Benjamin Musau

B enjamin Musau is a Kenya Advocate and the Managing Partner of B M Musau & Co., Advocates, a position he has held since 1999.  He has previously been a Partner in Kaplan & Stratton, where he worked since 1988.  His work encompasses tax legal, regulatory reforms, county government law and reform, reduction of administrative burdens, the structure of business entities, joint ventures, acquisitions, banking, foreign investment, corporate and commercial law, complex litigation and alternative dispute resolution (mediation, negotiations and arbitration.

Benjamin is currently training the Kenya Police on anti-money laundering, anti-corruption and counter-terrorism financing.  In-addition he is currently a lecturer at the University of Nairobi, School of Law.

 

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  1. 1
    INTRODUCTION

    Introduction

    • Benjamin Musau is a Kenya Advocate and the Managing Partner of B M Musau & Co., Advocates, a position he has held since 1999.  He has previously been a Partner in Kaplan & Stratton, where he worked since 1988.  His work encompasses tax legal, regulatory reforms, county government law and reform, reduction of administrative burdens, the structure of business entities, joint ventures, acquisitions, banking, foreign investment, corporate and commercial law, complex litigation and alternative dispute resolution (mediation, negotiations and arbitration).
    • Ben led the Local Government 2008-2010 World Bank financed Subnational Competitiveness Study of Local Governments, a precursor to the transformation of local governments to County Governments under the Constitution of Kenya, 2010.
    • He spearheaded the 2005-2008 Regulatory Reforms for Business Activities in Kenya (financed by the World Bank through the Ministries of Finance and Trade & Industry) which have led to substantial reduction of red-tape in Kenya.  This work involved working closely with state corporations, national government regulators, ministries, local and municipal governments in Kenya to review and reform government licenses, rules and regulations, and subjected the Single Business Permit along with other national, local and municipal licenses and permits to careful local, regional and international scrutiny and reform.  The Single Business Permit constituted a substantial portion of income for the then local authorities in Kenya, and there was great private sector pressure to delete it.  Ultimately, it was agreed to reform the Single Business Permit substantially and to gradually replace it with a local business tax collected on behalf of local authorities (now County Governments) by the Kenya Revenue Authority.
    • The 2005-2008 Regulatory Reforms work entailed the review of all the laws, rules and regulations in force in Kenya at that time, and the publication of the first ever list of business licenses obtaining in Kenya in 2007.
    • Ben’s regular work also involves corporate commercial legal work and complex litigation including alternative dispute resolution.
    • Ben is involved in the initiatives to Brand Kenya.  He was invited by the Marketing Society of Kenya and gave the first paper from a legal perspective of branding Kenya while he has subsequently been involved in providing legal expertise which led to the publication of the Investors Guide to Kenya by UNCTAD.  He is also involved in a number of World Bank Group supported regulatory reform improvements in Sudan, Tanzania, Madagascar and Bangladesh, among others.
    • Ben has acted as a consultant for KIPPRA and the Kenya Law Reform Commission in facilitating a retreat for business people and Government representatives on the challenges to investment in Kenya.
    • He has made in-depth study on international taxation and financial services law involving current trends in international compliance (anti-money laundering, anti-corruption and counter terrorism financing), international tax and tax treaties, anti-avoidance legislation and tax risk management, global e-commerce taxation, financial instruments, law of banking and financial institutions, international legal research and writing, information security and cybercrime law, , and wrote a Thesis in 2011 on the Extent to Which Kenya Had Implemented the then 40+9 (now consolidated 40) FATF Recommendations on Anti-Money Laundering and Counter-Terrorism Financing.
    • Benjamin is currently a candidate for the award of Ph.D on the topic of anti-money laundering, anti-corruption and counter-terrrorism financing within the context of international taxation and financial services law.
    • Ben is involved in the initiation of Continuing Legal Education for lawyers through the Law Society of Kenya where he has given initial CLE courses based on Managing a Law Firm and Case Management.
    • Benjamin is currently training the Kenya Police on anti-money laundering, anti-corruption and counter-terrorism financing.
    • Benjamin is currently a lecturer at the University of Nairobi, School of Law.
  2. 2
    EDUCATION & PROFESSIONAL TRAINING

    EDUCATION & PROFESSIONAL TRAINING

    Benjamin Musau has specifically been trained internationally and gained experience on the following:

    1. Financial Instruments (instruments):

    (a)    Equity investments (Stock distributions and inter-corporate dividends received deduction)

    (b)   Debt investments (instruments)

    (i)     Private debt investments

    (ii)   Public debt investments including domestic and international sovereign bills and bonds

    (iii) Original issue discount, obligations issued in sale or exchange transactions, variable rate debt instruments, contingent debt instruments, market discount bonds, short-term obligations, stripped bonds and stripped coupons and below-market-rate-loans

    (c)    Derivatives and other financial instruments

    (i)     Treatment of options

    (ii)   Section 1256 contracts

    (iii) Notional principal contracts

    (iv) Foreign currency denominated instruments

    (v)   Swaps

    (vi) Caps

    (vii)           Collars

    (viii)         Hedging transactions

    (ix) Economic effect of the use of derivatives on the financial markets

    (d)   Financial transactions

    (i)     Wash sales and short sales

    (ii)   Straddles and related transactions

    (iii) Hedging transactions

    (iv) Conversion transactions

    (e)    Options

    (f)    Forwards

    (g)   Futures

    (h)   How the taxation of financial instruments change depending on the taxpayer’s role as an investor, dealer, broker or trader

    1. Law of Banking and Financial Institutions

    (a)    Dual regulatory system, banks and financial institutions (thrifts, credit unions, industrial banks, finance companies, investment banks and money transmitters)

    (b)   What a Bank was, is and might be in the future

    (c)    History of banking

    (d)   Understanding bank financial statements

    (e)    Dual banking system: state and national banks

    (f)    Pre-emption

    (g)   Role of the Fed

    (h)   Banking ownership structures and banking holding companies

    (i)     The FDIC: open bank supervision

    (j)     Bank powers: permissible activities

    (k)   Thrift powers

    (l)     Industrial banks and non-bank banks

    (m) Mutual thrifts, credit unions and the NCUA

    (n)   Restrictions on bank loans and investments

    (o)   Bank capital and safety and soundness

    (p)   Examination and enforcement actions

    (q)   Mergers and change of control

    (r)     Trust activities, wealth management, investment companies, etc.

    (s)    Securities activities of banks, banking activities of shadow banks

    (t)     Insurance activities

    (u)   Derivatives and non-traditional bank products

    (v)   Finance companies and mortgage lenders

    (w) GSEs

    (x)   PayDay lenders, money transmitters and PayPal, internet lenders, factors

    (y)   International banking: theirs here

    (z)    International banking: ours there

    (aa)Bank Secrecy Act and USA Patriot Act

    (bb)                       Consumer Protection laws and CRA

    (cc)FDIC: closed banks, receivership and liquidation

    (dd)                      Reform of the financial system: new developments

    1. International Compliance

    (a)    International money laundering and compliance

    (b)   Domestic U.S. Anti-Money Laundering/compliance

    (c)    Research in international compliance

    (d)   Introduction to compliance

    (e)    Advanced topics in compliance and technology/investigations

    (f)    Advanced topics in compliance

    (g)   Politically Exposed Persons (PEPs)

    (h)   Compliance and Counter-Terrorist Financing

    (i)     The Third EU Money Laundering Directive and Compliance

    (j)     Criteria for the evaluation of the anti-money laundering/compliance regimes of nations and offshore financial centres

    (k)   Comparative analysis of the criteria and progress in the anti-money laundering/compliance regimes in Latin and North America, the United States and the United Kingdom, China and India

    (l)     Criteria for the evaluation of the Anti-Money Laundering/Compliance Regimes in Dubai and the Middle East

    (m) Wealth Management and Anti-Money Laundering/Compliance

    (n)   Summary of Red Flags for Money Laundering and Counter Terrorist Financing

    1. Information Security and Cybercrime Law

    (a)    Requirement for a new approach to contracts in view of online commerce developments

    (b)   Online contracting including traditional elements of drafting but with a new twist

    (c)    Closing of an e-commerce deal not with a handshake but with exchange of electronic keys authenticated by an international authentication service

    (d)   Cyber notaries and verification of digital signatures

    (e)    Impound accounts residing outside the jurisdiction of parties and guarantee of performance

    (f)    Disclaimers, licenses and warranties (conflict between U.C.C. and UNICTRAL or other model commercial acts)

    (g)   Contracts in the digital age

    (h)   Authentication of parties

    (i)     Forum

    (j)     Statute of frauds

    (k)   Licensing

    (l)     Consumer protection

    1. International Tax and Tax Treaties

    (a)    The concept of company

    (i)     The company proper

    (ii)   Organisations treated as companies

    (iii) Domestic and foreign corporations

    (iv) Recognition of foreign companies

    (v)   Recognition and tax status of foreign companies

    (b)   The concept of fiscal residence under domestic law

    (i)     The issue of fiscal residence

    (ii)   Criteria used to determine a company’s fiscal residence

    (1)   Incorporation

    (2)   The strict sense of residence: central management and controlling power

    (3)   Company seat

    (4)   Company management and effective management

    (5)   Main office or head office

    (6)   The company’s main activity

    (7)   Control

    (iii) Domicile used as a criterion of fiscal residence

    (1)   The “circumstances”

    (2)   The application of several criteria

    (a)    Countries that use a single test

    (b)   Countries that use several tests

    (c)    Multinational companies

    (i)     When is a subsidiary a resident in the state of the parent company?

    (ii)   Service centers

    (d)   Dual fiscal residence and absence of fiscal residence

    (i)     Dual fiscal residence and absence of fiscal residence

    (ii)   Dual residence resulting from the application of a single criterion i.e. central management and control

    (iii) Dual residence resulting from a different interpretation of the same criterion

    (iv) Dual residence resulting from the application of different criteria

    (v)   Advantages and disadvantages of dual residence

    (vi) Absence of fiscal residence

    (e)    Transfer of fiscal residence

    (i)     The problems caused by the transfer of fiscal residence

    (f)    The Company’s continuance

    (i)     Migration from the country of residence

    (ii)   Migration to the country of residence

    (g)   Transfer of fiscal residence

    (i)     Migration from the country of residence

    (ii)   Voluntary and involuntary transfer of fiscal residence

    (iii) Consequences of transfer of fiscal residence

    (h)   Concept of fiscal residence in double tax agreements

    (i)     The international organisations’ models

    (1)   The definition of fiscal residence according to the Model Conventions

    (2)   The general rule: reference to the domestic law of each of the countries concerned

    (ii)   The treaties’ own definitions of residence

    (iii) Dual residence and the preference criteria intended to determine fiscal residence

    (1)   The matter

    (2)   The effective management test

    (3)   The incorporation test

    (4)   Company seat

    (5)   Head or main office

    (6)   Mutual agreement procedure

    (iv) The treaties that do not settle the question of dual residence

    (v)   Dual residence and third countries

    (vi) Residence under domestic law and residence under double tax treaties

    (vii)           Residence and tax avoidance

    (viii)         Treaty shopping

    (i)     Tax Treaty trends is some European Union countries (implication of EU Law and the functioning of the EU institutions and integration mechanisms)

    (i)     Case studies on tax treaty interpretation and recent tax treaty negotiations in Europe

    (ii)   Major case law decisions on significant tax treaty aspects – PE issues, capital income, dividends, transfer pricing and anti-abuse mechanisms

    (iii) Trends by specific institutions and bodies such as the Joint Forum on Transfer Pricing on transfer pricing matters

    (iv) Developments of the European Union Court of Justice affecting the interpretation of tax treaties by EU Member States

    (v)   The recent treaty trends of the last tax treaties negotiated and signed by major EU countries, with special reference to tax treaties signed with the US

    (vi) The analysis of the main tax treaty case law organized by subject areas, such as business taxation, capital income, dividends, transfer pricing, anti-abuse mechanisms, non-discrimination clauses and other cases

    (vii)           The analysis of the main EU CJ case law on the implications of the Treaty of the Functioning of the European Union regarding fundamental principles and freedoms on tax treaties signed by EU Member States

    (viii)         The study of developments made by the Joint Forum on Transfer Pricing in the area of transfer pricing in Europe, and of other bodies and groups

    (ix) Other harmonization and coordination measures on income tax treaties and administrative cooperation

    (j)     Trends in recent tax treaties of EU Member countries: overview

    (i)     Concepts and basic principles, general trends

    (ii)   Germany

    (iii) United Kingdom

    (iv) France

    (v)   Spain

    (vi) Other countries and treaties

    (k)   Relevant case law on tax treaty matters in different EU member countries

    (i)     Introduction

    (ii)   Residence issues

    (iii) PE issue

    (iv) Dividend issues

    (v)   Classification conflicts

    (vi) Other issues

    (l)     Tax treaty abuse and counteracting measures

    (i)     Introduction: tax treaty abuse in the Model Conventions

    (ii)   Validity of counteracting measures

    (iii) Counteracting treaty abuse in practice: case law of European countries

    (iv) Counteracting abuse and requirements of EU law

    (v)   Case law of the EU CJ in the area of tax measures counteracting abuse

    (m) Tax treaties and EU law

    (i)     Relationship between tax treaties and EU law

    (ii)   Effects on tax treaties between member states

    (iii) Tax treaties and the most-favoured nation treatment

    (iv) EU law and tax treaties with third countries

    (v)   Initiatives on compatibility between tax treaties and EU law

    (n)   Transfer pricing. The Joint Forum on Transfer Pricing

    (i)     The Joint Forum on Transfer Pricing: objectives and functioning

    (ii)   The Arbitration Convention

    (iii) The Documentation Package

    (iv) Transfer pricing and SME

    (v)   Other transfer pricing issues

    1. Anti-avoidance legislation and tax risk management

    (a)    Comparative examination of the general legal principles, tax regulations, case law and audit procedures concerning anti-tax-avoidance and tax risk mitigation in many OECD countries and the ethical issues often confronted by practitioners

    (b)   Issues concerning economic substance, business purpose, economic benefit, abuse of law, assignment of income

    (c)    Thin capitalisation and earnings stripping

    (d)   Anti-deferral regimes like control foreign company legislation

    (e)    Taxation of passive investment income held in foreign entities and foreign trust regimes

    (f)    Anti-haven regimes

    (g)   Other anti-avoidance legislation

    (h)   Task risk management considering intra-group communication, establishing tax department operations, compliance programs and other practices required for tax counsel

    (i)     The changing landscape of the Foreign Tax Credit Regime

    (j)     International Tax Regimes

    (k)   Anti-Avoidance (Orbitax)

    (l)     Structured finance law

    (m) Controlled foreign corporations

    (n)   Development of the law of taxation in South Africa

    (o)   Don’t Forget the Step Transaction Doctrine

    (p)   Determination of residence

    (q)   Professional and ethical considerations for international tax planning advisers, ethical concerns and penalties, ethical concerns in international tax planning

    (r)     Section 7874 Critics Flawed Legislation, Flawed Guidance

    (s)    The Changing Landscape of the Foreign Tax Credit Regime

    (t)     Thin Capitalisation Rules International

    (u)   Economic Substance Doctrine

    (v)   Transfer Pricing

    1. Global E-Commerce Law and Taxation

    (a)    Tax issues concerning international e-commerce

    (b)   Tax compliance – e-tax administration and compliance issues

    (c)    Compliance issues of value added tax (VAT)

    (d)   Outbound and inbound transactions involving the analysis of residence based e-transactions, consumption, sales tax, e-tax rules of cross border trade

    (e)    Impact of consumption tax on developing countries

    (f)    International e-commerce taxation

    (g)   International taxation of digital products and service

    (h)   Digital certificate

    (i)     Electronic money

    (j)     Internet Tax Freedom Act

    (k)   Balancing national interests in the taxation of electronic commerce business profits

    (l)     Current problems of international taxation of electronic commerce

    (m) E-Commerce and the taxation doctrine of permanent establishment in the U.S. and China

    (n)   E-Commerce taxation issues (electronic commerce and transfer pricing)

    (o)   Electronic commerce and the challenge of tax administration

    (p)   Jurisdiction to tax, a law and technology perspective

    (q)   Jurisdiction issues of e-commerce taxation

    (r)     Permanent establishment

    (s)    Attribution of profit

    (t)     International treaties

    (u)   Taxation of offshore e-commerce

    (v)   E-commerce and tax policy

    (w) The future direction of tax laws in e-commerce

    1. International Legal Research and Writing

    (a)    Legal Research and Citation Style in the US

    (i)     Bluebook: A Uniform System of Citation, which is published by the editors of four prestigious law reviews at Columbia University, Harvard, University of Pennsylvania, and Yale Law Schools

    (ii)   The proper format according to the Bluebook changes with time, so old sources (both cases and law review articles) do not use the modern format for citation

    (iii) Sources of Legal Materials in the US

    (iv) Citation of Court Opinions in the US

    (v)   Citation of Statutes and Regulations

    (vi) Bluebook format for citing secondary sources

    (vii)           Alternatives to the Bluebook

    (b)   Legal Writing Style

    (i)     The Bluebook: A Uniform System of Citation

    (ii)   Black’s Law Dictionary (published by West) – standard legal dictionary in the US

    (iii) Bryan A. Garner, The Elements of Legal Style, published by Oxford University Press in 1991

    (iv) Bryan A. Garner, A Dictionary of Modern Legal Usage, also published by Oxford University Press

    (v)   Plain English

    (c)    Legal Research and Citation Style in Europe (with special reference to the UK)

    (d)   Legal Research and Citation Style in Kenya

    (e)    CALI

    (f)    Plagiarism keeping out of trouble

    (g)   Deep Web Research 2010

    (h)   IRAC (components of legal analysis)

    (i)     Legal research and citation style in the US

    (j)     Locating cases using Butterworths

    (k)   Lexis-Nexis

    (l)     Westlaw

    (m) BNA International

    (n)   CCH International databases

    (o)   Butterworths UK and international materials

    (p)   Checkpoint-RLA-WGL-Gee

    (q)   Tax Analysts

    (r)     EUs web pages

    (s)    IBFD

    1. Ph.D (JSD) Candidate, 2014-date (Thomas Jefferson School of Law, San Diego, California, U.S.A.). Topic: How To Efficiently and Effectively Implement Anti Money Laundering, Anti Corruption and Counter-Terrorism Financing Measures in the Eastern and Southern Africa Anti Money Laundering Group (ESAAMLG) Member Countries
    2. LL.M, 2011 International Tax and Financial Services (Thomas Jefferson School of Law, San Diego, California, U.S.A.)
    3. LL.B (Hons), 2:1 (Upper Second Class Honours), University of Nairobi, 1988
    4. Diploma in Advocacy, Kenya School of Law, 1989
    5. KACE, Kagumo High School, 1982-1983
    6. Value of Evidence Training, Strathmore University School of Law, June 2013
    7. Seminar on International Trade Law (United Nations Commission on International Trade Law) (Unictral)), Professional Centre, Nairobi Kenya, 12-15 Sept., 1994
    8. Conference on Mediation as an Alternative Dispute Resolution Mechanism (East Africa Law Society), Lake View Hotel, Mbarara, Uganda, 3-5 Apr., 1997;
    9. Course on High Impact Leadership & Team Development for Managerial Success (the Institute of Certified Public Secretaries of Kenya jointly with the Kenya Institute of Management), Nairobi Safari Club, Nairobi, Kenya, 26-27 Feb., 1998;
    10. Seminar on Alternative Dispute Resolution (Arbitration, Negotiation and Mediation) (Canadian Bar Association jointly with the Law Society of Kenya), Utalii Hotel, Nairobi, Kenya, 17-19 Mar., 1999;
    11. Workshop on Corporate Governance (Private Sector Initiative for Corporate Governance), Safar Park Hotel, Nairobi, Kenya, 6-7 Oct., 1999;
    12. Seminar on Corporate Governance (Private Sector Initiative for Corporate Governance), Nairobi Safari Club, Nairobi, Kenya, 8 Oct., 1999.
  3. 3
    PROFESSIONAL QUALIFICATIONS

    Professional Qualifications

    • Advocate of the High Court of Kenya, 1989
    • Law Society of Kenya¸1989 to date
    • Certified Public Secretary, 1992
    • Fellow of the Institute of Certified Public Secretaries of Kenya
    • Member, International Bar Association,1993
    • Commissioner for Oaths, 1999
    • Notary Public, 1999
    • Member, Marketing Society of Kenya, 2003
    • Member, International Commission of Jurists (Kenya)
  4. 4
    KEY INTERNATIONAL & PROFESSIONAL RESPONSIBILITIES

    Other key international and professional responsibilities

    • 1995 to date, Author of the International Execution against Judgement Debtors, Kenya Chapter for the Centre of International Legal Studies, Salzburg, Austria published by Oceana Publications, Inc.
    • 1995 to 2011, Chairman of Law Society’s Technical Committee on Commercial and Business Law
    • 1998 to date, Member of the Publications & Research Committee of the Institute of Certified Public Secretaries of Kenya
    • 2002 to 2004, Director, Capital Markets Authority
    • 2002 to date, Member of the Professional Development & Education Committee of the Association of Professional Societies of East Africa
    • 2002 to date, Member, Rotary Club of Nairobi South taking responsibility as the Club President
    • 2004 to 2012, Member, Kenya Bureau of Standards, Technical Committee (Processes & Data Elements in Commerce, Industry and Administration)
    • 2007 to 2012, Commissioner, Kenya Law Reform Commission
    • 2007 to 2012, Member, Council of the Kenya School of Government (formerly Kenya Institute of Administration)
  5. 5
    PROFESSIONAL BACKGROUND

    Professional background

    • 1988 to 1989, Kaplan & Stratton, Articled Clerk
    • 1989 to 1993, Kaplan & Stratton, Advocate (Corporate & Finance)
    • 1993 to 1999, Kaplan & Stratton, Partner (Corporate & Finance)
    • 1999 to date, B M Musau & Co., Managing Partner
  6. 6
    PROJECTS

    Has been involved in various transactions:

    1. He spearheaded the African Peer Review Mechanism for Kenya under a consultancy with the African Center for Economic Governance on the thematic area of corporate governance 2013 (ongoing).

    2.      He is involved in the training of the National Police Service on Anti Money Laundering and Counter-Terrorist Financing law through the Central Bank of Kenya under the Kenya School of Monetary Studies (2013 to date).

    3.      He spearheaded the Regulatory Reforms for Business Activities in Kenya (financed by the World Bank through the Ministries of Finance and Trade & Industry) which have led to substantial reduction of red-tape since 2005 to 2008.  This work involved:

    (a)    Reviewing all the laws of Kenya including all the rules and regulations made under the laws of Kenya i.e. the substantive acts of parliament as well as the rules and regulations made by Government ministries and regulatory agencies leading to the first ever listing of 1,325 business licenses in Kenya

    (b)   He worked closely with local governments in Kenya to review and reform local government licenses, and subjected the Single Business Permit to careful local, regional and international scrutiny and reform.  The Single Business Permit constituted a substantial portion of income for the then local authorities in Kenya, and there was great private sector pressure to delete it.  Ultimately, it was agreed to reform the Single Business Permit substantially and to gradually replace it with a local business tax collected on behalf of local authorities (now County Governments) by the Kenya Revenue Authority

    (c)    He reviewed all the licenses and subjected each of them to the tests of legality, necessity and business-friendliness.  This assisted the Committee to make decisions on which licenses to eliminate, simplify or retain

    (d)   Drafting the Business Regulation Bill (which now requires review in the context of the Constitution of Kenya, 2010 and the County Governments Act

    (e)    He was also involved in advising on the establishment of the electronic database of licenses in Kenya, which is now in force at http://www.businesslicense.or.ke/index.php/index/index/id/2.  This involved working with NRD consultants of The Netherlands and advising them on matters of Kenya law and how they impacted on the proposed registry

    (f)    The setting up of a quality review unit to vet future regulations impacting on business as well as business licenses to ensure that such are in consonance with internationally accepted practices and standards, and this is not yet in place pending the enactment of the Business Regulation Bill by the National Assembly

    (g)   He has undertaken an in-depth study of all the laws of Kenya, rules and regulations and compared them with the Committee’s decisions to establish the mechanisms for implementation of the decision memos and this facilitated the production of legal texts to carry on the reform efforts, thereby fast-tracking the implementation of the decision of the Committee that he led as a regulatory reform expert

    (h)   The team work led to the achievement of Kenya, that attained a top 10 position in 2008 World Bank Doing Business assessment and the presentation to Government of Kenya with a major international award for this achievement.

    1. Ben led the Local Government 2008-2010 World Bank financed Sub national Competitiveness Study of Local Governments involving the then local governments of:

    (a)    Thika

    (b)   Nyeri

    (c)    Kisumu

    (d)   Malaba

    (e)    Mombasa

    (f)    Eldoret

    (g)   Isiolo

    (h)   Garissa

    (i)     Mombasa

    (j)     Kilifi.

    5.      Benjamin Musau has recently undertaken in-depth training and studies leading to the award of the prestigious Thomas Jefferson School of Law Master of Laws degree in International Tax and Financial Services covering the following courses:

    (a)    Anti-Avoidance Legislation & Tax Risk Management

    (b)   International Legal Research & Writing Skills

    (c)    Law of Banking and Financial Institutions

    (d)   International Compliance

    (e)    Information Security and Cybercrime Law

    (f)    Financial Instruments

    (g)   Global E-Commerce Taxation

    (h)   Thesis on the Extent to Which Kenya Has Implemented the 40+9 FATF Recommendations on Anti-Money Laundering and Counter-Terrorism Financing

    (i)     International Tax & Tax Treaties.

    6.      Benjamin has served as a member of the National Steering Committee on Devolved Government, formed by the Government of the Republic of Kenya to develop mechanisms for the implementation of the devolved system of government as envisaged in the new Constitution of Kenya (2010-2012).

    7.      Benjamin was centrally involved with the work of the Constitution of Kenya Review Commission as a member of the CKRC’s Panel of Experts.  In his capacity as an expert, he reviewed drafts made by the Commission and advised on the Bill of Rights, the Electoral System, the Devolved Government, the Public Service, Public Finance, the Judiciary, the Constitutional Commissions (that collectively constitute the 4th Arm of Government), the Legislature (Senate, National Assembly and County Assemblies), the Executive, and generally on public consultation and the Bomas of Kenya deliberations.

    8.      Benjamin was also involved in the provision of civic education to the public both before and after the two Referendums firstly under the APSEA civic education program for the post-Bomas Referendum and subsequently before, during and after the last Referendum that led to the adoption of the current Constitution.

    9.      Benjamin Musau also been involved with the constitutional reform process as a Commissioner with the Kenya Law Reform Commission.  In that capacity, Benjamin has been centrally involved in the process of implementation of the Constitution and possesses first-hand experience and knowledge of the core provisions of the Constitution.  In fact, he was involved in the pre-Referendum strategy for the Referendum Scenarios involving the Kenya Law Reform Commission, the Agenda 4 Commissions.  In the Kenya Law Reform Commission, he is the Convenor of the following Committees:

    (a)    Committee on the Devolved Government;

    (b)   Committee on Security Laws;

    (c)    Committee on Corporate and Commercial Law;

    (d)   Committee responsible for Reviewing and Updating all the Laws of Kenya in view of the new Constitution of Kenya that are not covered by other Committees of the KLRC.

    10.  Benjamin Musau serves in the Law Society of Kenya Committees on Litigation, Commercial Law and Remuneration during my professional career.

    11.  Benjamin Musau has acted for the IIEC on the Juja Election Petition, for the Kenya Meat Commission against the National Bank of Kenya (leading to the re-opening of KMC), for Blue Ltd in a long drawn and complicated litigation against Jaribu Credit Traders Ltd, not to mention several leading cases that Benjamin Musau handled with William Deverell and Byron Georgiadis at Kaplan & Stratton, where he was a Senior Partner before setting up the partnership in B M Musau & Co., Advocates.

    12.  He has also been involved in advising investors on the key provisions of newly enacted Constitution, among other related engagements.

    13.  World Bank, Doing Business Project from inception to date.  He has expertise and has worked with the Doing Business Team in the World Bank on all the DB indicators from inception to time.

    14.  Foreign Investment Advisory Service of the World Bank Group (consultancy):

    (a)    Kenya: Improvement of Kenya’s Doing Business Indicators, 2007 (specifically starting a business, paying taxes, trading across borders and dealing with licenses)

    (b)   Sudan: Investment Climate Action Program, 2007

    (c)    Madagascar: Business Licensing Reforms, 2007

    (d)   Bangladesh: IFC BICF funded Regulatory Reforms Project, 2007

    (e)    Kenya: Inspections and Enforcement profile, 2008

    (f)    Kenya: Lead policy advocacy and advisory consultancy on the Kenya Business Licensing Reform Project, 2008

    (g)   Kenya: Measuring and Evaluation of the Kenya Business Licensing Project (technical assistance and expertise to Jacobs & Associates), 2008

    15.  Kenya Association of Manufacturers, 2008 Licensing Reform Appraisal Project

    16.  Government of the United Republic of Tanzania, September 9-10, 2007 Facilitation of a workshop to draft Business Licensing Reform policy

    17.  Government of the United Republic of Tanzania, 2008 Regulatory Reforms Strategy

    18.  Heifer Project International, Devising Legal Structure for Dairy Plants and their Holding Companies and implementing it (Siongiroi Dairy Plant Ltd, Kipkelion Dairy Ltd, Tanykina Dairy Plant Ltd, Ol Kalou Dairy Ltd, Kipkelion Holdings Ltd, Siongiroi Dairy Farmers Cooperative Society Ltd, Kipkaren Holdings Ltd, Tambochi Malugei AI Services and Ol Kalou Holdings Ltd), 2010

    19.  Heifer Project International, Advising and implementing the divestiture program from investment in the dairy plant and loan security scheme by debentures over the Dairy Plant Companies, 2011 to 2012

    20.  Heifer Project International, Advising and implementing change of name, increase in capital and shareholding structure in Tanykina Dairy Plant Ltd, 2011

    21.  Nairobi Bottlers Ltd, advising and implementing security on advances to distributor accounts, legal charges over immoveable property, etc. 2003 to date

    22.  Kenya Commercial Bank Ltd, advising on various lending transactions to customers and securities over moveable and immoveable properties e.g. legal charges, mortgages and debentures, 1999 to date

    23.  Adam Smith International Africa Ltd – advising on and implementing the debt equity conversion amounting to some Shs.250,000,000, including savings on stamp duty by the creation of a share premium account in the company books, 2013

    24.  AITEC Conferences Ltd, establishment in Kenya as a foreign company under Part X of the Companies Act, compliance with the Kenya Citizenship and Immigration Act

    25.  American Chamber of Commerce of Kenya – corporate secretarial compliance and exemption from using the word “limited” as a company limited by guarantee, 2003 to date

    26.  UNCTAD and the International Chamber of Commerce, 2004 Investment Guide to Kenya

    27.  Power investment by Westmont Power (K) Ltd – sea barge

    28.  Kipevu Diesel Power Plant advisory role to Mitsubishi Corporation

    29.  Ol Karia I and Okaria II power projects advisory role to Mitsubishi Corporation

    30.  Litigation on commercial and corporate matters including the Kenya Meat Commission challenge of the appointment of receivers by the National Bank of Kenya Ltd, Kenya Commercial Bank Ltd’s exercise of statutory powers of sale & its corporate & commercial litigation profile, among many others.

    31.  Legal Specialist services, DFID-funded GoK’s Bank Strategy Reform Team, 2003

    32.  Consultancy, Kenya Bankers Association Bank Sector Study, 2003

    33.  Drafting of the Kenya Investment Authority Bill for the Investment Promotion Centre

    34.  Drafting of the Dairy Industry Bill

    35.  Consultancy, Kenya Tea Development Agency Ltd’s Fraternity Project, 2003

    36.  Advisory to French firm on water and sanitation in Nairobi in preparation for privatisation of the water services of the Nairobi City Council

    37.  Consultancy for setting up Documentation and Securities Unit for Barclays Bank of Kenya

    38.  Standard form documents and training staff on letters of guarantee & indemnity, letters of offer of loans and overdraft facilities, counter-indemnities, letters of set-off, letters of liens, chattels mortgages, debentures, charges, mortgages, hire purchase agreements, charges over funds, etc. for Barclays Bank of Kenya Ltd, Investments & Mortgages Bank Ltd, Paramount Universal Bank Ltd and Chase Bank Ltd

    39.  Security recoveries, realisations and debt collections for Kenya Commercial Bank Ltd, Paramount Universal Bank Ltd, Chase Bank (K) Ltd and Tamarind Management Ltd

    40.  Advantgarde Translations Inc., advising and implementing setting up in Kenya as a foreign company and compliance with Part X of the Companies Act, 2012

    41.  Baptist World Aid Australia (BWAA), advising and implementing the termination of the legal relationship with SAO Kenya (NGO) including retrenchment of SAO Kenya staff and handling of the staff terminal dues, 2010 and 2011

    42.  BearingPoint Global Operations, Inc., Establishment as a limited liability company in Kenya, 2005, corporate secretarial, advising and implementing liquidation of BearingPoint ECA Ltd, 2001 to 2010

    43.  Bishop Kioko Catholic Hospital, advising and implementing incorporation as a company limited by guarantee, compliance with Pharmacy and Poisons Act, strategic legal issues, standard form staff employment contracts, etc. 2005 to date

    44.  Brinks Security Services Ltd, advising and implementing procurement strategy from the legal perspective, 2006 to date

    45.  Capitol Hill Towers Ltd, advising on increase in capital (2011) and Capitol Hill Development Agreement Phase II, 2011

    46.  Catholic Diocese of Machakos, Chief Legal Counsel (advising on all legal strategy matters for the Diocese including property acquisition, development, staff and litigation)

    47.  Colgate Palmolive (EA) Ltd, advising and implementing legal strategy on advertising, and immigration issues

    48.  COMESA, 2004 Framework Agreement, drafting and advising from the Kenya legal perspective

    49.  Dairy Enterprise Trust, trust set up, and preservation of trust assets (2001-3)

    50.  National Water Pipeline and Conservation Corporation, Debtor Verification Exercise, legal strategy and due diligence report, 2005

    51.  Egerton University Trust and Nairobi University Trust, establishment 2005

    52.  Embassy of Japan, legal counsel retainer, advising on matters involving Kenya law, staff, property, motor vehicles, and leases for office and residence of staff, 2011 to date

    53.  Eveready East Africa Ltd, Conditions of Sale, advising, drafting and implementation and trading agreements with Tusker, Nakumatt and Uchumi, 2006

    54.  Industrial and Commercial Development Corporation, training of staff on commercial conveyancing including securities over moveable and immoveable properties in Kenya, debentures, legal charges, mortgages, chattels mortgages, guarantees and indemnities, etc., 2011

    55.  Industrial Development Bank Ltd, guarantees and indemnities and third party legal charges, 2003

    56.  International Air Parts Australia Pty Ltd, 2011 to 2013 Recovery of US$115,000 from Jetlink

    57.  Kumon Education South Africa (Pty) Ltd, advising on franchising law in Kenya, 2013

    58.  Laikipia County Council, recovery of land rent and land rates, 2001

    59.  Masai Mara Group Ranches Conservation Association, establishing as a company limited by guarantee, devising legal structure and implementing as well as negotiation for conservation dues from Narok County Council, 2000 to 2004

    60.  Masaku Teachers Sacco Ltd, advising on legal structure for recovery of funds lost (re Forensic Audit), 2008

    61.  Masaku Tobacco Wholesalers Ltd, advising and implementing claim against BAT Kenya Ltd, 2001-2003

    62.  Mastermind Tobacco Ltd, advising and implementing debt recovery strategy from 2006 to date

    63.  MPS Stichting Milieu Project Sierteelt, establishment in Kenya under Part X of the Companies Act, and process agency services 2004 to date

    64.  Municipal Council of Machakos, arbitration, litigation, land rent and land rates recoveries, 2009 to date

    65.  National Social Security Fund, advising on recovery of funds from Prudential Building Society in liquidation, mortgages and charges over immoveable property, 2000 to date

    66.  Paramount Universal Bank Ltd, litigation following resistance from borrowers on recovery of loans, 2001 to 2010

    67.  Rafiki Deposit Taking Microfinance (K) Ltd, security for advances to enterprises, 2013 to date

    68.  Siana Wildlife Conservation Association and Siana Wildlife Trust, advising on legal structure, implementation, setting up, and advising on tax legal and other legal compliance issues, 2001 to 2007

    69.  Simba Telcom Ltd, setting up in Kenya, advising on leases for branch network, employment, directorship and other Kenya law compliance issues, 2000 to date

    70.  Siria Mara Group Conservation Association, advising and implementation on setting up, 2007

    71.  TIRI-Making Integrity Work, setting up under Part X of the Companies Act, process agency, Kenya Citizenship and Immigration Act compliance, etc. 2010 to date

    72.  Torres Advanced Enterprise Solutions, setting up of Torres-SR Ltd as a locally incorporated limited company, Joint Venture Agreement, process agency, compliance of Torres AES LLC as a foreign company under Part X of the Kenya Companies Act, single business permit, statutory compliance, obtaining PIN, VAT, PAYE, NSSF and NHIF registrations, 2010 to date

    73.  Town Council of Wote, legal counsel, litigation, negotiations, arbitration, alternative dispute resolution, recovery of immoveable property, 2006 to date

    74.  Tumaini Ministries Inc. setting up in Kenya compliance, process agency, 2003 to date

    75.  Value Enhancement International, LLC, legal opinion on securitisation in Kenya over immoveable and moveable assets, 2008

    76.  Company corporate structures, conveyancing and leases for various property developments in the country including Mobil Plaza, Barclays Plaza, Biashara Bank Building (Mombasa), the Tamarind Village (Mainland North, Mombasa), Williamson House, Capitol Hill Towers and British-American’s Hurlingham Park

    77.  The reorganisation of Kenya Railways including the staff retrenchment programme

    78.  Privatisation of Kenya Airways Ltd, Legal audits for issue of shares to the public for Athi River Mining Ltd, Firestone E.A. (1969) Ltd, Kenya Airways Ltd

    79.  Advices to the Embassy of Japan (Nairobi, Kenya), Proparco, Panafrican Paper Mills (E.A.) Ltd recent debt rescheduling, the CBK appointed manager for Trade Bank Ltd, Bridgestone Corporation Nairobi Liaison Office, The Bank of Tokyo-Mitsubishi Nairobi Office, Mitsubishi Corporation (Rehabilitation of Kenya Meat Commission and the Kipevu Diesel Power Plant), Nichimen Corporation Nairobi Office, Marubeni Corporation Nairobi Office, Carnivore

    80.  Extensive advices on Kenya law on investment and business matters to Morgan Guaranty Trust, Morgan Stanley Trust, JP Morgan Securities, Lehman Brothers International, BZW Securities, Swiss Bank Corporation, Union Bank of Switzerland, British-American Insurance Co (K) Ltd, Madison Insurance Co Ltd, Phoenix Insurance, Royal Insurance, Capitol Hill Towers, Barclays Bank of Kenya Ltd, Kenya Commercial Bank Ltd, Kenya Railways Corporation, BAT Kenya Ltd, East Africa Industries Ltd, Elida Ponds Kenya Ltd, Kenya Industrial Estates Ltd, Kenya Breweries Ltd and Central Glass Industries Ltd

    81.  Incorporated banks and companies as well as advising on corporate deals in Uganda and Tanzania