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Realizing Socio-Economic Rights in Kenya: Are We Yet There?



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, ADR Publisher of the Year 2021 and CIArb (Kenya) Lifetime Achievement Award 2021*

While successive governments in Kenya have put in place varying efforts geared towards achieving ‘development’ in the country, results have often been skewed with most of these efforts concentrating mainly on infrastructural development and inadequate resources being directed at the social economic empowerment of the citizenry. The right of every person to self-determination as envisaged under the international bill of rights allows them to freely determine their political status and freely pursue their economic, social and cultural development. The concern is not with the political aspect of this right but the pursuit of economic and social development. However, it is acknowledged that achieving this kind of development for the citizenry is not completely devoid of political influence as, it has been argued, social and political structures may shape government policy toward the welfare state.

The founding father of the nation, President Jomo Kenyatta in his agenda listed following as the greatest enemies of the country and which required to be addressed urgently: Ugonjwa (disease), Umaskini (poverty), Ufisadi (corruption) and Ujinga (ignorance and illiteracy). While there may be evidence of economic development in the country, it is arguable that such economic growth has only benefited small numbers of people, with great disparities of wealth leading most Kenyans continue to suffer under very low living standards. The move by the Government of Kenya to pursue its ‘Big Four Agenda’ which targets: enhancing manufacturing; food security and nutrition; universal health care; and affordable housing, is a step in the right direction. These pillars could be deemed to be part of the government’s efforts towards fulfilling its constitutional obligations on the ‘progressive realisation of social economic rights.’

The question of how to actualize Socio-Economic Rights under the Constitution of Kenya for Sustainable Development calls for suggestions ways that policy makers and other stakeholders can ensure inclusive, meaningful and impactful socio-economic development as an ingredient for realisation of sustainable development agenda in the country. It is however worth mentioning that this cannot be achieved through unilateral efforts and must be done through the concerted efforts of all stakeholders. For instance, addressing unemployment and low incomes for poverty reduction and empowerment under the United Nations 2030 Agenda for Sustainable Development entails prioritizing the set of 17 Sustainable Development Goals (SDGs) to end poverty, fight inequality and injustice, and tackle climate change by the year 2030.

The 2030 Agenda for Sustainable Development also seeks to strengthen universal peace in larger freedom and was formulated in recognition that eradicating poverty in all its forms and dimensions, including extreme poverty, is the greatest global challenge and an indispensable requirement for sustainable development. SDG Goal 8 seeks to promote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all. One of the ways that is to be achieved will be promotion of development-oriented policies that support productive activities, decent job creation, entrepreneurship, creativity and innovation, and encourage the formalization and growth of micro-, small- and medium-sized enterprises, including through access to financial services. Such policies are a good foundation for the empowerment of the poor in the Kenyan society.

Empowering the poor sections of the population in the society is the first step towards building a sustainable economic growth and development. A society that seeks to empower its men and women both socially and economically can have reasonable expectations as far as poverty reduction or even elimination is concerned. It has been argued that any given growth scenario can generate different poverty outcomes for a given rate of growth, the extent of poverty reduction depends on how the distribution of income changes with changes in growth, and on initial inequalities in income, assets and access to opportunities to allow the poor to share in growth. Equi-proportional growth leaves income distribution intact, whereas by improving the position of some at the lower scale of distribution, it reduces poverty. Pro-poor growth and development policies, however, will by definition improve the status of the poor and affect income distribution. This supports the argument that unless any perceived or real economic growth reported in a country is as a result of economic policies, plans and programmes that take into account the interests of the poor, then it cannot rightly be used as a measure of how well the citizenry is doing. Investing in pro-poor development projects is one of the best ways that poverty can be addressed in the country, instead of short-term projects.

Economic empowerment of the various groups in Kenya can go a long way in improving the lives of families and addressing the ever rising levels of poverty in the country. Empowerment is defined as a process through which individuals or organised groups increase their power and autonomy to achieve certain outcomes they need and desire. Empowerment focuses on supporting disadvantaged people to gain power and exert greater influence over those who control access to key resources.56 Social empowerment on the other hand may be defined as the process of developing a sense of autonomy and self-confidence, and acting individually and collectively to change social relationships and the institutions and discourses that exclude poor people and keep them in poverty.

Poor people’s empowerment, and their ability to hold others to account, is strongly influenced by their individual assets (such as land, housing, livestock, savings) and capabilities of all types: human (such as good health and education), social (such as social belonging, a sense of identity, leadership relations) and psychological (self-esteem, self-confidence, the ability to imagine and aspire to a better future). Also important are people’s collective assets and capabilities, such as voice, organisation, representation and identity.58 Reduction of crime rates and other social ills can arguably be achieved through addressing social inequalities in the society. Some scholars have argued that there exists a link between unemployment and crime, incarceration and family breakup. Empowering the different groups in society can help them take charge of their economic and social lives thus effectively participating economic development and realisation of sustainable development agenda.

It has been observed that empowerment of those living in poverty is both a critical driver and an important measure of poverty reduction. This is because the decisions and actions of poor people themselves can bring about sustainable improvements in their lives and livelihoods. The need for empowerment of the poor is justified on the fact that sustainable poverty reduction needs poor people to be both the agents and beneficiaries of economic growth to directly participate in, contribute to and benefit from growth processes. Strengthening poor people’s organizations, providing them with more control over assets and promoting their influence in economic governance will improve the terms on which they engage in markets. Thus, economic empowerment combined with political and social empowerment will make growth much more effective in reducing poverty.

*This article is an extract from the Article: Actualising Socio-Economic Rights for Sustainable Development in Kenya, (2019) Journal of Conflict Management and Sustainable Development Volume 3(2), p. 33.  by Dr. Kariuki Muigua, PhD, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Publisher of the Year 2021 and ADR Lifetime Achievement Award 2021 (CIArb Kenya). Dr. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. 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 among the top 5 leading lawyers and dispute resolution experts in Kenya by the Chambers Global Guide 2022.


Muigua, K., “Actualising Socio-Economic Rights for Sustainable Development in Kenya,” (2019) Journal of Conflict Management and Sustainable Development Volume 3(2), p. 33.

Mbatau wa Ngai, ‘This is how to tackle the poverty gap,’ Standard Digital, Posted on: 29th Jan 2019 10:07:19 GMT +0300. Available at [Accessed on 29/01/2019].

Mehlum, H., Miguel, E. and Torvik, R., “Poverty and crime in 19th century Germany,” Journal of Urban Economics 59, no. 3 (2006): 370-388.

Nelson, R.R. and Phelps, E.S., “Investment in humans, technological diffusion, and economic growth,” The American economic review 56, no. 1/2 (1966): 69-75.

OECD, Poverty Reduction and Pro-Poor Growth: The Role of Empowerment, OECD Publishing, Paris, 2012. Available at [Accessed on 29/01/2019].

Ogbimi, F.E., “Promoting sustainable economic growth and industrialisation: solution to mass unemployment and poverty”, African journal of traditional, complementary, and alternative medicines: AJTCAM, vol. 4, No. 4, 2007, pp. 541-52.

Reid, C., “Addressing the challenges of unemployment in low-income communities,” Community Investments Spr (2009): 3-7 at p. 4. Available at [Accessed on 29/01/2019].

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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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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Former KCB Company Secretary Sues Over Unlawful Dismissal




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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