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Legal and Policy Framework on Energy Justice in Kenya



By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Natural Resources Lawyer and Dispute Resolution Expert in Kenya)*

The legal and policy framework for energy justice in Kenya includes the provision of the Constitution on energy resources, energy policy and regulation and the respective rights tied to provision of energy in the country. The Energy Act, 2019 and the institutional framework established under it as well as the National Energy Policy, 2018 are also important in safeguarding and guaranteeing the realization of energy justice in the country.  Further, the legal and constitutional provisions outlining the respective roles of the two levels of Government and how they may exercise their mandates contain crucial guidelines on energy justice.

Constitution of Kenya, 2010

The Constitution enshrines economic and social rights of all in Kenya. In particular, Article 43 of the Constitution provides for the economic and social rights of all persons. It provides for the rights of all persons to: to the highest attainable standard of health, which includes the right to health care services, including reproductive health care; to accessible and adequate housing, and to reasonable standards of sanitation; to be free from hunger, and to have adequate food of acceptable quality; to clean and safe water in adequate quantities; to social security; and to education. Access to energy is crucial for the realisation of most of these rights.

This provision was tested recently in the ongoing case where, in the quest for energy justice, the Kenya Human Rights Commission (KHRC) has sued the Ministers of Energy and National Treasury over the escalation of Energy Prices in Kenya. KHRC states in its pleadings that “the sharp rise in fuel can be attributed to a policy shift where the State abruptly suspended a fuel subsidy designed to cushion customers from higher fuel prices. The rise in fuel costs is expected to hurt Kenyans as the cost of living surges, with the prices of other commodities rising as a result of higher petrol cost.” KHRC also notes that the fuel taxes in the country are half the total amount charged at the pump and argued that the move to overtax fuel and energy is an impediment to basic rights such as food, housing, healthcare and water.

In addition to the KHRC, two private Kenyans, Isaiah Odando and Wilson Yata have moved to court to challenge the recent hike in fuel prices and seeking to quash the decision by Kenya Revenue Authority (KRA) to adjust petroleum excise duty rates on the basis that it was made without public participation. AS stated in their petition: “The decision by the Commissioner General of the Kenya Revenue Authority to adjust excise duty rates for petroleum products though discretionary has been described as a burden by the already overtaxed Kenyans and was devoid of proper public participation at a time when Kenyans are reeling from the economic consequences of the Covid-19 pandemic thereby compromising the people’s entitlement to social justice under Article 10 of the constitution.”

Further, the Constitution recognises energy as part of natural resources. Indeed, Article 260 recognizes energy as part of the natural resources in Kenya by defining natural resources as including physical non-human factors and components, whether renewable or non-renewable, including inter alia rocks, minerals, fossil fuels and other sources of energy. In turn, Article 69 of the Constitution guarantees the right of access to natural resources including energy for the people of Kenya. Equitable sharing of the accruing benefits of these natural resources is also guaranteed. Energy can be seen as an accruing benefit and therefore, Kenyan people are entitled to the benefits of the same. Thus, Article 69 (h) of the Constitution obligates the state to energy resources for the benefit of the people of Kenya and guarantee access to energy.

Consequently, the state has an obligation to ensure sustainable exploitation, utilisation, management and conservation of the environment and natural resources including energy, and ensure the equitable sharing of the accruing benefits from such resources.  The Constitution further identifies sustainable development as one of the national values and principles that is to guide the development agenda in the country. Sustainable exploitation and utilisation of energy as a natural resource will guarantee energy justice by achieving intra and inter-generational equity.

In addition, the Constitution provides for a two tier structure of government, that is, the National and the County Governments. It distributes the functions and powers between the two levels as outlined in Chapter Eleven and the Fourth Schedule. Fourth schedule specifically provides that the national Government is mandated with the protection of the environment and natural resources with a view to establishing a durable and sustainable system of development, including, in particular inter alia energy policy including electricity and gas reticulation and energy regulation. This function is not exclusive to the national Government since under county planning and development, the counties are also charged with inter alia electricity and gas reticulation and energy regulation.

Energy Act, No. 1 of 2019

The Energy Act mandates the government to facilitate the provision of affordable energy services to all persons in Kenya. In Part III, the Act establishes National Energy Entities which are the Energy and Petroleum Regulatory Authority, Energy and Petroleum Tribunal, Rural Electrification and Renewable Energy Corporation and Nuclear Power and Energy Agency. The Energy and Petroleum Regulatory Authority is mainly tasked with regulatory activities related to inter alia the generation, importation, exportation, distribution and supply of electric energy, petroleum and petroleum products, renewable energy and other forms of energy.

The Rural Electrification and Renewable Energy Corporation is tasked with overseeing the implementation of the rural electrification programme and promoting the use of renewable energy and technologies among other functions. The Nuclear Power and Energy Agency is tasked with inter alia implementation of the nuclear energy programme and promoting the development of nuclear electricity generation in Kenya. Implementation of the Act is important in enhancing energy justice in Kenya as the National Energy Entities established under the Act have the ability to promote attainment of the right to energy in Kenya. The Energy and Petroleum Tribunal is established for purposes of hearing and determining disputes and appeals relating to the energy and petroleum sector in accordance with the Act.

As stipulated under section 25 of the Act, there is no doubt the jurisdiction of the Energy and Petroleum Tribunal is capable of significantly contributing to the enhancement of energy justice in Kenya through its decisions and pronouncements. In particular, the Tribunal has jurisdiction to hear determine all matters referred to it relating to the energy and petroleum sector arising under the Energy Act or any other Act with exception of the trial of any criminal offence. It also has original civil jurisdiction on any dispute between a licensee and a third party or between licensees. Further, the Energy and Petroleum Tribunal bears appellate jurisdiction over the decisions of the Energy and Petroleum Regulatory Authority (EPRA) and any licensing authority. It is entitled to grant equitable reliefs including but not limited to injunctions, penalties, damages, specific performance.

National Energy Policy, 2018

The National Energy Policy, 2018 recognises energy as a critical component in the economy, standard of living and national security of a country. It is geared towards achieving several objectives which include inter alia improving access to affordable, competitive and reliable energy services, promoting energy efficiency and conservation and promoting diversification of energy supply sources in Kenya to ensure security of supply. It sets out several policies and strategies towards the use, development and conservation of energy sources in the country such as coal resources, renewable energy and electricity. The Policy also contains Energy efficiency and conservation measures aimed at reducing energy consumption without sacrificing productivity or increasing costs. It is an ambitious policy document that is central to the attainment of the national development blueprint, Kenya Vision 2030 and the Government‘s Big Four Agenda. Effective implementation of the Policy may promote energy security and justice in the country.

*This is article is an extract from an article by Dr. Kariuki Muigua, PhD, Muigua, K., Towards Energy Justice in Kenya, Available at: 2020/02/Towards-Energy-Justice-in-Kenya-00000005.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. 


Bildirici. M & Ozaksoy.F., ‘Woody Biomass Energy Consumption and Economic Growth in Sub-Saharan Africa’ Procedia Economics and Finance 38 (2016) 287 – 293.

Constitution of Kenya, 2010, Government Printer, Nairobi

Energy Act, No.1 of 2019, S 7(1), Government Printer, Nairobi.

Guruswamy. L, ‘Energy Justice and Sustainable Development’ Colorado Journal of International Environmental Law & Policy, Volume 21, No. 2.

Goldthau. A & Sovacool. B., ‘The Uniqueness of the Energy Security, Justice and Governance Problem’ Energy Policy, 41 (2012) 232-240.

Heffron. J.R., & McCauley. D., ‘The Concept of Energy Justice across the Disciplines’ Energy Policy 105 (2017) 658-667, available at: (Accessed on 22/11/2021).

Jenkins. K, et al, ‘Energy Justice: A Conceptual Review’ Energy Research & Social Science 11 (2016) 174- 182.

Kihiu, N., “Two in Court Over Hiked Fuel Prices as Outcry Rages on,” (Capital FM, September 2021), Available at: (Accessed on 21/11/2022).

Ministry of Energy, National Energy Policy, 2018, Government Printer, Nairobi.

Muigua. K., ‘Access to Energy as a Constitutional Right in Kenya’, available at (Accessed on 22/11/2021).

Muthoni, K., “Human Rights Body Asks Court to Force State to Reduce Fuel Prices,” (The Standard, October 2021), Available at: 2001425587/human-rights-body-asks-court-to-force-state-to-reduce-fuel-prices (Accessed on 21/11/2022).

Newell. P. & Philips. J., ‘Neoliberal Energy Transitions in the South: Kenyan Experience’ Geoforum, 74 (2016) 39-48.

Njiru. C.W & Letema. S.C., ‘Energy Poverty and its Implication on Standard of Living in Kirinyaga, Kenya’ Journal of Energy, 2018, Available at: (accessed on 22/11/2021).

Sovacool,B.K. & Dworkin,  Global Energy Justice: Problems, Principles and Practices (Cambridge Univ. Press, 2014).

Sovacool. B.K., ‘Energy Decisions Reframed as Justice and Ethical Concerns’ Energy Justice 1, available at (Accessed on 22/11/2021).

United Nations Development Programme, ‘Sustainable Development Goals’ available at (Accessed on 23/01/2020).

United Nations Sustainable Development Goals, ‘Goal No. 7: Ensure Access to Affordable, Reliable, Sustainable and Modern Energy’ available at (accessed on 22/11/2021).

United Nations Conference on Environment and Development, ‘Rio Declaration on Environment and Development’ 1992, Principles 3 and 4.

World Bank, ‘Sustainable Development Goal on Energy (SDG7) and the World Bank Group, available at (Accessed on 22/11/2021).

Yoshida. T., & Zusman. E., ‘Achieving the Multiple Benefits of a Sustainable Development Goal for Energy’ Available at Achieving_ the_SDGs_.pdf (Accessed on 22/11/2021).

News & Analysis

Why is THE LAWYER AFRICA Listing Top Law Firms and Top Lawyers?




The Litigation Hall of Fame | Kenya in 2023 (The Most Distinguished 50 Litigation Lawyers in Kenya).

We live in the age of information overload where too much information (TMI) is increasingly making it difficult to find actionable legal data about a good law firm or lawyer. At the same time, legal services are increasingly going digital and finding your next lawyer is a now a matter of a few clicks. Many existing, new and potential clients are interested to know more about the lawyer handling or likely to handle their next case or transaction as every HR Manager seeks to know how their In-house Lawyer or next hire compares to peers.

The biggest dilemma especially for commercial consumers of legal services  is where to begin the journey in finding the law firm or the lawyer to meet their immediate legal need created by their new venture,  business, transaction or dispute. In-house counsel are also called upon to justify opting for one lawyer or law firm or over the other.  Hence, the rise in the popularity of international law directories rankings as an attempt to fill the yawning gap by listing a few dozen lawyers and law firms in esoteric categories that often don’t align with the legal needs of the domestic legal market.

But ranking two dozen elite lawyers or big law firms in a big jurisdiction like Kenya there are over 20,000 lawyers is merely a drop in the ocean. The result is the same candidates are listed year after year and an In-house Legal Team looking to infuse new blood in their external counsel panel is left very little discretion. At best, International legal ranking only succeed to tilt the scales in favour of few big firms and their lawyers and to aid the choice of International Legal buyers who are constrained for time in picking their External Counsel in jurisdictions where they cannot find referrals.

The questions that beg are: What about the other top law firms and lawyers who are equally good if not better but don’t have the time to fill the technical paperwork that comes with International Legal Directories rankings? What about Domestic Legal Buyers who simply want to justify why they prefer a lawyer or law firm not listed in the International Directory? Can increasing the number of listed lawyers or law firms from less 0.1% of the profession (as captured by International Law Directories) to at least 1% of the profession or higher for those specializing in the practice area help in enhancing access to justice in Africa? Can ranking law firms by number of fee earners help in the quest for a more accurate bird’s eye view of a country’s legal landscape?

At THE LAWYER AFRICA, we have set out to list Top Law Firms and Top Lawyers in the various practice areas in a way that democratizes law rankings and listings and brings this essential value add within reach of most lawyers and every law firms doing top legal work. We don’t promise to list all the top lawyers or law firms, but we commit to make sure every lawyer or law firm we list is at the top of the game in the listed practice area. We aim to help both little known and already known law firms and lawyers doing top legal work in their area of specialization get discovered by discerning clients and possibly get more opportunities to do great work.

THE LAWYER AFRICA is looking to list up to Top 200 Law Firms in every African Jurisdiction based on their reputation and number of fee earners headcount with a goal of listing at least Africa’s Top 1,000 Law Firms which are leaders in their respective countries. We also seek to list up to Top 1,000 Lawyers in every country in Africa in at least five main practice areas, namely, Litigation, Commercial Law, Property law, In-house and Private Sector or more.

THE LAWYER AFRICA categorizes law firms in large jurisdictions as Top 5, Top 10, Top 20, Top 50 and Top 100 (and allow tying where number of counsel is equal). The Top Lawyers are listed in three categories, namely, Hall of Fame (the Distinguished Top 50 or 75 Practitioners in a Practice Area), Top 100 (the Leading Top 100 Practitioners in a Practice Area) and Up-and-Coming (the promising Top 50 or 75 Practitioners in a Practice Area).  The placing of a listings depends on a number of key factors including the number of key matters or transactions handled, years in practice and experience, size of team working under a counsel, reputation and opinion of peers (where available) as established by THE LAWYER AFRICA.

THE LAWYER AFRICA prefers to list a counsel in only one listing, as far as possible. The Team tries (as far as possible) not to contact listed law firms or lawyers before the listing is finalized in the first. However, a listed law firm or lawyer may be contacted at the pre-launch stage of a list for purposes of selling merchandise relating to the launch but such engagement will not affect the listing. In case of future listings, it is expected that interested lawyers or law firms who feel they were previously left out of the list may to provide information for consideration to determine if they qualify for the next listing but that will not guarantee any listing.

THE LAWYER AFRICA undertakes not to charge for listing any lawyer or law firm. However, upon publication of a listing, as part of recovering the sunk costs we incur in the research and publication of the listings, we shall charge a token for printing and shipping of Quality A3 Certificate for listed Law Firms and/or A4 Certificate for listed Lawyers who wish to have or display the branded souvenirs or to use our proprietary digital materials in their business  branding. We may also charge listed and unlisted law firms and lawyers an affordable fee for limited banner advertising or publishing of enhanced profiles next to the listings.

For any question or feedback on any list or listing, feel free to contact THE LAWYER AFRICA PUBLISHER at info[at]thelawyer[dot]africa.

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News & Analysis

The Roles of the Three Parts of the Permanent Court of Arbitration




H.E. Amb. Marcin Czepelak, the Fourteenth Secretary-General of the Permanent Court of Arbitration (PCA)

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News & Analysis

Brief History of the Permanent Court of Arbitration (PCA)




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

The Permanent Court of Arbitration (PCA) is a 124 Years Old Intergovernmental Organization currently with 122 contracting states. It was established at the turn of 20th Century during the first Hague Peace Conference held between 18th May and 29th July 1899. The conference was an initiative of then Russian Czar Nicholas II to discuss peace and disarmament and specifically with the object of “seeking the most effective means of ensuring to all peoples the benefits of a real and lasting peace, and, above all, of limiting the progressive development of existing armaments.” The culmination of the conference was the adoption of a Convention on the Pacific Settlement of International Disputes, which dealt not only with arbitration but also with other methods of pacific settlement, such as good offices and mediation.

The aim of the conference was to “strengthen systems of international dispute resolution” especially international arbitration which in the last century had proven effective for the purpose with number of successful international arbitrations being concluded among Nations. The Alabama arbitration of 1871-1872 between the United Kingdom (UK) and the United States (US) under the Treaty of Washington of 1871 culminating in the arbitral tribunal’s award that the UK pay the US compensation for breach of neutrality during American Civil War which it did had demonstrated the effectiveness of arbitration in settling of international disputes and piqued interest of many practitioners in it as a mode of dispute resolution during the latter years of the nineteenth century.

The Institut de Droit International adopted a code of procedure for arbitration in 1875 to answer the need for a general law of arbitration governing for countries and parties wishing to have recourse to international arbitration. The growth of arbitration as a mode of international dispute resolution formed the background of the 1899 conference and informed its most enduring achievement, namely, the establishment of the PCA as the first global mechanism for the settlement of disputes between states. Article 16 of the 1899 Convention recognized that “in questions of a legal nature, and especially in the interpretation or application of International Conventions” arbitration is the “most effective, and at the same time the most equitable, means of settling disputes which diplomacy has failed to settle.”

In turn, the 1899 Convention provided for the creation of permanent machinery to enable the setting up of arbitral tribunals as necessary and to facilitate their work under the auspices of the institution it named as the Permanent Court of Arbitration (PCA). In particular, Article 20 of the 1899 Convention stated that “[w]ith the object of facilitating an immediate recourse to arbitration for international differences which it has not been possible to settle by diplomacy, the signatory Powers undertake to organize a Permanent Court of Arbitration, accessible at all times and operating, unless otherwise stipulated by the parties, in accordance with the rules of procedure inserted in the present Convention.” In effect, the Convention set up a permanent system of international arbitration and institutionalized the law and practice of arbitration in a definite and acceptable way.

As a result, the Permanent Court of Arbitration (PCA) was established in 1900 and began operating in 1902. The PCA as established consisted of a panel of jurists designated by each country acceding to the Convention with each country being entitled to designate up to four from among whom the members of each arbitral tribunal might be chosen. In addition, the Convention created a permanent Bureau, located in The Hague, with functions similar to those of a court registry or secretariat. The 1899 Convention also laid down a set of rules of procedure to govern the conduct of arbitrations under the PCA framework.

The second Hague Peace Conference in 1907 saw a revision of the 1899 Convention and improvement of the rules governing arbitral proceedings. Today, the PCA has developed into a modern, multi-faceted arbitral institution perfectly situated to meet the evolving dispute resolution needs of the international community. The Permanent Court of Arbitration has also diversified its service offering alongside those contemplated by the Conventions. For instance, today the International Bureau of the Permanent Court of Arbitration serves as a registry in important international arbitrations. In 1993, the Permanent Court of Arbitration adopted new “Optional Rules for Arbitrating Disputes between Two Parties of Which Only One Is a State” and, in 2001, “Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment”.


PCA Website: (accessed on 25th May 2023).

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