By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Natural Resources Lawyer and Dispute Resolution Expert in Kenya)*
Over the last several years, animal rights and welfare movement has gained momentum the world over, with many countries coming up with laws to protect the welfare of animals. Locally, the use of animals for political branding which includes painting them in indelible party colours has recently seen animal rights activists call for protection of animal rights across the country. We explore briefly the position that Kenya has taken as far as the subject is concerned and in particular the provisions of the Constitution and the Prevention of Cruelty to Animals Act animal ‘rights’ approach or the ‘welfare’ approach.
The Constitution of Kenya 2010
The Constitution of Kenya 2010 has some general provisions which cover animal rights, both domestic and wild animals. Under Chapter five, part 2, on environment and natural resources, the Constitution obligates the state to protect genetic resources and biological diversity. The Fourth Schedule also outlines the roles of the two levels of government in promoting animal welfare; the national government is responsible for protection of wild animals in conservation areas while the county governments are mandated to seeing the control and welfare of domestic animals. The Constitution thus lays a basis for other statutory legislation on the welfare of animals in Kenya.
Prevention of Cruelty to Animals Act, 1962
The Prevention of Cruelty to Animals Act was enacted in 1962 to make better provision for the prevention of cruelty to animals; to control experiments on animals and incidental matters. The Act defines acts and omissions which amount to cruelty and penalties which include cruelly beating, kicking, ill-treating, overriding, over-driving, over-loading, torturing, infuriating or terrifying any animal; or using an animal which is so diseased, injured or in such physical condition that it is unfit to be so used; or conveys, carries, confines or impounds an animal in a manner or position as to cause that animal unnecessary suffering; or without sufficient cause, starves, underfeeds or denies water to an animal; or being the owner of an animal, without reasonable cause or excuse, abandons it, whether permanently or not, in circumstances likely to cause the animal unnecessary suffering.
Further, it is animal cruelty if, being the owner of an animal, keeps it in a grossly dirty or verminous condition or, without reasonable cause or excuse, fails to procure or administer veterinary treatment or attention for the animal in case of disease, injury or delivery of young; or willfully, without reasonable cause or excuse, administers any poisonous or injurious drug or substance to an animal or causes any such substance to be taken by an animal. It is also cruelty to subject an animal to veterinary surgery in contravention of the Veterinary Surgeons Act (Cap. 366) or subjects an animal to any operation, surgical interference or other treatment which is performed without due care and humanity. In addition, if being the owner of any animal, one fails to have it destroyed where the animal is so seriously injured or diseased that to prolong its life would cause it unnecessary suffering; or hunts, kills or destroys any animal in such a manner as to cause that animal more suffering than is necessary; or being the owner of any animal, without reasonable cause or excuse, does or omits to do an act which causes unnecessary suffering to the animal, it amounts to animal cruelty.
However, the Act provides for exception to the foregoing by providing for: the hunting and killing or destruction of any animal under the provisions of the Wild Life (Conservation and Management) Act (Cap.376), the Rabies Act (Cap.365) or any other written law for the time being in force; or subject to the provisions of section 7 of this Act, the coursing and hunting of captive animals; subject to the provisions of section 8 of this Act, the slaughtering of any animal; or subject to the provisions of section 9 of the Act, the training of any animal; or the performance of an operation on an animal under the provisions of the Veterinary Surgeons Act (Cap.366); or subject to the provisions of Part III of this Act, the performance of any experiment on an animal, where the compliance with any provisions of that subsection would necessarily frustrate the object or purpose of the hunting and killing or destruction, coursing and hunting, slaughtering, training, or the performance of the operation or experiment.
In addition to the foregoing, the Act provides that a person who—causes, promotes or assists at the fighting or baiting of an animal; or keeps, uses, manages, or acts or assists in the management of, premises for the purpose, or partly for the purpose of fighting or baiting any animal, or permits any premises or place to be so kept, managed or used; or receives, or causes or procures any person to receive any money for the admission of any person to any premises kept or used for the purpose, or partly for the purpose of fighting or baiting any animal, shall be guilty of an offence. The Act also prohibits the use of traps and other devices for the purpose of capturing or killing an animal. Hunting of an injured captive animal is also an offence under the Act.
Experiments with animals are only to be performed by licensed persons.34 A person who, being the owner of an animal, permits the commission of an offence under this Act or against any regulation made thereunder in relation to that animal shall be guilty of that offence and liable to the penalties prescribed therefor. 35 Notably, an owner shall be deemed to have permitted the commission of an offence if he fails to exercise reasonable care and supervision in respect of the protection of the animal therefrom provided that, where an owner is convicted of permitting the commission of an offence by reason only of his having failed to exercise reasonable care and supervision, he shall not be liable to imprisonment without the option of a fine.36 The Act grants the court power to deprive a person convicted of offence ownership of animal. If any person is convicted of an offence under this Act or any regulation made thereunder in relation to any animal, the court may, if it thinks fit, in addition to any other punishment, make an order—depriving such person of the ownership of the animal; disqualifying such person from owning, possessing or controlling any similar kind, type or class of animal for such period as it thinks fit under the circumstances.
Prevention of Cruelty to Animals (Transport of Animals) Regulations
The Prevention of Cruelty to Animals (Transport of Animals) Regulations, 1984 provide guidelines on how animals should be transported whether by sea, air, road or rail. The Regulations require that during loading, any person who loads an animal into or unloads an animal out of a vessel, aircraft or vehicle, or who causes or permits an animal to be so loaded or unloaded, must do so in a way not likely to cause injury or unnecessary suffering to the animal. In addition, any person who transports an animal by sea, air, road or rail, or who causes or permits an animal to be so transported, must ensure that the same is done in a way not likely to cause injury or unnecessary suffering to that animal.
A person would be guilty of an offence where an animal is likely to be caused injury or unnecessary suffering—by reason of inadequately constructed or insecure fittings in that part of the vessel, aircraft or vehicle, or in the receptacle in which the animal is transported; by coming into contact with a fitting or other part of the vessel, aircraft or vehicle which has not been adequately padded or fenced-off, or with another obstruction; from unnecessary exposure to the action of the weather or the sea; from an inadequate supply of fresh air, whether the vessel, aircraft or vehicle is stationary or in motion; or from exposure to unnecessary fluctuations in or sustained high or low levels of temperature, humidity or air pressure, from unnecessary exposure to noise or vibration.
In addition, an animal under transport must be taken care of by the owner or charterer of a vessel or the operator of an aircraft in which an animal is transported by sea or air, and the transported or other person in charge of an animal transported by road or rail, ensuring ensure that—the animal is adequately fed and watered at suitable intervals during transport, including during a period in which the animal is waiting to be loaded or unloaded; where necessary, an adequate supply of food and water appropriate to the species of that animal is available in the vessel, aircraft or vehicle. As for the transportation of unfit animals, a person who loads or transports an animal that is unfit or likely to give birth during transport, or who causes or permits the loading or transportation of such animal shall be guilty of an offence unless a veterinary surgeon or an authorized officer has given prior written authority.
*This is article is an extract from an article by Dr. Kariuki Muigua, PhD; Muigua, K., “The Place of Animal Rights in Kenyan Law: Prospects and Challenges,” Available at: http://kmco.co.ke/wp-content/uploads/2020/07/The-Place-of-Animal-Rights-in-Kenyan-Law-Kariuki-Muigua-July-2020.pdf. Dr. Kariuki Muigua is Kenya’s foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized as one of the leading lawyers and dispute resolution experts by the Chambers Global Guide 2021 and nominated as ADR Practitioner of the Year (Nairobi Legal Awards) 2021.
Former KCB Company Secretary Sues Over Unlawful Dismissal
Former KCB Group Company Secretary Joseph Kamau Kania has sued the lender seeking reinstatement or be compensated for illegal sacking almost three years ago. Lawyer Kania was the KCB Group company secretary until restructuring of the lender in 2021 that saw some senior executives dropped.
Through the firm of Senior Counsel Wilfred Nderitu, Kamau wants the court to order KCB Group to unconditionally reinstate him to employment without altering any of the contractual terms until his retirement in December 2025.
In his court documents filed before Employment and Labour Relations Court, the career law banker seeks the court to declare the reorganization of the company structure a nullity and amounted to a violation of his fundamental right to fair labour practices as guaranteed in Article 41(1) of the Constitution. He further wants the court to declare that the position of Group Company Secretary did not at any time cease to exist within the KCB Group structure.
He further urged the Employment Court to declare that the recruitment and appointment of Bonnie Okumu, his former assistant, as the Group Company Secretary, in relation to the contemporaneous termination of his employment, was unprocedural, insufficient and inappropriate to infer a lawful termination of his employment.
“A declaration that the factual and legal circumstances of the Petitioner’s termination of employment were insufficient and inappropriate to infer a redundancy against him, and that any redundancy declared by the KCB Group in relation to him was therefore null, void and of no legal effect and amounted to a violation of his fundamental right to fair labour practices as guaranteed in Article 41(1) of the Constitution,” seeks lawyer Kamau.
Kamau says he was subjected to discriminatory practices by the KCB Bank Group in violation of his fundamental right to equality and freedom from discrimination as guaranteed in Article 27 of the Constitution and the termination of his employment was unfair, unjustified, illegal, null and void.
Lawyer Kamau further seeks the court to declare that the Non-Compete Clause in the 2016 Contract is unenforceable by the KCB Group as against him and is voidable by him as against the Bank ab initio, byreason of the termination of the Petitioner’s employment having been a violation of Articles 41(1) and 47(1) and (2) of the Constitution, and of the Employment Act.
He also wants the Employment Court to find that finding that KCB’s group legal representation by Messrs of Mohammed Muigai LLP Advocates law firm in respect of his claim for unlawful termination of employment resulted in a clear conflict of interest by reason of the fact that a Founding and Senior Partner at the said firm lawyer Mohammed Nyaoga is also the Chairman of the CBK’s Board of Directors.
“A Declaration that the circumstances of KCB’s legal representation by Messrs. Mohammed Muigai LLP Advocates resulted in a violation of the Petitioner’s fundamental right to have the employment dispute decided independently and impartially, as guaranteed in Article 50(1) of the Constitution,” seeks lawyer Kamau.
Kamau is seeking damages against both KCB Group and Central Bank of Kenya jointly and severally for the violation of his constitutional and fundamental right to fair labour practices.
He wants further wants court to declare that CBK is liable to petitioner on account of its breach of statutory duty to effectively regulate KCB Group to ensure that KCB complied with the Central Bank of Kenya Prudential Guidelines and all other Laws, Rules, Codes and Standards, and that, as an issuer of securities, it complied with capital markets legislation.
Kamau through his lawyer Nderitu told the court that he was involved in Shareholder engagement in introducing the Group aide-mémoire that significantly improved the management of the Annual General Meetings, including obtaining approval without voting through the Memorandum and Articles of Association of Kenya Commercial Bank Limited among others.
He said that during his employment at KCB Bank Kenya and with the KCB Group, he initially worked well with former KCB CEO Joseph Oigara until 2016 when the CEO allegedly started sidelining him by removing the legal function from his reporting line.
He further claims he was transferred from the Group’s offices at Kencom House to its offices Upper Hill under the guise that the Petitioner was merely to support the KCB Group Board.
He adds that at that point his roles were given to Okumu for reasons that were not related to work demands. He stated that Oigara at one time proposed that he should leave his role in the KCB Group and go and serve as the Company Secretary of the National Bank of Kenya Limited, a subsidiary of the Group, a suggestion which he disagreed with to Oigara’s utter annoyance.
Kamau stated that his work was thenceforth unfairly discredited, leading to his being taken through a disciplinary process whose intended outcome failed miserably, and the Petitioner was vindicated.
“More specifically, the Petitioner contends that the purported creation of a new organizational structure towards the end of 2020 was in fact Oigara’s orchestration targeted to remove certain individuals by requiring them to undergo interviews in the pretext that new roles were created, and amounted to a further violation of the Petitioner’s fundamental right to fair labour practices under Article 41(1) of the Constitution,” said in his court documents.
He further adds that this sham reorganization demonstrates how the role of the KCB Group Company Secretary purportedly ceased to be and was then very briefly replaced with a new role of the KCB Group General Counsel. The role of KCB Group Company Secretary then ‘resurfaced’ immediately thereafter, in total violation of legal and regulatory requirements.
Court of Appeal Upholds Eviction of Radcliffes from Karen Land
The Court of Appeal has stayed the decision of the Environment and Land Court purporting to reinstate Adrian Radcliffe into possession of the 5.7 Acre Karen Land by Kena Properties Ltd after eviction by the lawful owners in February 2022. Adrian Radcliffe who was evicted by Kena Properties Ltd, the innocent purchaser of the Land for value.
Before his eviction, Mr. Radcliffe had been living on the land as a squatter expatriate for 33 years without paying any rent. Since he moved into the property as a tenant, he only paid deposit for the land in August 1989 despite corresponding severally with the owner of the land. His attempt to acquire the land by adverse possession claim filed in 2005 was dismissed by Court in 2011 on the basis that he has engaged with the owner of the land July 1997 and agreed to buy the land which he failed to do. The High Court [Justice Kalpana Rawal as she then was] concluded that:
“His [Mr. Adrian Radcliffe] averments that he did not have any idea of the whereabouts of the Defendant and that he could possibly be not alive, were not only very sad but mala fide in view of the correspondence on record addressed by him to the Defendant’s wife. I would thus find that the averments made by him to the contrary are untrue looking to the facts of this case.”
On 10th March 2022, Mr. Adrian Radcliffe and Family purported to obtain court orders for reinstatement into the land. However, the Court of Appeal issued an interim stay of execution of the said orders. The Court of Appeal has now granted the application of Kena Properties Ltd and stayed the execution of the Environment and Land Court Order pending the hearing and determination of the Appeal.
The Court also stayed the proceedings at the Environment and Land Court on the matter during the pendency of the Appeal. In effect, the eviction orders issued by the Chief Magistrate Court for eviction of Mr. Adrian Radcliffe in favour of Kena Properties as the purchaser of the property for value were upheld and the company now enjoys unfettered ownership and possession of the suit property until the conclusion of the Appeal.
The Court of Appeal in granting the orders sought by Kena Properties Ltd concurred with Kena Properties Ltd that as the property owner it had an arguable appeal with a high probability of success which would be rendered nugatory if Adrian Radcliffe a trespasser was to resume his unlawful possession of the suit property, erect structures thereon, recklessly use or abuse the said suit property as he deems fit. In any case, that is bound to fundamentally alter the state of the suit property and render it unusable by Kena Properties Ltd as the property owner.
At the same time, the Appellate Court rubbished the argument of Adrian Radcliffe in opposition to the application for stay that he has been in occupation of the suit property for more than 30 years and that he and his family were unlawfully evicted from the suit property on 4th February, 2022. The Court also rejected Radcliffe’s claim that Kena Properties Ltd has no valid title to the suit property and held that as the purchaser, the company was entitled to enjoy ownership and possession of their property during the pendency of the appeal.
The Court dismissed claims of Mr. Adrian Radcliffe that Kena Properties Ltd as the property owner acquired title to the suit property illegally and unprocedurally finding to the contrary. Further, it rejected Adrian Radcliffe’s claim that Kena Properties as the purchaser cannot evict a legal occupier of a property putting paid to the claim that he was a legal occupier at the time of eviction.
As a matter of fact, Mr. Adrian Radcliffe cannot claim to be the legal occupier of the property having attempted to acquire it by adverse possession before the High Court thwarted his fraudulent scheme on 28th February 2011. Mr. Radcliffe did not appeal the 2011 High Court decision meaning it is still the law that he is not the owner of the land nor the legal occupier of the land having attempted to adversely acquire against the interests of the lawful owner who sold it to Kena Properties.
Mr. Adrian Radcliffe is a well-to-do Water, Sanitation and Hygiene (WaSH) UNICEF consultant and former UN employee (who has been earning hefty House Allowance). Many have wondered why he has been defaulting in paying rent for 33 years on the prime plot of land in Karen while living large and taking his kids to most expensive schools in Kenya. No question, a local Kenyan could never have gotten away with such selfish impunity.
Review: Journal of Conflict Management and Sustainable Development, Vol. 9, No. 1
The Journal of Conflict Management and Sustainable Development, Volume 9, Issue No. 1, which is edited by and published by Dr. Kariuki Muigua, PhD is out and stays true to the reputation of the journal in providing a platform for scholarly debate on thematic areas in the fields of Conflict Management and Sustainable Development. The current issue published in September 2022 covers diverse topics including Resolving Oil and Gas Disputes in Africa; National Environment Tribunal, Sustainable Development and Access to Justice in Kenya; Protection of Cultural Heritage During War; The Role of Water in the attainment of Sustainable Development in Kenya; Property Rights in Human Biological Materials in Kenya; Nurturing our Wetlands for Biodiversity Conservation; Investor-State Dispute Resolution in a Fast-Paced World; Status of Participation of Women in Mediation; Business of Climate Change and Critical Analysis of World Trade Organization’s Most-Favored Nation (MFN) Treatment.
Dr. Wilfred A. Mutubwa and Eunice Njeri Ng’ang’a in “Resolving Oil and Gas Disputes in an Integrating Africa: An Appraisal of the Role of Regional Arbitration Centres” explore the nature of disputes in the realm of oil and gas in Africa taking a look into the recent continental and sub-regional developments in a bid to establish regional integration. Additionally, it tests the limits of intra-African trade and dispute resolution and the imperatives for the African regional courts and arbitration centres. In “National Environment Tribunal, Sustainable Development and Access to Justice in Kenya,” Dr. Kariuki Muigua discusses the role played by the National Environment Tribunal (NET) in promoting access to justice and enhancing the principles of sustainable development in Kenya. The paper also highlights challenges facing the tribunal and proposes recommendations towards enhancing the effectiveness of the tribunal.
Dr. Kenneth Wyne Mutuma in “Protecting Cultural Heritage in Times of War: A Case for History,” argues that cultural heritage is at the heart of human existence and its preservation even in times of war is sacrosanct. It concludes that it is thus critical for states to take positive and tangible steps to ensure environmental conservation and protection during war within the ambit of the existing international legal framework. In “The Role of Water in the attainment of Sustainable Development in Kenya,” Jack Shivugu critically evaluates the role of water in the attainment of sustainable development in Kenya and argues water plays a critical role in the attainment of the sustainable development goals both in Kenya and at the global stage. The paper interrogates some of the water and Sustainable Development concerns in Kenya including water pollution, water scarcity and climate change and suggests practical ways to enhance the role of water in the Sustainable Development agenda.
Dr. Paul Ogendi in “Collective Property Rights in Human Biological Materials in Kenya,” reflects on property rights in relation to human biological materials obtained from research participants participating in genomic research. He argues that property rights are crucial in genomic research because they can help avoid exploitation or abuse of such precious material by researchers. In “Nurturing our Wetlands for Biodiversity Conservation,” Dr. Kariuki Muigua notes that Wetlands have a vital role in not just delivering ecological services to meet human needs, but also in biodiversity conservation. Wetlands are vital habitat sites for many species and a source of water, both of which contribute to biodiversity protection. The paper examines the role of wetlands in biodiversity conservation and how these wetland resources might be managed to improve biodiversity conservation.
Oseko Louis D. Obure in “Investor-State Dispute Resolution in a Fast-Paced World,” preponderance of disputes between States or States and Investors created need for a robust, effective, and efficient mechanisms not only for the resolution of these disputes but also their prevention. He notes that developing states lead in being parties to Investor-State Disputes (ISD) particularly as respondents. He proceeds to conceptualize and problematize investor-state disputes resolution in a fast-paced world. Lilian N.S. Kong’ani and Dr. Kariuki Muigua in “Status of Participation of Women in Mediation: A case Study of Development Project Conflict in Olkaria IV, Kenya” review the status of participation of women in mediation to resolve conflicts between KenGen and the community. The paper demonstrates a need for further democratization of the mediation processes to cater for more participation of women to enhance the mediation results and offer more sustainable resolutions.
Felix Otieno Odhiambo and Melinda Lorenda Mueni in “The Business of Climate Change: An Analysis of Carbon Trading in Kenya analyses the business of carbon trading in the context of Kenya’s legal framework. The article examines the legal framework that underpins climate change into the Kenyan legal system and provides an exposition of the concept of carbon trading and its various forms. Michael Okello, in “Critical Analysis of World Trade Organisation’s Most-Favored Nation (MFN) Treatment: Prospects, Challenges and Emerging Trends in the 21st Century,” highlights the rationale behind MFN treatment and also restates the vision of multilateral trade to achieve equitable and special interventions with respect to trade in goods, services and trade related intellectual property rights in the affected states.
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Court of Appeal Upholds Eviction of Radcliffes from Karen Land
Review: Journal of Conflict Management and Sustainable Development, Vol. 9, No. 1
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