Intellectual Property

Film is a powerful vehicle for entertainment and education. It grants us the opportunity to reflect on the diverse cultures around us and opinions of society. Over the last two decades, the Film Industry in Kenya has experienced tremendous growth with increased production of content by both local and foreign film companies. Some of the famous films and documentaries produced in Kenya include: the legendary local television series, Vioja Mahakamani; the captivating wildlife documentary, Big Cat Diaries; the inspiring movie, The First Grader;  and the relatable and humorous series, Njoro wa Uba among many others.

So, what are the legal requirements for filming in Kenya?

Filming in Kenya is governed by the Film and Stage Play Act, Cap. 222 of the laws of Kenya, (hereinafter referred to as “the Act”), which provides guidelines for the making and exhibition of films, licensing of film production companies and film agents. The Kenya Film Classification Board, a state corporation, established under Section 11 of the Act, is responsible for regulating the creation, broadcasting, possession, distribution and exhibition of films by:

• examining every film and every poster submitted to it for purposes of classification;
•  imposing age restriction on viewership; and
• giving consumer advice, having due regard to the protection of women and children against sexual exploitation or degradation in cinematograph films and on the internet,

as stipulated in Section 14 of the Act. It is also the body mandated to license film production companies and film agents in Kenya.

Obtaining a Film Licence:

A film license is an imperative prerequisite for one to film in Kenya.

Section 4(1) of the Film and Stage Plays Act stipulates that “..no film shall be made within Kenya for public exhibition or sale either within or outside Kenya except under and in accordance with the terms and conditions of a filming licence issued by the licensing officer..” It is therefore essential that prior to commencing any filming activities, one must have a valid film license.

A film license is issued by the licensing officer at the Kenya Film Classification Board upon a successful application. The application for a film license must be made in the prescribed form and accompanied by the following documents as stipulated in Section 5 of the Act:

• a story synopsis;
• a full description of the scenes;
• the full text of the spoken parts of the entire film, if any

among other items.

If the film synopsis is in a language other than English, a translation in English must be provided.

Upon receipt of the application, the licensing officer may in his discretion in any particular case accept an application notwithstanding that it is not accompanied by such description and text if he has been given such other information as he requires for the determination of the application.        

Pursuant to Section 6 of the Act, upon receipt of the application, the licensing officer may exercise his/her discretion, in issuing or refusing to issue a filming license. Alternatively, the licensing officer may provide the conditions to be met by the applicant for the issuance of the license and for the period of its subsistence.  

The requirement for a film license, similarly, applies to foreign companies wishing to film in Kenya. Foreign companies are required to apply for the film license through a licensed local film agent or may apply to be registered as film agent then apply to be issued with the film licence.

In addition to the documents stipulated above, a foreign film company will be required to provide the following documents:

• a list of all the foreign crew members and acting team; clearly outlining their roles in the production of the film;
• a list of all the equipment that the company intends to bring into the country for purposes of filming; clearly indicating their serial numbers and the value for each equipment;
• copies of the foreigners’ passports, accompanied with their passport size photographs;
• the estimated budget to be spent in the country;
• a filming schedule from the time of entry into the country to the conclusion of the filming process; and
• a letter stating the company’s desire to film in the country,

among other things.

Prior to commencing filming activities in Kenya, it is crucial that all foreign crew members obtain Special Passes and/or Work Permits from the State Department of Immigration of Kenya.

Additionally, a nominal and non-refundable import charge is levied on the total quantity of imported film equipment per consignment, payable to Kenya Revenue Authority.

Also, anyone intending to use an unmanned aerial vehicle (UAV) or a drone while filming in Kenya requires a permit to import the drone, and the drone to be registered by the Kenya Civil Aviation Authority (“KCAA”) in order to operate a drone lawfully.

Registration as a Filming Agent or Company:

Film Agents in Kenya generally comprise of duly incorporated companies. A Film Agent must be a local private limited liability company (“LLC”) or a local limited liability partnership (“LLP”). The Film Agent will facilitate location scouting, transport, hotel reservation, film licenses, shipping of equipment among other things.

All the applicant needs to demonstrate is that it is a duly registered company and that its executives possess the relevant and necessary qualifications.

If the foreign filming company wishes to be registered as Film Agent because it wants more control or intends to shoot more films or television series, it is preferable for them to register or incorporate a local subsidiary of the foreign company, that is, a LLC or a LLP. Such local business entities have certain advantages such as tax transparency and lower tax rates, over foreign entities.  

An application for registration as a Film Agent is also submitted to the licensing officer at the Kenya Film Classification Board and must be accompanied by the following documents:

1. a copy of the Certificate of Incorporation of the company;
2. Value Added Tax Certificate; and
3. the CVs and professional qualifications of the directors of the company.

_{OT Advocates provides specialist legal advice to companies and individuals on all aspects of filming in Kenya. If you would like to discuss anything in this article or any other film related matter, please speak to Rutto at etarus@otadvocates.co.ke}