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Corporate Civil and Criminal Liability for Environmental Non-Compliance in Kenya

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

Civil liability against corporations for environmental breaches occurs in the form of compensation and damages aimed at bringing the property or person affected by such acts as far as possible to the condition they were before the breaches occurred. Civil remedies for environmental protection can be classified according to their intended function which could be preventive, compensatory, reparatory or natural restitution. In addition to enshrining the right to clean and healthy environment, the Constitution sets out obligations in respect of the environment. Breach of these obligations may result in enforcement of environmental rights under article 70 of the Constitution which empowers the Environment and Land Court to grant civil remedies such as compensation to the victim or orders of injunction to prevent, stop or discontinue any act or omission that is harmful to the environment.

In addition to these remedies, EMCA provides for environmental restoration orders, conservation orders, and easements as part of civil remedies for environmental breaches. Consequently, corporations in Kenya found liable for environmental breaches have been imposed with civil consequences. For instance, in John Mutungu Waititu –vs- China Wuyi (Kenya) Co. Limited (2018) eKLR, the Respondent had leased the Appellant’s land for a period of one year, with the purpose of excavating murram. After excavating the murram, the Respondent failed to push back the top soil in order to make the ground level and leave the ground the way they had found it. This in turn left the land vulnerable and prone to grave environmental degradation. The Court found the Respondent liable and imposed civil remedies including; nominal damages of Kshs. 25,000 and a Restoration order directing the Respondent move to the Appellant’s land and ensure that the same is restored to sound environmental standards not harmful to the environment and to the area residents and animals.

Civil liability for environmental breaches by corporations follows common law principles such as the strict liability rule. The rule was laid down in the case of Rylands vs Fletcher which imposes strict liability on the owner of land for damage caused by the escape of substances to his or her neighbour’s land. Courts in Kenya have applied the strict liability rule and imposed civil liability on corporations for actions that have resulted in damage to the adjacent lands. In Esther Wanjiru Mwangi & 3 Others vs Xinghui International (K) Limited, the defendant dumped large quantities of lead wastes on a road adjoining the Plaintiffs’ land and as a consequence, the hazardous wastes negatively affected the Plaintiff’s crops and animals.

The plaintiffs lost three cows due to indigestion of the poisonous waste material and argued that continued dumping and staying on site of the waste posed real danger to their health as well as to their animals and crops. The court found the Defendant liable for negligence as established in Rylands –vs-Fletcher and granted several civil remedies in favour of the Plaintiffs including Kshs. 270,000/= being the value of the dead cows, an order directing the defendant to remove the dumped lead contaminated soil and waste on the road between its land and the Plaintiffs’ parcels and a mandatory injunction restraining the Defendant from dumping any contaminated waste from its factory to the Plaintiff’s land parcels.

Corporations therefore have to guard against instances of environmental damage since their actions can give rise to civil liability. It is clear that the Courts in Kenya readily apply the Sustainable Development “Polluter Pays Principle” which provides that the polluter bears the expenses of carrying out pollution prevention measures or paying for damage caused by pollution. As a principle of equity, it aims at introducing environmental costs in economic decision making in order to achieve sustainable development. This principle has been enforced by courts in Kenya by compelling corporations to undertake environmental restoration orders and pay damages for environmental pollution and take responsibility for their acts and omissions that affect the environment.

In addition to civil liability, EMCA imposes environmental criminal liability by outlining several environmental offences which including offences related to inspection, offences related to Environmental Impact Assessment, offences related to records and standards and offences related to and also prescribes penalties for these offences. Further, the Act also empowers environmental inspectors appointed under the Act, subject to the Constitution and section 29 of the Office of the Director of Prosecution Act, to institute and undertake criminal proceedings against any person before a court of competent jurisdiction (other than a court martial) in respect of any offence alleged to have been committed by that person under EMCA.

The Act provides that, when an offence is committed by a body corporate, the body Corporate and every director or officer who had knowledge of the commission of the offence and who did not exercise due diligence, efficiency and economy to ensure compliance with the Act shall be guilty of an offence (emphasis added). Thus, where an Environmental Impact Assessment is required, a corporation should ensure that it is prepared in accordance with EMCA and the Environmental (Impact Assessment and Audit) Regulations, 2003. Where an environmental audit is required, the corporation should conduct it as provided by EMCA and the regulations. Further, corporations in the manufacturing sector should comply with requirements on hazardous wastes and chemicals in handling wastes from their industries.

Environmental compliance is required by corporate organizations under EMCA. The foregoing discussion has demonstrated that breach of environmental compliance may result in civil and criminal sanctions upon an organization. It is clear that the wellbeing if not the survival of any corporate organization may depend on how environmental compliance issues are handled. This relates to the sanctions that may be imposed for breach of environmental compliance requirements such as damages or closure of the corporation. Officers of corporations such as directors and company secretaries have to ensure that all environmental laws, regulations and policies are adhered to. Breach of this duty may result in both civil and criminal liability under EMCA. Corporates need to be aware of the legal provisions in regard to civil and criminal liability and comply accordingly to avoid incurring liability.

*This is article is an extract from an article by Dr. Kariuki Muigua, PhD Muigua, K., “Providing Legal Advice on Corporate Environmental Compliance in Kenya,” Available at: http://kmco.co.ke/wp-content/uploads/2021/05/Corporate-Environmental-Compliance-in-Kenya-May-2021.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

Al Ouran, N.M., ‘Analysis of Environmental Health linkages in the EIA process in Jordan,’ International Journal of Current Microbiology and Applied Sciences, Vol. 4, No. 7, 2015, pp. 862-871.

Climate Change Act, No. 11 of 2016, Government Printer, Nairobi.

Companies Act, No. 17 of 2015, Government Printer, Nairobi.

Constitution of Kenya 2010, Government Printer, Nairobi.

Cortec Mining Kenya Limited v Cabinet Secretary Ministry of Mining & 9 others [2015] eKLR.

Declaration of the United Nations Conference on the Human Environment Stockholm, 16 June 1972, available at https://legal.un.org/avl/ha/dunche/dunche.html (Accessed on 25/11/2021).

Environmental Management and Co-Ordination Act (EMCA), No. 8 of 1999, Government Printer, Nairobi

Environmental (Impact Assessment and Audit) Regulations, 2003 Legal Notice No. 101 (June 13, 2003),

Environment Management and Co-ordination (Air Quality) Regulations, available at http://www.nema.go.ke/index.php?option=com_content&view=article&id=31&Itemid=171 (Accessed on 25/11/2021).

Environment Management and Co-ordination Water Quality Regulations, 2006 Legal Notice No. 120 (September 4, 2006).

Environmental Management: The ISO 14000 family of International Standards, available at https://www.iso.org/files/live/sites/isoorg/files/archive/pdf/en/theiso14000family _2009.pdf (Accessed on 25/11/2021).

Environmental protection Agency, ‘Strategic Environmental Assessment,’ Available at http://www.epa.ie/monitoringassessment/assessment/sea/#.Vi5tmGuJ2CA (Accessed on 21/11/2021).

Esther Wanjiru Mwangi & 3 others v Xinghui International (K) Limited, High Court of Kenya at Nakuru, Civil Suit No. 144 of 2009 (2016) eKLR.

John Mutungu Waititu –vs- China Wuyi (Kenya) Co. Ltd, Environment and Land Court at Nyahururu, ELC Appeal No. 25 of 2017, (2018) eKLR.

Kenya Association of Manufacturers & 2 others v Cabinet Secretary – Ministry of Environment and Natural Resources & 3 others [2017] eKLR.

Krstinić, D., Bingulac, N., & Dragojlović, J., “Criminal and civil liability for environmental damage,” Economics of Agriculture 64, no. 3 (2017): 1161-1176.

Muigua K, ‘Strengthening the Environmental Liability Regime in Kenya for Sustainable Development,’ Available at: http://kmco.co.ke/wp-content/uploads/2019/09/Strengthening-the-Environmental-Liability-Regime-in-Kenya-for-Sustainable-Development-Kariuki-Muigua-26th-April-2019.pdf(Accessed on 25/11/2021).

Muigua. K, ‘Legal Aspects of Strategic Environmental Assessment (SEA) and Environmental Management, available at http://kmco.co.ke/wp-content/uploads/2018/08/Legal-Aspects-of-SEA-andEnvironmental-Management-3RD-December-2016.pdf (Accessed on 25/11/2021).

Muigua, K, ‘Towards Meaningful Public Participation in Natural Resource Management in Kenya’ available at http://kmco.co.ke/wp-content/uploads/2018/08/TOWARDS-MEANINGFUL-PUBLICPARTICIPATION-IN-NATURAL-RESOURCE-MANAGEMENT-IN-KENYA.pdf (Accessed on 25/11/2021).

Muigua. K, ‘Role of the Company Secretary in Environmental Compliance’ available at http://kmco.co.ke/wp-content/uploads/2018/08/078_ROLE-OF-THE-C-S-IN-ENVIRONMENTALCOMPLIANCE.pdf (Accessed on 30/11/2019).

Rylands vs Fletcher [1861-73] ALL ER REP 1.

Save Lamu & 5 Others v NEMA & another, Tribunal Appeal No. NET 196 of 2016.

Sustainable Development Goals, available at https://www.undp.org/content/dam/undp/ library/ corporate/brochure/SDGs_Booklet_Web_En.pdf (Accessed on 25/11/2021).

Vícha, O, The Polluter-Pays Principle In OECD Recommendations And Its Application In International And EC/EU Law, Czech Yearbook of Public & Private International Law, Vol. 2, 2011, pp. 57-67.

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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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Dr. Kariuki Muigua: The Making of Top Arbitrator in Africa

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African Arbitrator of the Year 2022 Dr. Kariuki Muigua's Journey to the Top of ADR in Africa is a Case Study of Excellence

The journey of Dr. Kariuki Muigua to becoming the African Arbitrator of the Year 2022 has seen him painstakingly and consistently research, teach, write, edit, publish, train, mentor and practice arbitration, alternative dispute resolution (ADR), conflict management and dispute resolution for the last 30 years with excellence as a leading lawyer, authoritative scholar and ADR expert. Today, Dr. Kariuki Muigua, Phd, C.Arb is a Chartered Arbitrator and the African Trustee of the Chartered Institute of Arbitrators and the African Arbitrator of the Year 2022. He is an advocate of 33 years standing and the Managing Partner of Kariuki Muigua & Co. Advocates. He is also the author of the Leading Textbooks on ADR, Mediation and Arbitration including the seminal Settling Disputes Through Arbitration in Kenya, now in 4th Edition. Dr. Kariuki Muigua is ranked at Band 1 by Chambers & Partners among the leading Arbitrators in Kenya noting that “He has been involved in several ground-breaking arbitrations,” “has an astute understanding of arbitration” and “is respected for litigation.”

Dr. Kariuki Muigua is also both the founder, publisher and editor of Africa’s leading Conflict Management Journal as well as one of the PhD Academics who majored in resolution of Natural Resources and Environmental Conflicts using mediation. Dr. Kariuki Muigua is also a leading author in the area of conflict management and has published several books on the topic including Resolving Conflicts through Mediation and Natural Resources and Environmental Justice in Kenya. It is these exploits that have left many of his admirers convinced that his next stop would be Professorship and admission to the Rank of Senior Counsel.

As an ADR Practitioner, Dr. Muigua was declared the first ever winner of the Chartered Institute of Arbitrators (Kenya Branch) ADR Lifetime Achievement Award, the highest honour given by the Institute to one member every year for his immense contribution to the growth of practice, research and scholarship of ADR in Kenya and across Africa. The award came barely a week after Dr. Muigua had won the coveted Law Society of Kenya ADR Practitioner of the Year Award at the 4th Edition of the Nairobi Legal Awards. LSK recognized Dr. Muigua for his outstanding practice in ADR and especially arbitration and his role as mentor to many lawyers venturing into the area. Dr. Kariuki Muigua was also awarded the ADR Publisher of the Year for his scholarship, authorship and editorship of leading research and publications on ADR in Africa including the Journal of Conflict Management and Sustainable Development and Alternative Dispute Resolution, the Official Journal of the CIArb (Kenya).

The tripartite awards have been hailed by many of Dr. Kariuki Muigua’s peers in the ADR and Arbitration fraternity as a fitting tributes to his made immense contribution to mainstreaming of alternative dispute resolution (ADR) and especially arbitration as way of resolving disputes in Kenya, East Africa and across Africa in the last two (2) decades. Indeed, starting in 2002 when Dr. Muigua took the Special Member Course leading to membership to the Chartered Institute of Arbitrators (MCIArb), Dr. Muigua one of the staunchest advocates of ADR in Africa in addition to becoming the foremost intellectual voice shaping ADR practitioners and scholars of the future. The contribution of Dr. Kariuki Muigua to the alternative dispute resolution (ADR) sector has taken many shapes and forms including as a practitioner, leader, policy maker, scholar, author, trainer, mentor and trailblazer among others.

Dr. Muigua is a leading Alternative Dispute Resolution (ADR) practitioner in Kenya, Africa and the world at large who has been recognized nationally and globally by peers. The world leading peer-reviewed lawyers’ directory, Chambers and Partners, rates Dr. Kariuki Muigua as one of the best alternative dispute resolution experts in the country. It describes as ‘a highly respected arbitrator and mediator with a sterling background in commercial and constitutional cases, as well as matters relating to the environment and natural resources.’ The most recent ranking adds: “Kariuki Muigua of Kariuki Muigua & Co is held in high regard by market commentators for his role in the Kenyan arbitration sphere. He possesses stellar experience in commercial and constitutional disputes, as well as environmental matters and those relating to the extractive industries. In addition to being “a big noise in the arbitration association,” he is widely recognized for his academic work.”

Dr. Muigua has served in many panels as an arbitrator appointed by the Chartered Institute of Arbitrators (CIArb)-Kenya, the Law Society of Kenya (LSK), the Nairobi Centre for International Arbitration (NCIA), the London Court Of International Arbitration (LCIA) and the International Court of Arbitration under the auspices of the International Chamber of Commerce (ICC) on several occasions as a sole arbitrator and a member of arbitral tribunals in arbitrations involving commercial disputes. He has vast experience and expertise in adjudication and has sat as both as a panel member and a chairperson in various adjudication Boards both locally and internationally. He is also an accomplished mediator and has successfully presided over numerous matters both as a private mediator and a court appointed mediator under the Court-Annexed Mediation program in Kenya.

Dr Muigua was elected (unopposed) to the Chartered Institute of Arbitrators (CIArb) Board of Trustees as the Regional Trustee for Africa, for the term beginning 1 January 2019. Previously, he served as the Branch Chairman of CIArb-Kenya from 2012 to 2015. He also served CIArb as Member and past Chairperson of the Sub-committee on Information Technology (IT), CIArb and as Member of the Legal Committee Chartered Institute of Arbitrators (CIArb) – Kenya chapter. He is a Fellow of Chartered Institute of Arbitrators (CIArb)-Kenya chapter. He is also a member of the London Court of International Arbitration (LCIA), Chartered Institute of Arbitrators (UK) and Kenya Branch. He is also a Member of Kigali International Arbitration Centre (KIAC) and Nairobi Centre for International Arbitration (NCIA). For his contributions, he was awarded Chartered Institute of Arbitrators Chairman’s Medal with a citation for exemplary service in December, 2015.

In policy-making, Dr. Kariuki Muigua is currently a member of the National Steering Committee for Formulation of the Alternative Dispute Resolution Policy representing the Academia since 2020. The team is providing guidance and overseeing the process for formulation of a national policy and institutional framework on Alternative Dispute Resolution (ADR) in Kenya. He has also served as Member of the Meditation Accreditation Committee Panel of Mediators Accredited for Commercial Mediation under the Judiciary of Kenya. Recently, he led negotiations that achieved partnership with Chartered Institute of Arbitrators UK on GPR 625 (International Commercial Arbitration) for University of Nairobi LLM students to achieve membership status without further tests, 2020 to 2023.

On ADR Scholarship, Dr. Muigua is the author of the leading textbook on Arbitration in Kenya, namely, Settling Disputes through Arbitration in Kenya, now in its 4th Edition (2022) and available for free download, Alternative Dispute Resolution and Access to Justice in Kenya (2015) and Resolving Conflicts through Mediation in Kenya (2013). He has been cited hundreds of times as an ADR Scholar, contributed at least 3 chapters of published books, authored dozens of peer-reviewed articles in the areas of arbitration and alternative dispute resolution and presented over two dozen papers on ADR in diverse fora. Dr. Muigua has also facilitated numerous trainings, workshops and conferences on ADR. He has supervised and supervised at least two (2) completed PhD thesis on ADR, Dozens of Masters Thesis and is supervising three (3) PhDs in the area as a lecturer and mentor in ADR practice and scholarship. Dr. Muigua is a lecturer in International Commercial Arbitration at the University of Nairobi and tutor, trainer and assessor at the Chartered Institute of Arbitrators (Kenya Branch).

Dr. Kariuki Muigua is a Chartered Arbitrator (since January 2015) and Fellow of the Chartered Institute of Arbitrators (since October 2010) and Member of the Chartered Institute of Arbitrators (since 2002). He holds a Diploma in Arbitration (2012) and became Accredited as a Mediator by the Mediation Training Institute in 2015. He is also a renowned consultant on ADR Law and Practice and has authored reports whose recommendations had far reaching impact on the sector. As a professional who strives to attain excellence in the legal and ADR arenas, Dr. Muigua has gone out of his way to put ADR in the frontline as one of the leading modes of dispute resolution in Kenya, Africa and at global stage. Dr. Muigua is a holder of a Ph. D in law from the University of Nairobi and has widespread training and experience in both international and national commercial arbitration and mediation. Previously, he served as the chairperson, Department of Private Law of the University of Nairobi School of Law 2020-2021.

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Overcoming Hindrances to International Commercial Arbitration in Kenya

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By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Sustainable Development Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), The African Arbitrator of the Year 2022, Kenya’s ADR Practitioner of the Year 2021, CIArb (Kenya) Lifetime Achievement Award 2021 and ADR Publisher of the Year 2021*

In the face of globalisation, it is important that international trade and investment take place with minimal interference by territorial barriers such as unnecessary domestic courts’ intervention. It has been asserted that the settlement of disputes between parties to an international transaction, arbitration has clear advantages over litigation in national courts. The foreign court can be an alien environment for a businessman because of his unfamiliarity with the procedure which may be followed, the laws to be applied, and even the mentality of the foreign judges.

In contrast, with international commercial arbitration parties coming from different legal systems can provide for a procedure which is mutually acceptable. They can anticipate which law shall be applied: a particular law or even a lex mercatoria of a trade. They can also appoint a person of their choice having expert knowledge in the field. Thus, it is argued that these and other advantages are only potential until the necessary legal framework can be internationally secured, at least providing that the commitment to arbitrate is enforceable and that the arbitral decision can be executed in many countries, precluding the possibility that a national court review the merits of the decision.

There is a need to employ mechanisms that will help nurture and demonstrate Kenya to the outside world as a place with international commercial arbitrators with sufficient knowledge and expertise to be appointed to arbitrate international arbitrators. There is also the need to put in place adequate legal regimes and infrastructure for the efficient and effective organization and conduct of international commercial arbitration in Africa. This ranges from legislating comprehensive law on international commercial arbitration as well as setting up world class arbitration centres in Kenya to complement the Nairobi Centre for International Arbitration (NCIA).

There is also the Centre for Alternative Dispute Resolution (CADR) which is an initiative by the Chartered Institute of Arbitrators, Kenya and was incorporated in May, 2013. Its objective is to establish and maintain a regional Dispute Resolution Centre in the country. The CADR is a positive step towards nurturing international commercial arbitration in Kenya. This will afford the local international commercial arbitrators the fora to showcase their skills and expertise in international commercial arbitration and will also attract international clients from outside Africa. It has been noted that there should be basic minimum standards for international commercial arbitration centres or institutions. These include: modern arbitration rules; modern and efficient administrative and technological facilities; Security and safety of documents; Expertise within its staff; and some serious degree of permanence. There is a need to set up more regional centres for training of international commercial arbitrators in Africa and Kenya.

The Kenyan Chapter of Chartered Institute of Arbitrators trains arbitrators across Africa and has trained arbitrators in countries like Nigeria, Zambia, Uganda and even Malawi. Kenya can indeed play a pivotal role in nurturing international commercial arbitration, not only in Kenya but also across the African continent. There is also need for the existing institutions to seek collaboration with more international commercial arbitration institutions since this will work as an effective marketing tool for the exiting institutions. For instance, the Kenyan Chartered Institute of Arbitrators Branch maintains a close relationship with the International Law Institute (ILI) Kampala and the Centre for Africa Peace and Conflict Resolution (CAPCR) of California State University to conduct Courses in Mediation and other forms of ADR both locally and internationally.

There is need for all African centres and institutions to do the same to promote international commercial arbitration in Africa. The Kenyan law on arbitration appreciates the need to limit court intervention in arbitration to a basic minimum. It has been argued that the relationship between the courts and the arbitral process can be made much closer, both practically and psychologically. The psychological link can be strengthened by encouraging all or at least a good number of the commercial judges and advocates to take up training in arbitration and consequently ensuring that they benefit from having prior experience of arbitration either as representative advocates or actual arbitrators. This will subsequently boost the confidence of foreigners in the African Arbitration institutions as well as the role of courts. Effective and reliable application of international commercial arbitration in Kenya has the capacity to encourage investors to carry on business with confidence knowing their disputes will be settled expeditiously.

In essence, there is need to develop a clear framework in Kenya within which international commercial arbitration can be further nurtured. There are arbitral institutions already in place in Kenya as highlighted in this paper. The presence of such institutions in the country points to an acceptance of alternative dispute resolution modes as well as the need to nurture the practice of international commercial arbitration other than exporting commercial disputes to foreign countries for settlement. With the right frameworks in place, Kenya indeed has the capacity to conduct successful international commercial arbitration. Nurturing international commercial arbitration in Kenya is a necessity whose time has come.

*This article is an extract from published article Nurturing International Commercial Arbitration in Kenya,” by Dr. Kariuki Muigua, PhD, the African Arbitrator of the Year 2022, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), CIArb (Kenya) ADR Lifetime Achievement Award 2021 and ADR Publisher of the Year 2021. Dr. Kariuki Muigua is a Foremost Dispute Resolution Expert in Africa ranked among Top 6 Arbitrators in Kenya by Chambers and Partners, Leading 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 2022 and is ranked among the Top 5 Arbitrators in Kenya in 2022 by The Lawyer Africa. 

References

Muigua, K., “Nurturing International Commercial Arbitration in Kenya,” Available at: http://kmco.co.ke/wp-content/uploads/2021/10/Nurturing-International-Commercial-Arbitration-in-Kenya.pdf (accessed 15 July 2022).

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