SEPTEMBER 2014


Umati Capital Kenya Secures $10 million credit line from ApexPeak


Please introduce yourself and your firm.


My name is Auma Okelo and I am the Lead Associate in the Commercial Law Department at Ashitiva & Company Advocates. I hold an LL.B from the University of Bedfordshire in the United Kingdom and an LL.M from Birkbeck College, University of London.


I specialise in energy, mining, infrastructure projects and contracts. This means that I can read a 200 page document without dozing off, and tell you the difference between farming-in and farming-out (apparently neither has anything to do with farming). I balance this out with an equal passion for the finer things in life, which comes naturally from my tribal ancestry. The Luo tribe in Kenya are known for their obsession with the lush, rich life.


Ashitiva & Company Advocates is a Corporate and Commercial Law firm. We invest in long term relationships with our clients, and we measure the value of our services in the same way our clients do. We have a lot to offer, and we provide it in a way that enhances value to the client. We are also the founding member of Law Summit Africa, a network of independent law firms across Africa who have come together to facilitate cross-border business for it's clients. That’s a small part of Ashitiva & Co. Advocates difference.


We represent clients in Commercial Law, Real Estate law, Litigation, Governmental Affairs and other matters. In responding to the needs and challenges of our clients, our lawyers draw upon the firm’s expertise and experience in a broad array of industries to provide solutions to difficult, complex, and novel problems and issues, whether in commercial transactions, real estate projects, litigation and arbitration, or regulatory proceedings.


From our offices in Nairobi and Nakuru (Kenya) we practice as one firm, holding closely to core values that start with a deep commitment to our clients and the quality of our work on their behalf, and that includes an emphasis on teamwork among our lawyers and other professionals.


Our lawyers are recognized nationally and internationally for their legal skills and the depth of their expertise. The diversity of our lawyers strengthens our ability to evaluate issues confronting our clients and to communicate effectively on their behalf in any setting. And because every client is a client of the firm, not of any specific lawyer, every client has the ability to call on any of our lawyers as needed. Our national and international clients look to us for advice and judgment on a broad array of legal issues:


We have three broad Departments: Commercial Law department, Real Estate Department and Litigation Department.


• As counsel to leading private developers and


commercial banks in Kenya, our Real Estate lawyers have the combined experience and intellectual capital to successfully complete purchases, sales, financing, joint ventures, mortgage take-overs and private equity fund formations. We understand the issues presented by land use, environmental and tax issues and can take a project from development through leasing and if necessary, through litigation and workout. With offices in Nairobi and Nakuru, we are prepared to promptly, effectively and efficiently negotiate large transactions involving numerous properties and multiple parties.


• Our litigators handle civil commercial cases throughout the East Africa region. We handle arbitrations, agency proceedings, and matters before local and international tribunals. At the trial level, Ashitiva & Company litigators in recent years have prevailed in trials involving claims as diverse as employment discrimination, constitutional rights, complex insurance disputes and international commercial disputes.


• In the Commercial Department we take a multi- disciplinary approach, resulting in an ability to deliver innovative and creative solutions. Clients benefit from the collaboration of teams of lawyers having expertise in mergers and acquisitions, securities, finance, corporate governance, tax and bankruptcy. Our regulatory lawyers are recognized as experts in their fields and regularly combine their talents on behalf of the world’s top financial institutions, pharmaceutical and life sciences companies, telecommunications and technology companies, oil and gas companies, energy companies, infrastructure companies, aviation entities, sports leagues and consumer goods companies, among others. We advise on domestic trade and investment as well as international trade matters, including trade policy, international trade controls, national security and international boundary and investment disputes.


Please tell us about your involvement in this deal.


My involvement in the deal was reviewing of the agreement between Umati Capital (Kenya) Limited and ApexPeak, advising the client on the agreement and re-drafting of the agreement.


What were the main challenges that arose?


Commercial contracts that are cross-border, always comes with challenges. I am bound not to disclose the terms of this contract and consequently I cannot delve into the issues. I can however say that the challenges one would normally face in cross-border transactions are the choice of applicable law, place of jurisdiction, a suitable dispute resolution mechanism, choice of language amongst other things.


From a legal stand-point one must always be www.lawyer-monthly.com


Transactions Legal adviser to Umati Capital:


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conscious that there is a possibility that a contract may end up in a court of law, in this particular case, there was the added challenge of the transaction being cross-border and there were a number of issues that we had to navigate through to ensure the contract adequately protected our client.


How did you overcome them?


I always say that prevention is better than cure. I took pre-cautions from the beginning and certain decisions regarding the contract had to be made before we could proceed to the other terms of the agreement. Once those issues were decidedly out of the way, we could safely proceed on finalising the agreement.


Is there any need for legislative change in your opinion that would help these types of deals?


There are currently no laws in relation to Invoice Discounting, which is Umati’s core business and the basis upon which they got this credit line from Apexpeak, however, laws and regulations need to be introduced, as asset-based finance is an increasingly attractive option for micro-finance institutions.


What other deals have you been involved in recently?


We are currently involved in a number of deals that we cannot disclose as they are yet to be concluded.


Why is this a good deal for all parties involved?


For Umati Capital, this is an economic shot in the arm and this allows them to penetrate the market effectively and expand their operations. On the other hand, Apexpeak has diversified their portfolio by investing in new emerging economies, Kenya in this case, and by financing emerging micro-financing institutions.


Is there anything else you would like to add?


Africa is rising and is fast following in the footsteps of Asia. The Kenyan economy is currently the anchor of the East African Community. It has the largest and most diversified economy in the region. We expect to see much more of such transactions not only in Kenya but in Africa. Currently six of the world’s ten fastest growing economies are in Africa. LM


Contact: Auma Okelo


T: (+254)736207729


E: aokelo@ashitivaadvocates.com W: www.ashitivaadvocates.com www.lawsummitafrica.com


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