News & Analysis
Brief Review of Dr. Kariuki Muigua’s Eight (8) Books in Eight (8) Years
Dr. Kariuki Muigua, PhD has distinguished himself as the leading environmental law scholar and expert across Africa specializing in Environmental Justice, Sustainable Development and Natural Resources Conflict Management. He is highly esteemed around the world as a scholar, academic, author, dispute resolution expert, mentor and consultant. Dr. Muigua is also recognized as one of Kenya’s leading lawyers and ADR experts and is ranked by the Chambers Global Guide 2021 among the top 10 Arbitrators in Kenya. He is an Advocate of over 30 years standing and the Managing Partner of Kariuki Muigua & Company Advocates. In 2021, he won the CIArb(Kenya) ADR Lifetime Achievement Award, Law Society of Kenya (Nairobi) ADR Practitioner of the Year and the ADR Publisher of the Award (CIArb-Kenya).
Dr. Muigua is an avid researcher in Environmental Law, Alternative Dispute resolution and Sustainable Development. He has published more than hundred articles published in leading peer-reviewed journals cited widely in research and scholarship. He is also the Founder and Editor in Chief of the Journal of Conflict Management and Sustainable Development, the leading Environmental Law Journal in Africa. In addition, Dr. Muigua is the Editor-in-Chief of the Alternative Dispute Resolution, the Official Journal of the Chartered Institute of Arbitrators (Kenya Branch), voted the leading Arbitration Publication in Africa in 2020 in the Africa Arbitration Awards (AAA).
From 2013 to date (in 8 years), Dr. Kariuki Muigua has authored the following eight (8) books on Environmental Law, Sustainable Development, Alternative Dispute Resolution and Conflict Management. His latest book, Fostering Environmental Democracy and Biodiversity Conservation, was published on September 2021. The book covers the thematic issues of Environmental Democracy, Biodiversity Conservation and Human Rights that are mostly dependent on the health of the environment for their fulfillment, Social Justice, and procedural and substantive rights in matters of biodiversity conservation, among others. Dr. Muigua also discusses select natural resources that are most relevant to biodiversity conservation and are key in achieving certain human rights including water resources, land and agriculture, forest resources, among others. He threads them to the theme of fostering environmental democracy and biological diversity and makes recommendations on how to ensure human rights of communities and especially their right to public participation in development projects is guaranteed to avoid conflicts and promote environmental conservation and achieve of Sustainable Development Goals (SDGs).
In the book, Achieving Sustainable Development, Peace and Environmental Security, also published in 2021, Dr. Kariuki Muigua, PhD makes a very persuasive and well-argued case why Countries all over the world should adopt progressive laws and policies in fostering realization of sustainable development goals and calls for the management of the environment in an effective manner that enhances sustainable development. He presents a blueprint for addressing the challenges and concerns affecting Kenya, the African Continent and the world at large in fostering achievement of sustainable development. The book is largely informed by the emerging issues since 2015 when the United Nations Agenda of Sustainable Development Goals (SDGs) was adopted by states around the world. It highlights the challenges faced in implementing the 2030 Agenda on SDGs and offers numerous recommendations on how to address them in thirteen chapters. The book links various themes with environmental conservation and management to make the case for sustainable development through an integrated approach and realistic progressive laws.
Securing Our Destiny through Effective Management of the Environment (published on 2020) presents a much needed answer to the environment concerns in Kenya by analyzing how effective management of Natural Resources and the Environment in Kenya can be achieved. The book is divided into twelve chapters which advocate for effective management of environmental and natural resources in Kenya. The main running themes in the book include Sustainable Development; Public Participation and inclusivity; Environmental Democracy; Environmental Justice; Indigenous Ecological Knowledge; Social Justice; Environmental Rights; Role of Law in Environmental Management and Governance; Peacebuilding and Entrenching Environmental Rule of Law in Kenya, among others. The book links these themes with environmental conservation and management and argues a case for effective management of the environment through an integrated approach.
Settling Disputes through Arbitration in Kenya, now in its 3rd Edition published in 2017 and 4th Edition coming this year (available for free download here) is the leading textbook on Arbitration in Kenya (and East Africa). The book takes readers through the process of arbitration in a simplified, yet comprehensive manner, analyzing the legislative and policy framework and case law on arbitration in Kenya. As Dr. Kariuki Muigua wrote in his Author’s Note: “I recommend this book to ADR students, teachers and tutors of ADR, ADR practitioners and to the general public interested in acquiring knowledge on the various ADR mechanisms in Kenya and their role in resolving or settling disputes occurring in everyday life…. In addition, this book has a place as a core textbook for the popular Entry Course in Arbitration, offered by Chartered Institute of Arbitrators-Kenya around East Africa and for postgraduate students of international commercial arbitration, to whom it will offer basic foundational knowledge.”
Resolving Conflicts through Mediation in Kenya, now in its 2nd Edition published in 2017, critically explores and articulates the subject of mediation in the Kenyan context. The book illustrates how proper application of mediation as a conflict resolution mechanism can assist Kenyans realize the ideals of access to justice as envisaged in the Constitution of Kenya. The second edition includes aspects such as the implementation of the Court Annexed Mediation Project by the Kenyan Judiciary and the enactment of various statutes encouraging the use of mediation and other ADR mechanisms. The edition contains materials on how best to conceive and implement a mediation program that not only responds to the needs of the people but also achieves the desired goal of enhancing access to justice for all.
The central themes in Nurturing Our Environment for Sustainable Development (2016) revolve around environmental resources management with the aim of achieving sustainable development. It is based on the idea that environment and its natural resources are a heritage that should be managed, conserved and protected not only for the sake of the current generation, but also for future generations. The book argues that due to its critical role in the human, social and economic development of the country, the environment is one of the most important elements necessary for the existence of the human life. Environment affects all the life on earth in various ways, be it directly or indirectly. The environment and the resources therein must be carefully nurtured to make sure that their health is not sacrificed at the altar of national development. Thus, the book explores the various principles that inform the sustainable development approach to environmental protection and conservation.
In Alternative Dispute Resolution and Access to Justice in Kenya (2015), Dr. Kariuki Muigua attempts to offer a better understanding of the relationship between Alternative Dispute Resolution Mechanism (ADR) and Access to Justice, and all its relevant elements, in Kenya. It explores the various aspects and nuances of conflict management and ADR, clarifying all the relevant concepts and the basis of the application of ADR in access to justice, as a means to an end. The book affirms the need to use of ADR and Traditional Dispute Resolution (TDR) as a means facilitating realization of the right of access to justice for the Kenyan people. As a recent review of the book concluded: “This book offers a simple yet deep read on the subject of ADR and Access to Justice in Kenya, especially in light of the current Constitution of Kenya. It is a worthy piece of literary work for students, lecturers, practitioners, policymakers and researchers in the areas of ADR and access to justice in Kenya. Getting yourself a copy is definitely worth it.”
In Natural Resources and Environmental Justice in Kenya (2015), Dr. Muigua and his co-authors Didi Wamukoya and Dr. Francis Kariuki build on the thesis that Natural Resources should not be a source of woe and misery, but should fully benefit humankind and for those who cherish the dream of Environmental Justice for All. The book examines Kenya’s policy, legal and institutional framework relating to the management of natural resources under the Constitution of Kenya 2010. Principles of governance including Environmental Justice, Environmental Democracy, sustainable development and Climate Change are part of the running themes in the text. The authors reiterate the need for public participation, transparency and accountability in the management of the revenue or benefits accruing from natural resources exploitation to foster Environmental Justice. The book seeks to inspire sound management and utilization of natural resources and the push towards Environmental Justice for All.
News & Analysis
Former KCB Company Secretary Sues Over Unlawful Dismissal
Former KCB Group Company Secretary Joseph Kamau Kania has sued the lender seeking reinstatement or be compensated for illegal sacking almost three years ago. Lawyer Kania was the KCB Group company secretary until restructuring of the lender in 2021 that saw some senior executives dropped.
Through the firm of Senior Counsel Wilfred Nderitu, Kamau wants the court to order KCB Group to unconditionally reinstate him to employment without altering any of the contractual terms until his retirement in December 2025.
In his court documents filed before Employment and Labour Relations Court, the career law banker seeks the court to declare the reorganization of the company structure a nullity and amounted to a violation of his fundamental right to fair labour practices as guaranteed in Article 41(1) of the Constitution. He further wants the court to declare that the position of Group Company Secretary did not at any time cease to exist within the KCB Group structure.
He further urged the Employment Court to declare that the recruitment and appointment of Bonnie Okumu, his former assistant, as the Group Company Secretary, in relation to the contemporaneous termination of his employment, was unprocedural, insufficient and inappropriate to infer a lawful termination of his employment.
“A declaration that the factual and legal circumstances of the Petitioner’s termination of employment were insufficient and inappropriate to infer a redundancy against him, and that any redundancy declared by the KCB Group in relation to him was therefore null, void and of no legal effect and amounted to a violation of his fundamental right to fair labour practices as guaranteed in Article 41(1) of the Constitution,” seeks lawyer Kamau.
Kamau says he was subjected to discriminatory practices by the KCB Bank Group in violation of his fundamental right to equality and freedom from discrimination as guaranteed in Article 27 of the Constitution and the termination of his employment was unfair, unjustified, illegal, null and void.
Lawyer Kamau further seeks the court to declare that the Non-Compete Clause in the 2016 Contract is unenforceable by the KCB Group as against him and is voidable by him as against the Bank ab initio, byreason of the termination of the Petitioner’s employment having been a violation of Articles 41(1) and 47(1) and (2) of the Constitution, and of the Employment Act.
He also wants the Employment Court to find that finding that KCB’s group legal representation by Messrs of Mohammed Muigai LLP Advocates law firm in respect of his claim for unlawful termination of employment resulted in a clear conflict of interest by reason of the fact that a Founding and Senior Partner at the said firm lawyer Mohammed Nyaoga is also the Chairman of the CBK’s Board of Directors.
“A Declaration that the circumstances of KCB’s legal representation by Messrs. Mohammed Muigai LLP Advocates resulted in a violation of the Petitioner’s fundamental right to have the employment dispute decided independently and impartially, as guaranteed in Article 50(1) of the Constitution,” seeks lawyer Kamau.
Kamau is seeking damages against both KCB Group and Central Bank of Kenya jointly and severally for the violation of his constitutional and fundamental right to fair labour practices.
He wants further wants court to declare that CBK is liable to petitioner on account of its breach of statutory duty to effectively regulate KCB Group to ensure that KCB complied with the Central Bank of Kenya Prudential Guidelines and all other Laws, Rules, Codes and Standards, and that, as an issuer of securities, it complied with capital markets legislation.
Kamau through his lawyer Nderitu told the court that he was involved in Shareholder engagement in introducing the Group aide-mémoire that significantly improved the management of the Annual General Meetings, including obtaining approval without voting through the Memorandum and Articles of Association of Kenya Commercial Bank Limited among others.
He said that during his employment at KCB Bank Kenya and with the KCB Group, he initially worked well with former KCB CEO Joseph Oigara until 2016 when the CEO allegedly started sidelining him by removing the legal function from his reporting line.
He further claims he was transferred from the Group’s offices at Kencom House to its offices Upper Hill under the guise that the Petitioner was merely to support the KCB Group Board.
He adds that at that point his roles were given to Okumu for reasons that were not related to work demands. He stated that Oigara at one time proposed that he should leave his role in the KCB Group and go and serve as the Company Secretary of the National Bank of Kenya Limited, a subsidiary of the Group, a suggestion which he disagreed with to Oigara’s utter annoyance.
Kamau stated that his work was thenceforth unfairly discredited, leading to his being taken through a disciplinary process whose intended outcome failed miserably, and the Petitioner was vindicated.
“More specifically, the Petitioner contends that the purported creation of a new organizational structure towards the end of 2020 was in fact Oigara’s orchestration targeted to remove certain individuals by requiring them to undergo interviews in the pretext that new roles were created, and amounted to a further violation of the Petitioner’s fundamental right to fair labour practices under Article 41(1) of the Constitution,” said in his court documents.
He further adds that this sham reorganization demonstrates how the role of the KCB Group Company Secretary purportedly ceased to be and was then very briefly replaced with a new role of the KCB Group General Counsel. The role of KCB Group Company Secretary then ‘resurfaced’ immediately thereafter, in total violation of legal and regulatory requirements.
News & Analysis
Court of Appeal Upholds Eviction of Radcliffes from Karen Land
The Court of Appeal has stayed the decision of the Environment and Land Court purporting to reinstate Adrian Radcliffe into possession of the 5.7 Acre Karen Land by Kena Properties Ltd after eviction by the lawful owners in February 2022. Adrian Radcliffe who was evicted by Kena Properties Ltd, the innocent purchaser of the Land for value.
Before his eviction, Mr. Radcliffe had been living on the land as a squatter expatriate for 33 years without paying any rent. Since he moved into the property as a tenant, he only paid deposit for the land in August 1989 despite corresponding severally with the owner of the land. His attempt to acquire the land by adverse possession claim filed in 2005 was dismissed by Court in 2011 on the basis that he has engaged with the owner of the land July 1997 and agreed to buy the land which he failed to do. The High Court [Justice Kalpana Rawal as she then was] concluded that:
“His [Mr. Adrian Radcliffe] averments that he did not have any idea of the whereabouts of the Defendant and that he could possibly be not alive, were not only very sad but mala fide in view of the correspondence on record addressed by him to the Defendant’s wife. I would thus find that the averments made by him to the contrary are untrue looking to the facts of this case.”
On 10th March 2022, Mr. Adrian Radcliffe and Family purported to obtain court orders for reinstatement into the land. However, the Court of Appeal issued an interim stay of execution of the said orders. The Court of Appeal has now granted the application of Kena Properties Ltd and stayed the execution of the Environment and Land Court Order pending the hearing and determination of the Appeal.
The Court also stayed the proceedings at the Environment and Land Court on the matter during the pendency of the Appeal. In effect, the eviction orders issued by the Chief Magistrate Court for eviction of Mr. Adrian Radcliffe in favour of Kena Properties as the purchaser of the property for value were upheld and the company now enjoys unfettered ownership and possession of the suit property until the conclusion of the Appeal.
The Court of Appeal in granting the orders sought by Kena Properties Ltd concurred with Kena Properties Ltd that as the property owner it had an arguable appeal with a high probability of success which would be rendered nugatory if Adrian Radcliffe a trespasser was to resume his unlawful possession of the suit property, erect structures thereon, recklessly use or abuse the said suit property as he deems fit. In any case, that is bound to fundamentally alter the state of the suit property and render it unusable by Kena Properties Ltd as the property owner.
At the same time, the Appellate Court rubbished the argument of Adrian Radcliffe in opposition to the application for stay that he has been in occupation of the suit property for more than 30 years and that he and his family were unlawfully evicted from the suit property on 4th February, 2022. The Court also rejected Radcliffe’s claim that Kena Properties Ltd has no valid title to the suit property and held that as the purchaser, the company was entitled to enjoy ownership and possession of their property during the pendency of the appeal.
The Court dismissed claims of Mr. Adrian Radcliffe that Kena Properties Ltd as the property owner acquired title to the suit property illegally and unprocedurally finding to the contrary. Further, it rejected Adrian Radcliffe’s claim that Kena Properties as the purchaser cannot evict a legal occupier of a property putting paid to the claim that he was a legal occupier at the time of eviction.
As a matter of fact, Mr. Adrian Radcliffe cannot claim to be the legal occupier of the property having attempted to acquire it by adverse possession before the High Court thwarted his fraudulent scheme on 28th February 2011. Mr. Radcliffe did not appeal the 2011 High Court decision meaning it is still the law that he is not the owner of the land nor the legal occupier of the land having attempted to adversely acquire against the interests of the lawful owner who sold it to Kena Properties.
Mr. Adrian Radcliffe is a well-to-do Water, Sanitation and Hygiene (WaSH) UNICEF consultant and former UN employee (who has been earning hefty House Allowance). Many have wondered why he has been defaulting in paying rent for 33 years on the prime plot of land in Karen while living large and taking his kids to most expensive schools in Kenya. No question, a local Kenyan could never have gotten away with such selfish impunity.
News & Analysis
Review: Journal of Conflict Management and Sustainable Development, Vol. 9, No. 1
The Journal of Conflict Management and Sustainable Development, Volume 9, Issue No. 1, which is edited by and published by Dr. Kariuki Muigua, PhD is out and stays true to the reputation of the journal in providing a platform for scholarly debate on thematic areas in the fields of Conflict Management and Sustainable Development. The current issue published in September 2022 covers diverse topics including Resolving Oil and Gas Disputes in Africa; National Environment Tribunal, Sustainable Development and Access to Justice in Kenya; Protection of Cultural Heritage During War; The Role of Water in the attainment of Sustainable Development in Kenya; Property Rights in Human Biological Materials in Kenya; Nurturing our Wetlands for Biodiversity Conservation; Investor-State Dispute Resolution in a Fast-Paced World; Status of Participation of Women in Mediation; Business of Climate Change and Critical Analysis of World Trade Organization’s Most-Favored Nation (MFN) Treatment.
Dr. Wilfred A. Mutubwa and Eunice Njeri Ng’ang’a in “Resolving Oil and Gas Disputes in an Integrating Africa: An Appraisal of the Role of Regional Arbitration Centres” explore the nature of disputes in the realm of oil and gas in Africa taking a look into the recent continental and sub-regional developments in a bid to establish regional integration. Additionally, it tests the limits of intra-African trade and dispute resolution and the imperatives for the African regional courts and arbitration centres. In “National Environment Tribunal, Sustainable Development and Access to Justice in Kenya,” Dr. Kariuki Muigua discusses the role played by the National Environment Tribunal (NET) in promoting access to justice and enhancing the principles of sustainable development in Kenya. The paper also highlights challenges facing the tribunal and proposes recommendations towards enhancing the effectiveness of the tribunal.
Dr. Kenneth Wyne Mutuma in “Protecting Cultural Heritage in Times of War: A Case for History,” argues that cultural heritage is at the heart of human existence and its preservation even in times of war is sacrosanct. It concludes that it is thus critical for states to take positive and tangible steps to ensure environmental conservation and protection during war within the ambit of the existing international legal framework. In “The Role of Water in the attainment of Sustainable Development in Kenya,” Jack Shivugu critically evaluates the role of water in the attainment of sustainable development in Kenya and argues water plays a critical role in the attainment of the sustainable development goals both in Kenya and at the global stage. The paper interrogates some of the water and Sustainable Development concerns in Kenya including water pollution, water scarcity and climate change and suggests practical ways to enhance the role of water in the Sustainable Development agenda.
Dr. Paul Ogendi in “Collective Property Rights in Human Biological Materials in Kenya,” reflects on property rights in relation to human biological materials obtained from research participants participating in genomic research. He argues that property rights are crucial in genomic research because they can help avoid exploitation or abuse of such precious material by researchers. In “Nurturing our Wetlands for Biodiversity Conservation,” Dr. Kariuki Muigua notes that Wetlands have a vital role in not just delivering ecological services to meet human needs, but also in biodiversity conservation. Wetlands are vital habitat sites for many species and a source of water, both of which contribute to biodiversity protection. The paper examines the role of wetlands in biodiversity conservation and how these wetland resources might be managed to improve biodiversity conservation.
Oseko Louis D. Obure in “Investor-State Dispute Resolution in a Fast-Paced World,” preponderance of disputes between States or States and Investors created need for a robust, effective, and efficient mechanisms not only for the resolution of these disputes but also their prevention. He notes that developing states lead in being parties to Investor-State Disputes (ISD) particularly as respondents. He proceeds to conceptualize and problematize investor-state disputes resolution in a fast-paced world. Lilian N.S. Kong’ani and Dr. Kariuki Muigua in “Status of Participation of Women in Mediation: A case Study of Development Project Conflict in Olkaria IV, Kenya” review the status of participation of women in mediation to resolve conflicts between KenGen and the community. The paper demonstrates a need for further democratization of the mediation processes to cater for more participation of women to enhance the mediation results and offer more sustainable resolutions.
Felix Otieno Odhiambo and Melinda Lorenda Mueni in “The Business of Climate Change: An Analysis of Carbon Trading in Kenya analyses the business of carbon trading in the context of Kenya’s legal framework. The article examines the legal framework that underpins climate change into the Kenyan legal system and provides an exposition of the concept of carbon trading and its various forms. Michael Okello, in “Critical Analysis of World Trade Organisation’s Most-Favored Nation (MFN) Treatment: Prospects, Challenges and Emerging Trends in the 21st Century,” highlights the rationale behind MFN treatment and also restates the vision of multilateral trade to achieve equitable and special interventions with respect to trade in goods, services and trade related intellectual property rights in the affected states.
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