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Role of the Company Secretary in Environmental Compliance in Kenya



By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), Winner of Kenya’s ADR Practitioner of the Year 2021*

As more and more statutes impose environmental compliance requirements on corporate organizations, the role of the Company Secretary in ensuring environmental compliance in Kenya has become important. It is there necessary to examine the environmental compliance responsibilities of the company secretary as imposed by the Environmental Management and Coordination Act (EMCA), Act No. 8 of 1999 and other statutes in Kenya as questions on what is exactly required of a company to ensure environmental compliance under the Kenyan Law are going to come before the Company Secretary.  In determining the role of the company secretary relative to environmental compliance, it is necessary to look at the requirements imposed on companies and how the Company Secretary fits into the picture.

In recent years the world has experienced awareness in the area of environmentalism. More than ever, stakeholders want companies to reduce pollution, engage in cleaner production, conserve the environment and generally engage in environmentally responsible corporate behaviour. Some companies have even gone to the extent of incorporating environmental goals into their vision and mission statements. Ideas such as conservation, pollution control, recycling waste, public awareness and education, use of cleaner fuels and the use of Environmental Impact Assessment and Audits have found their way into the management principles of corporations.

The Company Secretary as the member of the management who generally oversees compliance and governance finds herself engaged in environmental issues at both policy and operational levels. In some instance, the very survival of the corporate body even hinges on how environmental issues are handled. For instance, the High Court stopped the 60MW Kinangop Wind Power Project after area residents went to court to complain about lack of public participation in carrying out the Environmental Impact Assessment (EIA) for the Project. The Company launched a Ksh. 31 billion (US 311,649,022 million) claim in international arbitration for damages incurred which was thrown out. There is no question the fortunes of the company would have turned up differently had the company secretary of the Company insisted on environmental compliance to the letter.

In some instances, the Company Secretary may even find herself engaged in issues of environmental compliance as a matter of law. There is thus a need for knowledge of what the law requires in this regard. Environmental Compliance refers to, among other things, the adherence to environmental law and all regulations and guidelines promulgated by the government and other public bodies. It may also refer to carrying out practices that serve to conserve the environment, reduce pollution and generally take into account the health and safety of human beings even where regulation is lacking. This is compliance at the moral /ethical level.

In Kenya it is usual for a person to first become aware of a law when the penal sanctions of that law catch up with him/her. Company Secretaries should therefore avoid this by noting that under the Environmental Management and Coordination Act when an offence under the Act is committed by a body corporate, the body Corporate and every director or officer of the body corporate who had knowledge of the commission of the offence and who did not exercise due diligence, efficiency and economy to ensure compliance with this Act shall be guilty of an offence. In the ongoing Arror and Kimwarer case, an alleged misleading EIA report implicated many including the NEMA Director General.

A Company Secretary is increasingly being viewed as the officer of the company responsible for environmental compliance. As a matter of fact, the law imposes a duty on the Company Secretary to ensure compliance with environmental law, rules and regulations on behalf of the Company. The penalties under EMCA are harsh and can include imprisonment and fines that ran into hundreds of thousands of shillings. Offences under EMCA relate among other things, failing to submit to inspection, offences relating to Environmental Impact Assessment; offences relating to records; offences relating to standards; offences relating to hazardous waste; offences relating to pollution; and offences relating to restoration orders.

The Act imports personal liability even where the offence complained of was committed on account of another person (corporate body). It is thus possible for a Company Secretary to be personally liable for environmental offences committed by the Company. As such, it suffices to say that the role of the Company Secretary in Environmental Compliance is a statutory one, it is not a matter of choice. A Company Secretary as an officer of the company must then logically ensure that where an Environmental Impact Assessment is prepared as required in accordance with and in compliance with the law. An Environmental Impact Assessment means a systematic examination conducted to determine whether or not a programme, activity or project will have any adverse impact on the environment.

Similarly, where an Environmental Audit is required to be carried out the Company Secretary should ensure that it is prepared in accordance with the requirements of EMCA or the regulations made thereunder. It follows also that the Company Secretary being an Officer of the Company has a duty to ensure compliance with standards set out under EMCA. If he/she does not do so then liability in criminal law attaches. The Company Secretary is also bound to ensure that hazardous waste and other chemicals and radioactive materials are handled properly. If the company is charged with an offence relating to hazardous wastes and other radioactive substances then the Company Secretary as an officer of the Company becomes liable in criminal law and may end up paying a fine of not less than one million shillings or to imprisonment for a term of not less than two years or both.

Further, EMCA creates offences relating to pollution of the environment. Thus, if a company discharges any dangerous materials, substances, oil, oil mixtures into land, water, air or aquatic environment with the result effect of polluting the environment, this attracts heavy penalties which include paying the cost of removing the pollution. Again if the company commits any of the abovementioned offences then the Company Secretary being an officer of the company incurs liability in civil and criminal law. It is discernible from the above that a Company Secretary has a big role to play in Environmental compliance. Given that the Company Secretary of today is considered part of the “mind” of the Company and a key policy maker, it is increasingly becoming difficult to argue that he/she was not aware of the legal requirement for Environmental compliance.

Sometimes environmental compliance measures take the form of fiscal incentives and disincentives rather than punishments. EMCA provides for tax and fiscal incentives, disincentives or fees which include customs and excise waiver in respect of imported capital goods which prevent or substantially reduce environmental degradation caused by an undertaking; tax rebates to industries or other establishments that invest in plants, equipment or machinery for pollution control, recycling of wastes, water harvesting and conservation, prevention of floods and using other energy resources as substitutes for hydrocarbons, tax disincentives to deter bad environmental behaviour that leads to depletion of environmental resources or that cause pollution; user fees to ensure that those who use the environmental resources pay proper value for the utilization of such resources.

The Company Secretary who is involved in strategic planning within the organization can influence planning on environmental matters so that the company embraces measures aimed at cleaner production, pollution, control, recycling of wastes, water harvesting and the use of cleaner energy resources in place of hydrocarbons. The Company Secretary can also take part in environmental awareness campaigns that corporations launch once in a while. A Company Secretary who is familiar with the environmental compliance regulations and believes in the need to conserve the environment and reduce pollution has a role to play in public education in ensuring that the public appreciates the importance of a clean and healthy environment.

Attendance and contribution at seminars by the Company Secretary may also serve to disseminate environmental education both within the company and to the communities which may be affected by the activities of the company. Often, the Company Secretary will also be involved in the drafting of agreements on environmental codes reached as a result of meetings between stakeholders within a given industry. These could be agreements on setting of environmental standards or joint cooperation with the aim of keeping the environment clean. Knowledge of environmental regulations requirements, penalties and compliance measures, thus, come in handy for the Company Secretary.

EMCA provides that every Kenyan is entitled to a clean and healthy environment and has a duty to safeguard and enhance the environment. The duty to safeguard and enhance the environment is a statutory duty which binds the Company Secretary as well. The Company Secretary should take part in “sustainable development” this being the development that meets the needs of the present generation without compromising the ability to use the same by future generations. The Company Secretary lives and works within the environment. The air we breathe, the land we walk on, the water we use, the climate, sound, aesthetics and all our surroundings form what is called the environment. We all have a duty to protect, safeguard and enhance the environment. Compliance with all regulations and initiation of measures to conserve the environment is part of the duty of the Company Secretary and indeed all Kenyans.

*This is article is an extract from an article by Dr. Kariuki Muigua, PhD,Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards): Muigua, K., Role of the Company Secretary In Environmental Compliance, 08/078_ROLE-OF-THE-C-S-IN-ENVIRONMENTAL-COMPLIANCE.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. 

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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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