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Faith M. Macharia: A Leading Dispute Resolution Lawyer in East Africa

If Kioo case confirmed Faith Macharia as one of the most versatile next-generation commercial litigation lawyers in East Africa, her latest win annulling the implementation of the Minimum Tax proves she is determined to sustain the momentum.

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Faith M. Macharia, Partner ALN Kenya | Anjarawalla & Khanna

In the last year alone, Faith Macharia and the Anjarwalla and Khanna Litigation and Dispute Resolution Team have registered wins of gigantic magnitude whose impact has been felt across Africa and beyond and made much difference to the commercial interests of their clients. Two major cases stand out above all as confirmation that the A&K Dispute Resolution Team more than deserves the Litigation and Dispute Resolution Award 2021 it was recently awarded at the African Legal Awards: Kioo Case (East African Case) and the Minimum Tax Case (Kenyan Case). The common threads in these two precedent setting cases is Faith Macharia’s role as lead counsel or lead co-counsel and how the Anjarwalla & Khanna Team innovated to deliver these wins against all odds.

The Kioo Case (Kioo Limited v. Attorney General of the Republic of Kenya), which featured in the Anjarwalla & Khanna Litigation and Dispute Resolution Award citation, was a reference filed at East African Court of Justice (EACJ) on behalf of the Tanzanian glass manufacturer challenging the introduction of a 25 per cent excise duty on imported glass by Government of Kenya. Faith and the A & K Team argued on behalf of Kioo Ltd that since the Excise Duty Act does not grant exemptions to goods imported into Kenya from the EAC Partner States, the new excise rate of 25% was discriminatory as it will apply to glass imported into Kenya from Tanzania and other Partner States and inhibited the free movement of goods as envisaged in the spirit of the EAC Treaty, the Customs Union Protocol and the Common Market Protocol.

“The result is that the price of glass bottles exported into Kenya by Tanzania has become more expensive than locally manufactured glass in Kenya and therefore Kenyan companies have reduced their glass demands/imports from Tanzania… and are likely to stop importing glass from Tanzania and any other glass bottle manufacturers within the EAC Partner states,” argued Anjarwalla & Khanna on behalf of Kioo. In the end, Faith Macharia and the A&K team succeeded in obtaining the much-needed interim orders in favour of Kioo Limited with EACJ halting the implementation of the 25 percent excise duty on imported glass bottles into Kenya from the other East Africa Community (EAC). The decision has immensely impacted many businesses within the six (6) EAC members’ states importing glass and glass bottles into Kenya.

If Kioo case confirmed Faith Macharia as one of the most versatile next-generation commercial litigation lawyers in East Africa, her latest win annulling the implementation of the Minimum Tax goes to prove she is determined to sustain that momentum going into the future. Faith, acting on behalf of Kenya Association of Manufacturers and others petitioners, was part of the team of lawyers who successfully petitioned and convinced the High court of Kenya to declare the minimum tax unconstitutional. They were able to convince Justice George Odunga, as he noted in the Judgement: “It results in diminishing capital for those making losses, while for those making profits the capital base is unaffected.” This is just one of the many career defining litigation and arbitration wins Faith Macharia has under her belt.

In the 2021 Edition of The Legal 500, Faith Macharia has been ranked as a Next Generation Partner in Employment Law Practice and as a Key lawyer in Dispute Resolution in Kenya. One of the leading corporate decision makers quoted by The Legal 500 said: ‘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.’ Another one added: ‘We have been especially impressed with Faith Macharia and her demonstrable commitment to excellence and attention placed on assisting us to achieve our objectives.’ The Legal 500 added that “Faith Macharia is an up-and-coming name in employment disputes.” Chambers & Partners ranks Faith as a lawyer to watch in dispute resolution in Kenya and one who has “very good insights and is always on top of facts and strategy.”

Faith has been at Anjarwalla & Khanna for almost a decade having joined the firm as an Associate in 2012. She was promoted to A&K Partner in the A&K Dispute Resolution Department in January 2020 and is part of the Award-Winning and Africa’s Litigation and Dispute Resolution Champions of the Year. She is involved in representing the A&K’s clients in domestic, regional, and international forums including lower and superior courts, judicial and quasi-judicial tribunals and arbitration and other forums. She handles diverse matters including complex commercial disputes, trade disputes, employment disputes, shareholders’ disputes, land disputes, tax disputes and enforcement proceedings of local and international arbitral awards in Kenya.

Faith has built a strong reputation acting for clients in international arbitration and is a co–author of the 6th, 7th, 8th, 9th and 10th editions of the International Arbitration Review, Kenyan Chapter. In 2016, she was seconded to Stephenson Harwood, one of the world’s leading commercial litigation and international arbitration law firms, to broaden her perspective in International Arbitration. She has been a panelist on arbitration topics in the region in numerous forums including the 2016 and 2020 East Africa International Arbitration Conference.

In addition, she has a well-earned reputation as Anti-Corruption Law Expert having served as member of the Technical Committee on drafting Regulations and Guidelines under the Bribery Act in Kenya. She is the co–author of the Kenyan Chapter of the 2018 Chambers Anti-Corruption Global Practice Guide. Recently, she advised 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. She also acted for a client together with White and Case, the New York-based global law firm, in connection with bribery allegations in Kenya.

Faith is an Advocate of over 11 years’ post-admission standing in Kenyan bar. In 2020, she 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 is also one of the 11 member of the Law Society of Kenya Committee on Law Reform, Devolution and Constitutional Implementation. She holds an LLB (2nd Class Honours, Upper Division) from University of Nairobi and a Diploma in Law from Kenya School of Law. She is a member of the Africa Legal Network (ALN), Law Society of Kenya and East African Law Society.

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Dr. Kariuki Muigua and Environmental Dispute Resolution Mandate of PCA

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One of Dr. Kariuki Muigua's Recent Environmental Law Books: Nurturing Our Environment for a Green Tomorrow (2023)

Dr. Kariuki Muigua stands out as one of the most distinguished environmental law scholars in Africa and one of the foremost experts in Environmental law, environmental justice, sustainable development and natural resources conflict management in the World today. As a specialist scholar in environmental law and natural resources conflicts management and disputes resolution, Dr. Kariuki Muigua is highly esteemed by many in environmental law and conflict management circles as a scholar, academic, author, dispute resolution expert, mentor and consultant. He is one of the few holders of specialist PhD in Environmental Dispute Resolution which will come handy as he set to play a great role in arbitration of natural resources and environmental disputes under the auspices of the Permanent Court of Arbitration as a member of the premier global dispute resolution body nominated by the Republic of Kenya.

The Permanent Court of Arbitration has developed Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment that provide for the establishment of a specialized list of arbitrators who are considered to have expertise in the area of Environmental and Natural Resources Dispute Resolution, the specialist area of expertise of Dr. Kariuki Muigua, PhD having handled numerous international Environmental, Oil and gas/Extractives Disputes Arbitrations and Mediations around the World as a Member of ICC, CIArb and LCIA Panels. The Rules also provide for the establishment of a list of scientific and technical experts who may be appointed as expert witnesses pursuant to these Rules. The Members of the Court need not be listed in the Natural Resources and/or the Environment Disputes Resolution List as Parties to such disputes have discretion to also choose from arbitrators listed as Members of the PCA. In any case, parties to a dispute may, but are not obliged to, choose arbitrators, conciliators and expert witnesses from these Panels.

In the last decade, Dr. Muigua has earned the esteem and pride of place among leading scholars and experts for his efforts in research and scholarship in the areas of Environmental and Natural Resources Law, Environmental Law Governance, Human Rights and Constitutionalism, Environmental Justice and Conflict Resolution. He has written extensively and is at the forefront in exploring the nexus between environmental law and human rights, Land and natural resource rights, economic law and policy of governments with regard to environmental law and economics. His research in environmental law and conflict management including dozens of refereed journal articles have received hundreds of scholarly citations in the last five (5) years. He has supervised and examined several PhDs on environmental and natural resources law and conflict management as well as more than a dozen Masters of Law and Arts students specializing in environmental law and policy, dispute resolution and conflict management.

As an author in Environmental Law, Dr. Muigua has authored numerous books and leading textbooks in the area of environmental and natural resources law, justice and dispute resolution. In 2023, Dr. Kariuki Muigua has authored two published books on Sustainable Development and Environmental Management, namely, Realizing True Sustainable Development and Nurturing Our Environment for a Green Tomorrow. In addition, Dr. Muigua has contributed over dozen published book chapters in environmental law and dispute resolution in environmental governance.  He has also published dozen of articles in peer-reviewed local, regional and international journals on environmental law, environmental justice, natural resources management, sustainable development and environmental conflicts/disputes resolution. Dr. Muigua is the Founding and Managing Editor of the Journal of Conflict Management and Sustainable Development now in its eight volume after seven (8) years of publication.

Dr. Kariuki Muigua is also an Environmental Consultant, an Accomplished mediator and a Chartered arbitrator who has resolved numerous disputes touching on natural resources and extractives industry. He works with professionals in the environmental field especially in the areas of Environmental Resources and their management through Environmental Impact Assessment (EIA), Strategic Environmental Assessment (SEA), Mediation and Public Participation. He served as a Member of the National Environment Tribunal, the lead statutory adjudication body for environmental disputes in Kenya, from 2017 as Nominee of the Law Society of Kenya. Dr. Muigua has also collaborated extensively with various environmental advocacy groups in Kenya and regionally in the setting up of effective policy, legislative and institutional frameworks for the resolution of environmental conflicts. He is an ardent commentator and contributor to debates on sustainable development goals and has worked closely with many stakeholders in the areas of environmental access to Justice.

Dr. Muigua completed his PhD in Law Thesis a decade ago at the University of Nairobi researching on “Resolving Environmental Conflicts in Kenya through Mediation” focusing on the areas of Public Participation, Mediation and Environmental Democracy. His Masters Dissertation was titled “The Resolution of Natural Resource Conflicts in Kenya through Arbitration and Mediation.” He has received widespread training and experience in both international environmental law and alternative dispute resolution and conflict management over the years. Dr. Muigua teaches environmental law at the University of Nairobi Faculty School of Law, Centre for Advanced Studies in Environmental Law and Policy (CASELAP) and the Wangari Maathai Institute for Peace and Environmental Studies in the University of Nairobi. He has also facilitated seminars on Environmental Conflicts and ADR, Environment and Conflict Prevention and Environmental Impact Assessment and Environmental Audit among others. He has written several consultancy reports on environment and natural resources management whose recommendations are in application in Kenya and beyond.

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Kenya Nominates Dr. Kariuki Muigua Member of World’s Premier Arbitral Court

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Permanent Court of Arbitration (PCA) Member Representing Republic of Kenya Dr. Kariuki Muigua, PhD, C.Arb

Africa’s Leading Arbitrator and Kenya’s Top Dispute Resolution Guru Dr. Kariuki Muigua was recently nominated by the Government of the Republic of Kenya as one of its four representative members to the prestigious Permanent Court of Arbitration (PCA) based at The Hague. This latest accolade has been hailed by peers and legal industry analysts as yet another confirmation that Dr. Muigua has entered and entrenched himself in the exclusive league of international ADR practitioners. Dr. Muigua was not only Africa’s Trustee (2019 to 2022) to the Chartered Institute of Arbitrators (CIARB) but was also the first person to win the two highest Arbitration Awards in Africa in the same year. To be sure, in March 2022, Dr. Kariuki Muigua won the African Arbitrator of the Year 2022 and followed it with the African Arbitration Association (AfAA) ADR Practitioner of the Year 2022 in November 2022.

The Permanent Court of Arbitration (PCA) is the world’s premier Arbitration Institution which enjoys the status of an Intergovernmental Organization. The PCA provides administrative support in international arbitrations involving various combinations of states, state entities, international organizations and private parties. However, its functions are not limited to arbitration and include providing support in other forms of peaceful resolution of international disputes, including mediation, conciliation, and other forms of alternative dispute resolution (ADR). In turn, the members of the Court are potential arbitrators appointed by Contracting Parties. The other Kenyan members of PCA are Prof. Githu Muigai SC (Senior Counsel and Former Attorney General of Kenya now serving his Second Term at PCA), Dr. Kenneth Wyne Mutuma and Dr. Wilfred Mutubwa. Past Kenyan Members of PCA include Former Attorney General of Kenya and Busia Senator Hon Amos Wako SC, Former Chief Justice of Kenya Hon Dr. Willy Mutunga and First African Woman Member of International Law Commission since inception in 1947 Prof. Phoebe Okowa.

In view of this, there is no doubt the nomination of Dr. Kariuki by the Republic of Kenya as a Contracting Party state is proof that he meets the criteria for nominees which includes “known competency in questions of international law, of the highest moral reputation and disposed to accept the duties of arbitrators” as “Members of the Court.” Membership of PCA is so highly that in addition to forming a panel of potential arbitrators, the Members of the Court from each Contracting Party constitute a “national group,” which is entitled to nominate candidates for the election to the International Court of Justice in accordance with article 4(1) of the Statute of the International Court of Justice. In addition, the Members of the Court (along with the judges of the ICJ) are among a handful of groups entitled to nominate candidates for the Nobel Peace Prize.

The PCA itself offers a detailed profile of Dr. Kariuki Muigua as a justification of why he is one of the only four Kenyans who have been entrusted with this high office for a renewable term of six years. According to the PCA Website, “Dr. KARIUKI MUIGUA, PhD, C.Arb. Dr. Kariuki Muigua is a distinguished law scholar, Environmental Consultant, an accomplished mediator and a Chartered Arbitrator. He is a holder of a Ph. D in law from the University of Nairobi and with widespread training and experience in both international and national commercial arbitration and mediation. He served as the Chartered Institute of Arbitrators (CIArb) Regional Trustee for Africa from 2019 to 2022.” The Permanent Court of Arbitration adds that Dr. Kariuki Muigua “is an Advocate of the High Court of Kenya of over 33 years standing and practicing at Kariuki Muigua & Co. Advocates. He has on various occasions been appointed by leading arbitral institutions including the Chartered Institute of Arbitrators (CIArb-Kenya), the Nairobi Centre for International Arbitration (NCIA), the International Chamber of Commerce (ICC) and the London Court of International Arbitration (LCIA) among other institutions, as both as a sole arbitrator and a member of arbitral tribunals in arbitrations involving commercial disputes.

The Court goes on to list the prestigious awards Dr. Kariuki Muigua has garnered over the years. It notes that: “He became the first winner of the Inaugural CIArb (Kenya Branch) ADR Lifetime Achievement Award 2021. He was also the winner of the ADR Practitioner of the Year Award 2021 given by the Nairobi LSK and the ADR Publisher of the Year 2021 awarded by CIArb Kenya. He was the winner of the African Arbitrator of the Year 2022 award at the 3rd African Arbitration Awards held at Kigali Rwanda beating other competitors from Egypt, Mauritius, Ethiopia, Nigeria and Kenya. The African Arbitrator of the Year award is the highest and most prestigious ADR and Arbitration Award in Africa.” As already noted, Dr. Kariuki Muigua was also the winner of the African Arbitration Association (AfAA) ADR Practitioner of the Year 2022 in November 2022.

The Hague court also acknowledges that its Member Dr. Kariuki Muigua is prolific and published author and that “his book, Settling Disputes through Arbitration in Kenya, 4th Edition; Glenwood publishers 2022, was awarded the Publication of the Year Award 2022…. He is the author of Alternative Dispute Resolution and Access to Justice in Kenya, (Glenwood Publishers, Nairobi, 2015) and Resolving Conflicts through Mediation in Kenya, (Glenwood Publishers, Nairobi, 2013) among other books.” Indeed, more than any other African Intellectual and Practitioner, Dr. Kariuki Muigua stands out as the leading author, editor and publisher in Environmental Law and Alternative Dispute Resolution with more than a dozen books and over 200 peer-reviewed journal articles and book chapters to his name in those areas. For his status as a leading expert and practitioner in Environmental Law in Kenya he was nominated by his peers and colleagues in Law Society of Kenya to represent them as a member of the National Environment Tribunal (NET) of Kenya, recently awarded the best performing Tribunal in Kenya for handling the most cases.

In 2023, Chambers and Partners Global Guide, for the third year in a row, ranked Dr. Kariuki Muigua Ph.D in Band 1 of Dispute Resolution (Arbitrators), among the Top 6 Arbitrators in Kenya for his “astute understanding of arbitration,” being “respected for his handling of litigation,” and having “a practice that touches upon commercial, constitutional and environmental law.” In 2022, Chambers and Partners Partners had also ranked Dr. Muigua in Band 1 noting that “He has been involved in several ground-breaking arbitrations,” “has an astute understanding of arbitration” and “is respected for litigation.”

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Legal 500 Recognizes Dominic Indokhomi as Leading Individual in Banking and Finance

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Dominic Indokhomi, Bowmans Partner and the Leading Fintech Lawyer in Kenya

The Legal 500 EMEA 2023 Edition has recognized Bowmans Partner Dominic Indokhomi as one of the Top Ten (10) Leading Individuals in Kenya in Banking, Finance and Capital Markets. According to the world’s leading legal directory, Dominic is “noted for his vast experience in banking and finance and fintech work.” Bowmans is listed in Tier 1 in Banking, Finance and Capital Markets with its Practice Head Cornelius Kigera and Managing Partner Paras Shah also making it to the coveted Leading Individuals in Banking, Finance and Capital Markets list alongside Dominic.

Dominic is a Partner in Bowmans Nairobi office and a member of the firm’s General Finance and Real Estate practice. He has vast experience in banking and finance (including documentation of financial transactions, securities and debt restructuring), financial services and regulatory services (including insurance, capital markets, and retirement benefits), fintech (including payment services, digital lending, digital banking, insurtech and block chain), data protection regulations, and real estate transactions.

He has advised the Government of Kenya, the East African Community and several local and international banks and financial institutions, lenders, corporates, individual clients and other entities seeking to provide or raise or structure various forms of finance. He also regularly advises banks and financial institutions, insurance companies and intermediaries, capital markets intermediaries, payment service providers on set up and regulatory advice.

Dominic is acknowledged as one of the leading and knowledgeable lawyers on Fintech Law in Kenya and East Africa. He advised Commercial Bank of Africa (now NCBA) in relation to regulatory approval of the Fuliza product, the innovative mass lending product that allows all mobile money (M-Pesa) customers to overdraw on their e-wallets (M-Pesa wallet) to pay for goods or services in the event of insufficient funds.

Some of the clients that Dominic has advised include international and multilateral financial institutions (such as IFC, AfDB, DFC, TDB, Standard Chartered and Citibank), local banks and financial institutions (such as Stanbic Bank Kenya Limited, Equity Bank Kenya Limited, KCB Bank Kenya Limited, Absa Bank Kenya Limited), leading Fintech companies (such as Mastercard, Visa, PayPal, Stripe and Coinbase), and leading corporates (such as Britam Holdings Plc, Safaricom Plc and East African Breweries Limited).

In addition to the recognition by the Legal 500, Dominic has been ranked as Up and Coming Lawyer in the Banking and Finance (Kenya) category in 2022-2023 as well as in Band 3 for FinTech Legal (Kenya), in by Chambers and Partners Global Guide. The IFLR1000’s Financial and Corporate Guide rated Dominic as a Highly Regarded Lawyer for his work in Banking and finance in Kenya in its 2022 publication.

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