonal skills, dedication, and meticulous approach to legal practice enable her to navigate complex legal matters effectively.
Denis Mutugi specializes in Commercial Litigation and Alternative Dispute Resolution.
Denis graduated with a Bachelor of Laws, LLB (Hons) from The University of Nairobi in 2021 and was admitted to the Roll of Advocates of the High Court of Kenya in the year 2023.
Denis has amassed a considerable wealth of experience in conducting legal research on various complex legal matters touching on Commercial, Insurance, Employment and Insolvency law and bankruptcy.
