Faith M. Macharia

Faith M. Macharia

Partner | ALN Kenya | Anjarwalla & Khanna

Physical Address:

ALN House, Eldama Ravine Close, Off Eldama Ravine Road, Westlands

Postal Address:

P O Box 200-00606, Sarit Centre, Nairobi, Kenya

Telephone:

+254 703 032 000, +254 20 364 0000

Email Address:

  1. Background

    Faith Macharia is a partner at ALN Kenya|Anjarwalla & Khanna and a member of the Dispute Resolution team. Her practice includes domestic, regional, cross-border and international representation of parties before different courts, tribunals, and other forums. She has handled a blend of complex matters as the lead lawyer and as part of a team before the East African Court of Justice (EACJ), all levels of court in Kenya, several local tribunals and international tribunals appointed by the London Court of International Arbitration (LCIA). She has also represented clients before special committees of the National Assembly and The Senate, and before the Multi–Agency Team made up differently. Faith has over ten years of experience and is the principal partner for employment disputes at the firm. She has been on secondment to Stephenson Harwood, London, a leading multinational law firm.

    Her matters include complex commercial disputes, trade disputes, employment disputes, shareholders disputes, land disputes and tax disputes. She also advises on diverse employment issues and helps clients in enforcement proceedings of local and international arbitral awards in Kenya.

    Faith provides training, writes, and speaks on a wide range of contentious issues. She co–authored the 6th, 7th, 8th, 9th and 10th editions of the International Arbitration Review, Kenyan Chapter. She also co–authored the Kenyan chapter of the 2018 Chambers Anti-Corruption Global Practice Guide. She regularly speaks as a panelist on arbitration topics in the region, including at the 2016 and 2020 East Africa International Arbitration Conference.

    She is the Chairperson of the East Africa Law Society, Trade and Regional Integration Committee. The Committee comprises representatives from the seven-bar associations in the East Africa Community and select civil society organisations with the key mandate of advancing the East Africa Community integration agenda through policy formulation, legislation, advocacy, and strategic litigation at the East Africa Court of Justice. Faith is a member of the Technical Committee on drafting Regulations and Guidelines under the Bribery Act.

    Kenya’s leading business newspaper, Business Daily, rated her as one of the region’s leading women, Top 40 under 40, 2021, for her contribution to legal space.

  2. Professional Membership
    • Law Society of Kenya
    • Law Reform, Devolution and Constitutional Implementation Committee
    • East African Law Society
  3. Professional Qualifications

    2010: Admission to the Kenyan bar

    2009: Diploma in Law, Kenya School of Law

    2007: LLB (2nd Class Honours, Upper Division) University of Nairobi

  4. Career Summary

    2020 – Date: Partner, Anjarwalla & Khanna

    2016 – 2019: Senior Associate, Anjarwalla & Khanna

    2016: Associate (Secondment), Stephenson Harwood, London

    2015 – 2016: Principal Associate, Anjarwalla & Khanna Advocates

    2012 – 2014: Associate, Anjarwalla & Khanna

    2011 – 2012: Associate, MMC Africa Law (previously Muriu, Mungai & Co. Advocates)

    2009 – 2010: Legal assistant, MMC Africa Law (previously Muriu, Mungai & Co. Advocates)

    2008: United Nations Development Programme (UNDP)

  5. Awards & Accolades
    • Faith has been recognised in the category of women Top 40 under 40 by Business Daily, 2021.
    • Faith is ranked by Legal 500, 2021 as a Next Generation Partner for Employment Practice in Kenya.
    • Faith is recognised in Dispute Resolution category by Legal 500, 2021
    • Faith was nominated by The Law Society of Kenya, Nairobi Branch under two separate categories, Best lawyer of the Year and Pupil Master of the Year, 2020.
    • Faith was ranked by Chambers Global 2018 as an associate to watch in dispute resolution in Kenya.

    “Faith Macharia is well experienced in litigation, both at the Tax Appeals Tribunal and at the High Court.” – Legal 500 2022

    Faith is an “up-and-coming name in employment disputes” – Legal 500 2021

    Clients highly regarded her by noting that “Faith Macharia has unique legal capabilities. Her ability to grasp issues and argue them out in court is beyond any experience I have come across” – Legal 500 2021

    ‘’We have been especially impressed with Faith Macharia and her demonstrable commitment to excellence and attention placed on assisting us to achieve our objectives.’’ – Legal 500, 2021.

    Clients acknowledged that “she has very good insights and is always on top of facts and strategy”. – Chambers Global 2018.

  6. Top Matters
    • Acting for Kenya Association of Manufacturers (KAM), Kenya’s leading business association with over 1,000 members, in connection with one of the largest, most publicised, and highly politicised public interest tax disputes in Kenya against the Attorney General, the Kenya Revenue Authority (KRA) and the National Assembly, challenging the constitutionality of minimum tax provisions at 1% of the gross revenue of a business, irrespective of whether such companies make profit or loss. Minimum tax was introduced in Kenya for the first time in December 2020 and effective from January 2021, when businesses and the economy struggled because of disruptions caused by the Covid-19 pandemic. Further, with the closure of some businesses and job losses on the rise because of the pandemic, introducing the new tax targeting loss-making companies failed to consider the economic and social ramifications on the Kenyan taxpayers. On 20 September 2021, we successfully obtained a judgment from the High Court that declared the minimum tax provisions and guidelines unconstitutional
    • Acting for Africa Oil and group of companies in the first and high-value oil and gas dispute in Kenya filed at the High Court, Court of Appeal and Supreme Court in connection with contentious high profile Judicial Review proceedings challenging the grant of Petroleum Sharing Contracts by the Government of Kenya to Africa Oil over several oil Blocks in Northern Kenya.
    • Acting for Gamcode (trading as Betin) with foreign and local shareholding against Kenya Revenue Authority (KRA) in connection with a complex, political, landmark, and high-value dispute in five (5) different forums, calling for a well-coordinated team and thought-out strategy, the outcome of which affected the entire betting industry in Kenya. For the first time in Kenya, the Tax Appeals Tribunal and the High Court clarified the law on what makes up winnings under the Income Tax Act, Chapter 407 of the Laws of Kenya. The matter is currently pending appeal at the Court of Appeal.
    • Acting for Kenya Airways, the flag carrier airline of Kenya and one of the largest airlines in Africa, flying all across the world to top destinations in a matter seeking to stop the airline’s Ab Initio Pilots Training Programme, a scheme through which the airline trains its pilots, with no prior experience and the airline’s foreign-based pilot training programmes on among other grounds for breaching the Public Finance Management Act and for allegedly discriminating against locally trained pilots by local institutions licensed by the Kenya Civil Aviation Authority.
    • Acting for DHL, a global leader in the logistics industry specialising in international shipping, courier services and transportation in connection with two separate claims filed by its former directors and top management in Kenya against DHL involving fraudulent amendment of three (3) DHL’s employees handbooks, DHL employment policies, DHL’s compensation policies to include additional employees benefits and unauthorised approval and payment of a 13th-month cheque.
    • Acting for the Association of Kenya Insurers, an independent consultative and advisory body for insurance industry with 55 members and 4 associate members including Africa Reinsurance Corporation Ltd, the leading pan-African reinsurance company and the largest reinsurer in Africa in terms of net reinsurance written premiums in a dispute challenging the legal validity of a tender to provide a Two-Year Medical Insurance Cover to members of the Kenyan Parliament whose tenure ends on 9 August 2022 general elections.
    • Acting for Association of Kenya Insurers at the High Court and Court of Appeal against the KRA, Attorney General and National Assembly, in a petition challenging the Constitutionality of Paragraph 10 of Part II of the First Schedule of the Value Added Tax Act (VAT Act) as amended by the Tax Laws Amendment Act, 2020 and effectively seeking to reinstate insurance agencies and insurance brokerage services to the list of VAT exempt services. Getting conservatory orders suspending the further implementation of the above provisions of the law, pending the hearing and determination of the petition, and finally obtaining a judgment declaring the said provision unconstitutional.
    • Filing a without prejudice petition at the High Court on behalf of a minority shareholder against unfair, prejudicial, and oppressive actions undertaken by majority shareholders and obtaining interim orders to protect the minority shareholder’s interest, including orders stopping dilution of the minority shareholder’s shares in the Company and removal from the position of the director pending the hearing and determination of the main dispute in arbitration.
    • Acting for a client in an ongoing dispute in connection with multiple complex high-level shareholders disputes at the High Court of Kenya, the Court of Appeal, special committees of the Parliament, the Ethics and Anti–Corruption Commission and the Multi-Agency team involving a conspiracy to defraud foreign investors/shareholders and fraudulent transfer of shares in local and multinational companies whose underlying asset is land, on the background of complex commercial structures including ultimate beneficial shareholding of the client in various offshore countries.
    • Acting as lead counsel in a cross-border dispute for the Heineken Group, a leading Dutch brewing company, in connection with the disputed termination of distribution agreements with distributors in Kenya, Tanzania and Uganda. Assisting local counsel in Tanzania and Uganda following the withdrawal of cases filed in Kenyan Courts against Heineken Group by the Uganda and Tanzania distributors and subsequently filed in Uganda and Tanzania High Courts. Staying orders of the High Court at the Court of Appeal to stop the intended termination, therefore allowing Heineken Group to end the respective agreements with the distributors and enabling the client to appoint additional distributors in Kenya, Uganda, and Tanzania, ending the de facto distribution arrangement enjoyed by the distributors.
    • Representing a Ugandan oil marketer in an ongoing case at EACJ against the Government of Uganda following a decision by the Uganda Revenue Authority (URA) to issue the company with a huge tax demand arising from custom taxes on lubricants imported by the company into Uganda, on the grounds that URA’s decision was unlawful, for infringing various provisions of the Treaty for the Establishment of the East African Community, the Protocol on the Establishment of the East African Customs Union, the Protocol on the Establishment of the East African Community Common Market and the East African Community Customs Union (Rules of Origin) Rules (the EAC Rules of Origin).
    • Representing a company registered in the Republic of Tanzania against the Government of Kenya at the EACJ in a case that impacted businesses within the six (6) EAC member states importing glass and glass bottles into Kenya. The suit challenged an amendment to the Excise Duty Act, 2015, which introduced excise duty at 25% on imported glass into Kenya. The case touches on infringement of the various provisions of the Treaty for the Establishment of the East African Community, the Protocol on the Establishment of the East African Customs Union, and the Protocol on the Establishment of the East African Community Common Market.
    • Acting for a private equity fund in connection with a complex high-value post-acquisition of a business dispute filed at the London Court of International Arbitration (LCIA) for breach of warranties and misrepresentation. The sellers falsified and manipulated critical financial documents provided to the client during the due diligence process. The sellers also deleted and destroyed financial records to conceal the actual value of the business. Five experts with diverse expertise testified on behalf of the client. I’m representing the company at the High Court and Court of Appeal in ongoing enforcement proceedings of an international arbitral award, defending the company in related interpleader proceedings, and setting aside the international arbitral award.
    • Acting for a leading privately owned security services company offering security services and cash solutions in connection with two post-acquisition disputes filed before tribunals appointed by LCIA concerning completion account issues, breach of warranty and indemnity claims, pension and gratuity claims, disputes arising from the terms of a Collective Bargaining Agreement entered by the company and a union. This cross-border dispute involves several countries, including Kenya, Uganda, Tanzania, Malawi, and Rwanda. Both matters involved expert witnesses in Kenyan Employment law.
    • Successfully defending Essar Telecom Kenya in connection with a suit filed at the Employment and Labour Relations Court (ELRC) seeking an injunction to stop the conclusion of Essar’s sale of its Kenyan subsidiary, Yu, a local mobile service provider.
    • Acting for Planned Parenthood Federation of America (PPFA), in connection with a dispute filed at the ELRC involving immunity of PPFA against legal proceedings.
    • Successfully defending Simba Colt Corporation in connection with a highly sensitive and contested employment dispute on equal remuneration for work of equal value or equal pay for equal work and racial discrimination issues.
    • Advising a multinational company in connection with the disciplinary procedure under the local labour laws and assisting in the practical implementation of the disciplinary process against its employees within the legal framework and the company’s human resource policy and eventual termination of the employees following a massive fraud within the company. Successfully defending the company in multiple claims filed at the Employment and Labour Relations Court on actions taken by the company based on our advice.
    • Currently representing the company above at the High Court and Court of Appeal in ongoing enforcement proceedings of an international arbitral award and defending the company in related interpleader proceedings and setting aside of the international arbitral award.
    • Advising a large multinational in connection with anti-bribery allegations against the senior management of its affiliate company in Kenya on the Kenyan anti-bribery laws, liability of the company, the multinational and their officers and reporting obligations under the applicable statutes in Kenya.
    • Acting for a client together with White and Case, New York, in connection with bribery allegations in Kenya.

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