CAPÍTULO IV: MARCO PROPOSITIVO
4.1 TÍTULO
4.1.5 Marco legal de la empresa
4.3.1 The General Financial Infrastructure in Kenya
Kenya’s financial sector, generally considered to be one of the broadest and most
sophisticated in Sub-Saharan Africa,12 is made up of two main types of institutional
intermediaries: money market institutions and financial market institutions. Money market
11Marco da Rin, Giovanna Nicodano, and Alessandro Sembenelli, Public Policy and the Creation of Active Venture Capital Markets, European Central Bank, Working Paper Series 430/2005 <http://www.ecb.int.> accessed 20 October 2011.
12Klaus Schwab, ‘Global Competitiveness Report 2011’ (World Economic Forum, 2011) 55
<http://www3.weforum.org/docs/WEF_GlobalCompetitivenessReport_2010-11.pdf> accessed 20 October 2011.
institutions refer to financial institutions affiliated to the banking sector, while capital markets
institutions are those financial institutions affiliated directly with the public equity markets in
the country.
As of 2011, money market institutions comprised 43 banks,13 6 licensed deposit-
taking microfinance institutions(MFIs)14and 52 unregistered micro finance institutions, 5,892
licensed banking agents, 6 nonbank financial institutions, 1 mortgage finance institution,154
building societies, 127 licensed foreign exchange bureaux, 17 pension funds supporting 1,216
pension schemes,16and 6,473 Savings and Credit Cooperative Companies (SACCOs), as well
as a range of insurance schemes and mutual funds.
Within the capital market framework, there were, in 2011, 4 types of approved
institutions, 6 stock brokers, 19 investment banks, 20 investment advisers, 18 fund managers
(6 being high-risk debt and related investment services, 1 being a venture capital fund, and 11
being traditional asset management companies), 7 approved Employee Share Ownership
(ESOP) schemes, 11 approved collective investment (CIS) schemes, 15 authorized
depositories, and 20 investment advisors.17
13Schedule 1, Central Bank of Kenya Act of 1966, Cap 491 Laws of Kenya; Central Bank of Kenya,
‘Introduction to Financial System’ <http://www.centralbank.go.ke/financial system/banks/Introduction.aspx > accessed 15 August 2011: Out of the 44 banks, 31 are locally owned; 13 are foreign owned. Out of the 31 local banks, 3 comprise banks with significant government state corporations shareholding (National Bank of Kenya is 70.6% government owned; Consolidated Bank is 77% government owned; Development Bank of Kenya is 100% government owned); 27 are commercial banks.
14Central Bank of Kenya, ‘Deposit Taking Microfinance Institutions’
<http://www.centralbank.go.ke/financialsystem/microfinance/deposittaking.aspx> accessed 15 August 2011: these are Faulu Kenya DTM Ltd; Kenya Women Finance Trust DTM Ltd; Remu DTM Ltd; SMEP DTM Ltd; UWEZO DTM Ltd; Rafiki DTM – with a total of 54 branches nationwide between them.
15Central Bank of Kenya, Introduction to Financial System (n 12) 16Retirement Benefits Authority, ‘Registered Schemes’,
<http://www.rba.go.ke/media/docs/schemes/Registered-Schemes.pdf > accessed 8 October 2011
17Kenya Gazette Vol.CXII-No.45 of 30 April 2011, published by the CMA in compliance with sections 11(3) and 27(1) of the Act.
In the following sub-sections, each of the financing options outlined above is
considered in greater detail under four themes: micro-finance, credit and cooperative societies,
bank finance and capital market financing solutions.
4.3.2 Micro-Finance
The micro-finance sector in Kenya comprises a range of institutions including
microfinance banks, wholesale MFIs, retail MFIs, development institutions and insurance
companies.18The MFI industry currently serves an estimated 6.5 million Kenyan families and
households through its 52 registered members, all of whom are currently overseeing an
outstanding loan portfolio of KES29 billion (roughly USD310 million).19
MFIs in Kenya can be either registered as deposit-taking MFIs or non-deposit taking
MFIs. MFIs subject to regulatory oversight are regulated by the Central Bank of Kenya,
under the Microfinance Act of 2006.20As of at end 2011, there were 5 licensed deposit-
taking MFIs.21A deposit-taking business is one that holds itself out as accepting deposits on
day to day basis, and conducts its business through lending or extending credit at its own
risk.22The Central Bank has additionally approved 34 other microfinance business names –
the first step towards registration as a deposit-taking MFI in Kenya.23
18Association of Microfinance Institutions of Kenya (AMFI), ‘Membership’
<http://www.amfikenya.com/pages.php?p=1> accessed 10 October 2011: serving 6.5 million clients, with outstanding loan portfolio of over Ksh.29 billion (roughly over $310 million).
19ibid
20No.19, s 5, Laws of Kenya
21Central Bank of Kenya, ‘Deposit Taking Microfinance Institutions’ <
http://www.centralbank.go.ke/financialsystem/microfinance/deposittaking.aspx> accessed 9 September 2011.These were: Faulu Kenya DTM Ltd; Kenya Women Finance Trust DTM Ltd; Remu DTM Ltd; SMEP DTM Ltd; and Uwezo DTM Ltd – all licensed between May 2009 and December 2010.
22Microfinance Act 2006, s 2
23Central Bank of Kenya, ‘Annual Report’ (2010) 44 <
http://www.centralbank.go.ke/downloads/publications/annualreports/cbk/annual_2009-10.pdf> accessed 10 September 2011
Micro-finance has been catalytic in the emergence of some of Kenya’s major
commercial banks. Equity Bank Ltd and Family Bank Ltd were initially building societies.24
K-REP Bank Ltd was a non-governmental organisation offering microfinance services.25
Cooperative Bank of Kenya Ltd was a cooperative society.26All four banks grew out of the
historically narrow market penetration of traditional forms of banking in Kenya, and they
continue to define the country’s microfinance landscape. It was estimated that in 2010,
formal banking institutions held $17.8billion in assets, compared to $1.5billion held by
MFIs.27
There are in Kenya a number of other institutions whose financing solutions fit
properly within a ‘micro-finance’ definition – and these include unregistered micro-finance
lenders, mobile money payment systems, development finance institutions, non-
governmental organisations practising micro-finance, and informal self-help groups and
unlicensed money lenders.28 In terms of relative market share, commercial banks are
estimated to serve a total of 22.6% of Kenya’s adult population, while microfinance
institutions serve an estimated 17.9%. Informal financial markets including non-
governmental organisations, self-help groups and money lenders serve an additional 22.8% of
Kenyans. The foregoing suggests that a total of 32.7% of Kenya’s adult population do not
have access to any form of financial services.29
Micro-finance in all its varieties is provided in the form of short-term loans, usually
secured against some form of collateral. Sector specialisation within the micro-finance
24Mix Market,’ Micro Finance in Kenya: Country Briefing’ (2010) <
http://www.mixmarket.org/mfi/country/Kenya/report#node-26111-link> accessed 6 September 2011 25ibid
26ibid
27CIA Fact Book 2010 < https://www.cia.gov/library/publications/the-world-factbook/geos/ke.html> accessed 18 August 2011
28Consultative Group to Assist the Poor, Kenya (March 2011) <
http://www.cgap.org/p/site/c/template.rc/1.26.13733> accessed 20 October 2011 29Mix Market, ‘Micro Finance in Kenya: Country Briefing’ (2010) <
industry also aids in relational contracting, reducing the perception of risk and driving
commercial trust. The simple fact of the sector’s substantial growth in Kenya is indicative
that the unique contracting strategies within the industry continue to be effective.
The Microfinance Act of 2006 imposes licensing and transparency requirements,30
deposit protection requirements (up to Ksh.100,000 per depositor)31and also makes provision
for dissolution of institutions,32 corporate governance,33 performance and accounting
standards34and supervision by the Central Bank of Kenya.35The Act was revised in 2008 to
create two categories of deposit-taking MFIs, one styled ‘community-based MFIs’ and the
other ‘nationwide MFIs’. Capital requirements were relaxed for the former, and they can
convert to the nation-wide status. Nation-wide MFIs cannot convert to community-based
status because of the lighter operational conditions.36
Non-deposit taking (or ‘credit only’) MFIs are not regulated by the Central Bank of
Kenya. They can be regulated by the Savings and Credit Cooperatives Societies Regulatory
Authority (SASRA) where they qualify as SACCOs, or by the Non-Governmental
Organisations Council under the NGO Coordination Act No.19 of 1990 if they are NGOs.
All other MFIs that do not fit any of the foregoing descriptions are unregulated – and there is
an ongoing debate on how to bring this unregulated group of MFIs under the sector’s broad
regulatory framework.37
The AMFI has adopted a code of conduct and a generic constitution that it
recommends to all its members to abide by. These efforts augment the minimum statutory 30Microfinance Act, ss 4,5,6,7,8,9,10
31ibid, The Microfinance (Deposit Taking Microfinance Deposit Protection Fund) Regulations, 2009 32Microfinance Act No.19 2006, s 38, Laws of Kenya
33ibid ss 11-22, Part III (Governance) 34ibid ss 23-34
35ibid ss 8, 37, 39, 40, 41, 42
36ibid s 7, 48(2) – implemented in: The Microfinance (Categorization of Deposit-Taking Microfinance Institutions) Regulations, 2008, Legal Notice No.57 of 2008.
37Mix Market, ‘Micro Finance in Kenya: Country Briefing’ (2010) <
standards, and importantly introduce development-orientated standards including social
responsibility, environmental management and financial sustainability.38
For purposes of this thesis, micro-finance, while serving an important economic role,
is not a solution well-suited to the kind of economic activity that private equity financing
would be financing – supporting the need for private equity’s specialised approaches and
solutions to enterprise growth.
4.3.3 Savings and Credit Cooperative Societies
Savings and Credit Cooperative Societies (SACCOS) are regulated by the SASRA, in
accordance with the SACCO Societies Act No.14 of 2008.39 As stated earlier, there were
some 6,473 such schemes as at end 2010. This estimate is inconclusive, however, as there
does not yet exist a national unified register of such entities.
SACCOs fill a critical gap left open by stringent bank regulations on personal finance.
There are generally three core types of SACCOs in Kenya, clustered according to either type
or geographic location. Firstly, there are the urban SACCOs, headquartered in Nairobi, with
branches around the main cities and towns in the country, and managing substantial asset
bases (up to KES15 billion in some SACCOs by some estimates).40 Then there are rural
SACCOs, serving rural populations (most of whom are otherwise unbanked as section 4.4
establishes). Rural SACCOs are frequently the only form of financing available in some of
Kenya’s remotest communities. Thirdly, there are employer-based SACCOs, set up by
38AMFI, ‘Kenyan MFI Practitioners Make Historic Decisions on 20thAugust 2010’ <http://www.amfikenya.com/pages.php?p=65&ID=26> ( n 17)
39ss 4 (establishment), 5 (objects and functions), 23-28 (licensing regime), 48 (regulation of SACCO Societies) 40FSD Kenya, ‘Automation of SACCOs: An Assessment of Potential Solutions’ (March 2010) 13
<http://www.fsdkenya.org/pdf_documents/10-09-22_SACCO_automation_report.pdf> accessed 19 February 2012
employers across different economic sectors to expand financing solutions to their employees.
Fourthly, there are agricultural SACCOs, linked to the main agricultural sectors in Kenya
(such as tea, coffee, rice), and they serve agricultural communities (farmers) across the
country.
In terms of structure, SACCOs fall into two types: credit only and deposit-taking
SACCOs. The former simply make credit available to members through giving their
members a flexible savings facility implementing a check-off system managed by the various
payroll services. Entry is easy and exit is easy. Members are allowed to access their savings
at any time, and when they require a loan, the terms and conditions are easy to comply with.
They generally permit members to leverage their shares up to three times (‘shares’ being the
face-value of their cash savings in their SACCO account), repayable over a maximum period
of 48 months in most cases. SACCOS have also diversified their financing products
(‘development loans’, ‘emergency loans’, ‘school fees loans’, and ‘construction loans’) while
preserving the procedural simplicity of the funding framework.41
Deposit-taking SACCOs offer front office savings activities (FOSA), and are now
subject to stringent regulations under the SASRA. It was estimated that there were about 200
deposit-taking SACCOs in Kenya in 2010, and it is on record that at least 66 more were
licensed by SASRA by the end of 2011.42
SACCOs enable the lower end of capital consumers to finance small-scale business
ventures, as well as various consumer needs. Importantly for this study, SACCOs are not
41For an illustration: Kenya Union of Savings and Credit Organisations (KUSCO), ‘Loans’ <http://www.kuscco.com/index.php/publications/cat_view/50-loans> accessed 19 February 2012 accessed 19 February 2012
42KUSCO, ‘Deposit-Taking SACCOs Licensed by SASRA’ (2011)
sources of substantial enterprise capital, and while they serve a critical socio-economic need,
the critical problem of lack of effective enterprise capital for fast growing SMEs persists.
Contextualising the foregoing framework into this study, both MFIs and SACCOs
meet a critical societal need, but do not effectively address the funding gap in Kenya.
4.3.4 Bank Loans
Medium and large enterprises in Kenya can, generically speaking, raise their
financing requirements from (i) commercial banks, (ii) development finance institutions, and
(iii) investment companies.
When providing an overview of the financial system in Kenya earlier in this chapter,
it was shown that there are 43 banks in Kenya. 31 of these are commercial banks. A review of
the broad range of bank products available to the business community shows the following
products on offer by Kenya’s banks:43
Short-term, syndicated and term loans and overdrafts – loans can be secured or unsecured – conditions vary across banks
Bonds and commercial paper
Trade finance (letters of credit, pre/post import finance, invoice and bill discounting, stock finance, guarantees and bonds, business advisory services)
Asset finance (vehicle/assets, insurance premium finance, leasing)
43Generally, Barclays Bank of Kenya Ltd < http://www.barclays.com>; Kenya Commercial Bank <
http://www.kcbbankgroup.com>; Cooperative Bank of Kenya Ltd < http://www.co-opbank.co.ke>; Standard Chartered Bank of Kenya Ltd < http://www.standardchartered.com/ke/en>; CFC Stanbic Bank <
Custodial services Transactional banking
SME loans (Cooperative Bank making available up to Ksh.50 million per borrower, and Standard Chartered Bank offering a range of specialised
products for SMEs including working capital, business expansion, business
protection, yield enhancement and cross-border banking).
Commercial bank loans and advances attracted a lending rate of 14.29% in July 2010,
compared to 13.3% in 2007, and 13.1% in 2005, while savings yielded 1.55% and deposits
3.85% returns in July 2010, compared to 1.55% and 1.7% respectively in 2007, and 1.4% for
both in 2005. Overdrafts in July 2010 attracted an interest rate of 14.03%, compared to 13%
in 2007, and 13.7% in 2005.44
As of October 2011, lending rates had risen beyond 25% for commercial loans as a
result of a devalued shilling, which shed nearly 25% of its value over the preceding twelve
months (October 2010). The main factors driving the depreciation of the Kenya shilling
included the effects of the Great Recession (which slowed down Europe as an important
export market for Kenya),45 and capital flight46 (estimated at over USD201 million – or
KES17 billion).47 Governments around the world have responded differently to the Great
Recession. In the UK, quantitative easing measures formed a central part of the credit
44Kenya National Bureau of Statistics ( 2008) < http://www.knbs.or.ke/> accessed 10 October 2011 45BBC, ‘G20 Ministers Meeting to Discuss Eurozone Debt Crisis’ (BBC, 14 October 2011) < http://www.bbc.co.uk/news/business-15302908> accessed 20 October 2011.
46Andrew Burns and Theo Janse van Rensburg, ‘Global Economic Prospects: Vulnerabilities and Uncertainties’ (The World Bank, 2012) 8, 27-28.
<http://web.worldbank.org/WBSITE/EXTERNAL/EXTDEC/EXTDECPROSPECTS/GEPEXT/0,,contentMDK :21021075~menuPK:51087945~pagePK:51087946~piPK:51087916~theSitePK:538110,00.html >
47Geoffrey Irungu, ‘Flight of sh17bn in foreign currency sparked shilling’s rapid fall as banks moved to cash in’ (Business Daily, Nairobi, 16 February 2012)
<http://www.businessdailyafrica.com/Corporate+News/Flight+of+Sh17bn+in+forex+sparked++shilling+rapid+ fall/-/539550/1329102/-/9gxeegz/-/index.html> accessed 19 February 2012
response mechanisms,48in addition to other approaches adopted generally across Western
Europe.49
Commercial banks in Kenya lend against collateral for the most part. As the
discussion below suggests, for the SME sector, business informality militates against the
accumulation of good collateral, meaning that access to substantial amounts of bank finance
to meet business needs will be a significant barrier for a large proportion of the private sector.
The effect of the Great Recession in Kenya on enterprise finance has been on the cost of bank
credit.50With strict collateral requirements, enterprises that do not have strong asset bases
find formal credit inaccessible.
4.3.5 Public Equity Markets
Public equity markets are another source of substantial enterprise finance in
Kenya, but only to specific types of businesses that can meet the stringent listing
requirements, detailed below. A company in Kenya can meet its financing requirements by
selling its shares to the public through the regulated capital markets operating under the
Nairobi Stock Exchange (the NSE). Where this avenue is adopted for the first time in a
company’s capital structuring, the process is termed an initial public offering (IPO), subject
to specified listing rules.51The Nairobi Stock Exchange (NSE) was officially established in
48David Miles, ‘Monetary Policy and Financial Dislocation’ (Bank of England, 10 October 2011)
<http://www.bankofengland.co.uk/publications/news/2011/093.htm> accessed 20 October 2011 – as of January 2012, a total of £325 in quantitative easing had been injected into the British economy.
49The World Bank, Global Economic Prospects 2012 ( n 45) 5 – including bank sector reforms, facilitated access of banks to dollar markets and medium-term ECB funding, reinforcement of European financial stability, passage of fiscal and structural reform packages in Greece, Italy and Spain, and agreement on a pan-European fiscal compact.
50The Central Bank of Kenya < http://www.centralbank.go.ke/> accessed 10 September 2011 51The Capital Markets (Securities)(Public Offers Listing and Disclosure) Regulations 2002.
1954 as a voluntary association of stock brokers registered under the Societies Act of the
Kenyan Colony.52
The NSE has three investment segments: the main investment segment or the MIMS,
the alternative investments segment or the AIMS, and the Fixed Income Security Market
Segment or the FISMS.53As of August 2011, there were 58 listed companies on the MIMS (7
agribusiness firms, 8 companies in commercial services, 2 telecommunication and technology,
4 automobiles and accessories, 10 banking, 5 insurance, 4 investment businesses, 9
manufacturing and allied firms, 5 construction and allied, and 4 energy and petroleum). There
were 8 companies on the AIMS, and 13 fixed income securities on the FISMS (including
preference shares, floating rate notes, medium term floating rate notes, medium term
unsecured notes, subordinated bonds, public infrastructure bonds, government infrastructure
bonds and treasury bonds).54In total, there are 79 listings as of 2011 - in 56 years since the
Exchange was first established.55
There is anecdotal evidence that an over-the-counter (OTC) market that expands
trading platforms within the capital markets framework is currently operational and quite
active in Kenya.56It is unregulated, however, and register keepers for trading companies are
reluctant to divulge information about their clientele. Newspaper reports suggest that as many
as 200 companies are gearing for trade within the OTC market, which became fully active
52Nairobi Stock Exchange, ‘History of the Organisation’ (Nairobi Stock Exchange, 10 October 2011) < http://www.nse.co.ke/about-nse/history-of-the-organisation.html > accessed 10 October 2011 – for a detailed history of the NSE
53The Nairobi Stock Exchange, Listing Manual, para 7.2, 31 <http://www.nse.co.ke/listed-companies/listing- rules.html> accessed 10 October 2011.
54Nairobi Stock Exchange, < http://www.nse.co.ke/> accessed 22 September 2010 55Nairobi Stock Exchange, ‘Equity Statistics’ (Nairobi Stock Exchange,10 October 2011),
<http://www.nse.co.ke/market-statistics/equity-statistics.html> accessed 10 October 2011. As of 7 October 2011, market capitalisation stood at KES884.29 billion – down from KES1.136 trillion in August 2010, and KES1.143 trillion in July, 2010. As a share of GDP, this represents a market capitalisation of 0.39486% in August 2010, and 0.39729% in July 2010 – based on current GDP calculated at USD35.611 billion at market prices.
56John Gachiri, ‘Vibrant over the counter market lists 13 new firms’ (Nairobi, Business Daily, 26 October