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The Way Forward in Enhancing Energy Justice in Kenya

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

The most pressing energy justice concerns in Kenya at the moment include limited access to energy, high energy costs, lack of transparency, accountability and public participation in energy governance and limited adoption of renewable energy across the country. These are discussed in detail here below along with proposals for the way forward in addressing them in enhancing energy justice in Kenya.

Promoting Access to Energy

It has been reported that Kenya has witnessed one of the fastest growth in electrification within Sub-Saharan Africa with 75% of the population having access to electricity by the year 2018. The National Electrification Strategy is geared towards achieving universal electricity access to all households and businesses by the year 2022. The country has also been hailed for making notable progress in deploying renewable sources of energy. However, while the country has made great strides towards electrification, there exists a wide disparity in electrification between urban and rural areas with 84% of the population in rural areas not having electricity connection. Further, it has been reported that a household in Nairobi is 36 times more likely to have electricity than a household in Turkana or Tana River Counties. Such disparity in access to energy creates energy justice concerns with the poor and rural areas being the most affected. With the essential importance of energy as human need, it is necessary to ensure equity and fairness in respect to energy access.

In addition, household energy needs entail two components, namely, access to clean cooking facilities and access to electricity. While Kenya has made notable progress towards enhancing access to electricity through measures such as the rural electrification programme, progress remains slow in promoting clean cooking facilities. Bio-energy sources such as charcoal, wood fuel and dung remain the most common source of energy in Kenya especially among the rural population. However, use of these sources is associated with environmental challenges such as air and soil pollution and environmental degradation through deforestation. Further, it is estimated that almost 500, 000 premature deaths per year in Africa are related to household air pollution from the lack of access to clean cooking facilities, with women and children the worst affected.

There is thus an urgent need to enhance access to clean cooking facilities in Kenya. Liquefied Petroleum Gas (LPG) has been promoted as an alternative but its use is largely concentrated in urban areas due to its associated costs. Under the Energy Act, the government is mandated to facilitate provision of affordable energy services to all persons in Kenya. Measures can be put in place to enhance access to clean energy sources such reducing the costs of LPG to promote its affordability. Further, costs related to electricity such as connection charges and billing costs should be made affordable for the benefit of all Kenyans especially those in rural areas.

The Need to Lower and Stabilize the Energy Costs

Energy costs relate to the expenses of being connected and equipped with energy sources and the cost of the energy used. Energy affordability remains a challenge in most sub-Saharan African Countries due to the high cost of power relative to income. Consequently, reports have shown that electricity prices in Kenya are higher than the global average at the rate of 0.224 U.S Dollar per kWh for households and 0.192 U.S Dollar for businesses against a global average of 0.15 U.S Dollar per kWh for households and 0.12 U.S Dollar for businesses. Other sources of energy such as kerosene are affected by international prices thus unpredictable and unreliable especially among the poor.

In addition to the ongoing activism which has seen the Government being dragged to court in an attempt to arrest the escalating energy, it is noted that recently the President committed to lower the cost of electricity by 30% before the Christmas holiday. This came after the report of the Presidential Taskforce to review Power Purchase Agreements to address concerns about the high cost of electricity. The John Ngumi led Taskforce made a raft of institutional and policy recommendations in reducing the cost of electricity which saw the President deploy a new Energy Minister to oversee their implementation. There is no question the proposals to lower the cost of electricity and energy in general will have a ripple effect on other sectors given the role of energy in production.

The use of litigation to tackle the energy cost has also seen Kenya Human Rights Commission (KHRC) and individual litigants sue the Energy and Petroleum Regulatory Authority (EPRA) and other Government agencies to compel them to lower the rising cost of fuel. The high and many taxes imposed on electricity and fuels in Kenya have been identified as major reason for the high cost of energy. Recently, the High Court also gave a judgment allowing a 300MW Wind Power Plant in Marsabit after 10 years delays which is likely to lower the cost of power to proceed after undue delays. The Government has also launched a number of projects to subsidize modern and efficient household energy sources although many have met little success and more needs to be done.

Promoting Transparency and Accountability in Energy Governance

The country has in recent past witnesses several scandals in the energy sector that have threatened to derail progress towards energy efficiency and security in the country with key players being hit with numerous fraud allegations. Further, the botched Mwananchi Gas Project by the Ministry of Petroleum that was aimed at providing LPG cylinders to Kenyans at subsidized costs saw taxpayers lose more than Kenya Shillings 870 million due to shortcomings in its implementations. Effective implementation of such a plan would have been crucial in enhancing access to clean cooking facilities in the country. Such scandals have contributed to energy injustices in the country since they hinder the ability of citizens to access reliable and affordable energy services.

There is need to strengthen accountability mechanisms in the energy sector and ensure that the perpetrators of such acts are held accountable for their misdeeds. Energy Service providers such as Kenya Power should also be transparent in their affairs and ensure that citizens are aware of their obligations and are billed according to the services they consume. The Energy Act mandates the Director of Public Prosecutions (DPP) to appoint a public prosecutor for purposes of prosecuting offences under the Energy Act. This is an important step in ensuring prosecution of perpetrators of energy injustices in the country with a view of promoting energy justice.

Promoting Renewable Sources of Energy

The Energy Act defines renewable energy as ‘non-fossil energy generated from natural non-depleting resources including but not limited to solar energy, wind energy, biomass energy, biological waste energy, hydro energy, geothermal energy and ocean and tidal energy.’ Renewable energy has been hailed for its advantages which include ensuring the security of energy supply. Energy security is an essential component of energy justice since it guarantees availability of energy necessary to fulfil basic human needs.

The Energy Act establishes the Rural Electrification and Renewable Energy Corporation whose functions include inter alia to develop, promote and manage in collaboration with other agencies, the use of renewable energy and technologies, including but not limited to biomass (biodiesel, bio-ethanol, charcoal, fuel-wood, biogas) municipal waste, solar, wind, tidal waves, small hydropower and co-generation but excluding geothermal. The Corporation needs to further its efforts in promoting renewable sources of energy apart from biomass which still remains the most common source of energy in Kenya. This will be vital in promoting energy security which is an important element of energy justice.

*This is article is an extract from an article by Dr. Kariuki Muigua, PhDMuigua, K., Towards Energy Justice in Kenya, Available at: http://kmco.co.ke/wp-content/uploads/ 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. 

 

References

Achuka. V., ‘How Kenya Power Staff Stole Millions in Bills Scandal’ Daily Nation, Tuesday, December 24, 2019.

Azzuni. A., and Breyer. C., ‘Definitions and Dimensions of Energy Security: A Literature Review’ available at https://onlinelibrary.wiley.com/doi/pdf/10.1002/wene.268 (Accessed on 24/01/2020).

International Energy Agency, ‘Africa Energy Outlook 2019’ available at https://webstore.iea.org /download/direct/2892?fileName=Africa_Energy_Outlook_2019.pdf Accessed on (21/01/2020).

Moner-Girona. M et al, ‘Decentralized Rural Electrification in Kenya: Speeding Up Universal Energy Access’ Energy for Sustainable Development, Volume 52, October 2019, p 128-146.

Muchiri. L., ‘Gender and Equity in Bioenergy Access and Delivery in Kenya’ Practical Action East Africa, 2018, Available at: https://assets.publishing.service.gov.uk/media/57a08b9540f0b64974000c40/ Kenya-Gender.pdf (accessed on 23/11/2021).

Mutai. E, ‘Taxpayers Lose Sh870 Million in Botched Cooking Gas Subsidy Plan’ Business Daily, Monday, July 8, 2019.

Mutinda, F., ‘Government Ordered to Accept 300MW Wind Power Project,’ Business Today, Thursday, November 18, 2021, Available at: https://businesstoday.co.ke/govt-ordered-accept-300mw-wind-power-project/ (accessed on 23/11/2021).

Nizic. M.K., ‘The Advantages and Disadvantages of Renewable Energy in the Tourist Destination’ Conference Paper, available at https://www.researchgate.net/publication/320584990 _The_Advant ages _and_Disadvantages_of_Renewable_Energy_in_the_Tourist_Destination/link/ 59ef0c1c4585152 de64db7cc/download (Accessed on 24/01/2020).

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

World Health Organization, ‘Opportunities for Transition to Clean Household Energy in Kenya: Application of the WHO Household Energy Assessment Rapid Tool (HEART)’ available at https://apps.who.int/iris/ bitstream/handle/10665/311281/9789241514989-eng.pdf (Accessed on 23/01/2020)

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Former KCB Company Secretary Sues Over Unlawful Dismissal

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Former KCB Group Company Secretary Joseph Kamau Kania who has sued the Bank for 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.

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Court of Appeal Upholds Eviction of Radcliffes from Karen Land

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Adrian Radcliffe, the Expatriate Squatter, Evicted from Karen Property by Innocent Purchaser for Value

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.

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Review: Journal of Conflict Management and Sustainable Development, Vol. 9, No. 1

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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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