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A Human Rights Approach to Water Services Provision



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*

It has been argued that the human right to water implies that water supply must be accessible within, or in the immediate vicinity of, each household, educational institution, workplace and public place. The right to water is now seen as an implicit component of the right to an adequate standard of living and the right to health.61 Indeed, in the Kenya case of Isaac Kipyego Cherop v State Ministry of Water & 142 others [2017] eKLR, the Court went further and affirmed that the right to clean water is intertwined with the right to clean and healthy environment. It has rightly been pointed out that even though the right to water and sanitation is now anchored in international human rights law, there are still serious lags in implementation at the regional and national level.

States, policymakers, international development partners and civil society groups working in the water and sanitation sector have often proved slow to act when it comes to making the right to drinking water and sanitation a reality. While commercialization and privatization of water sector may have its own benefits as far as efficiency is concerned, there is a need for the government to continue implementing pro-poor strategies aimed at ensuring that the poor and marginalized groups in society also have access to clean and safe water for use. This would be treated as part of human rights-based approach to water and sanitation for all. This is the only way that the progressive realization of socio-economic rights in Kenya would be realized for all.

In Mitubell Welfare Society vs. The Attorney General & 2 Others Petition No. 164 of 2011, Mumbi Ngugi, J held that:

“The argument that socio-economic rights cannot be claimed at this point two years after the promulgation of the Constitution ignores the fact that no provisions of the Constitution is intended to wait until the state feels it is ready to meet its constitutional obligations. Article 21 and 43 require that there should be “progressive realization” of socioeconomic rights, implying that the state must be seen to be taking steps, and I must add be seen to take steps towards realization of these rights………Granted also that these rights are progressive in nature, but there is a constitutional obligation on the state, when confronted with a matter such as this, to go beyond the standard objection….Its obligation requires that it assists the court by showing if, and how, it is addressing or intends to address the rights of citizens to the attainment of the socio-economic rights, and what policies, if any it has put in place to ensure that the rights are realized progressively and how the Petitioners in this case fit into its policies and plans.”

The progressive realization of the right to clean water by the State was also affirmed in the case of Isaac Kipyego Cherop v State Ministry of Water & 142 others [2017] eKLR where the Court stated as follows:

“I do find that though the Petitioner has right to clean and safe water in adequate quantities which the State is to endeavor to render progressively. I do agree with the 2nd respondent that the realization of the right to clean and safe water in adequate quantities require huge financial commitments and therefore, the same can be achieved progressively. ………………. I do find that the right to clean and safe water in adequate quantities under Article 43 of the Constitution is subject to progressive realization. Rights under Article 43 of the Constitution can only be realized progressively. The State cannot realize this right for every Kenyan in one investment. The right to clean and safe water in adequate quantities is not a final product for direct dispensation but is aspirational.”

The Government is thus expected to take tangible steps towards ensuring that these rights are fulfilled for all persons. The Constitution also gives every person to pursue their human rights before courts of law where the same are violated or are at the risk of being violated. To this end, courts have also held that the Environment and land court has the jurisdiction to hear and determine a dispute under Article 43 (d) thus touching on the right to clean and safe water in adequate quantities, as was decided in Isaac Kipyego Cherop v State Ministry of Water & 142 others [2017] eKLR. It is not until the Government fully treats the provision of water services to its people as a critical human right that they will spire to ensure that all its citizens have access to clean, safe and adequate amounts of water. In cases of extreme poverty, the Government may provide water for basic needs for free while ensuring that for the bigger populace, the water is affordable by reigning in on unscrupulous water dealers while also ensuring that service provision complies with the human rights standards.

Seeing that water is now considered to be a human right issue, and as the global population grows, there is an increasing need to balance all of the competing commercial demands on water resources so that communities have enough for their needs. The State obligation to fulfil its human rights obligations includes the obligations to facilitate and promote. The obligation to facilitate requires the State to take specific measures within its available resources to assist individuals and communities to enjoy the right. The obligation to promote requests the State to take targeted steps. To this end, the State should adopt a national water strategy and a plan of action, as well as appropriate financing and pricing policies.

While it is acknowledged that the fulfilment of the right to water as a socioeconomic right is progressive, the Government should continually work with non-state actors, private investors, NGOs and other stakeholders to ensure that the same is fulfilled for Kenyan citizens and especially the most vulnerable and marginalized groups. The Government should continually work towards coming up with ways of ensuring that water is affordable for all. However, considering that water is a scarce commodity, there is also need for public education and creating awareness on the need to use water efficiently in order to minimize wastage of the same. Water is an integral part of the socioeconomic rights and the Government cannot ably fulfill its obligations on Article 43 of the Constitution of Kenya without working towards fulfilling its obligations on provision of water for all citizens. Fulfilling the right to water as a prerequisite for realization of other socio-economic rights for the people of Kenya is indeed necessary and possible.

*This article is an extract from the Article: “Fulfilling the Right to Water as a Socio-economic,” (2022) Journal of Conflict Management and Sustainable Development Volume 8(2), p. 1  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.


Levin, Thomas, M. Nierenköther, and N. Odenwälder. “The human right to water and sanitation: Translating theory into practice.” Eschenborn, Germany: Deutsche Gesellschaft für Technische Zusammenarbeit (GTZ) GmbH (2009).

World Bank, ‘Providing Sustainable Sanitation and Water Services to Low-Income Communities in Nairobi,’ Available at: (accessed 1 November 2020).

Sinharoy, S., et al, ‘Review of Drivers and Barriers of Water and Sanitation Policies for Urban Informal Settlements in Low-Income and Middle-Income Countries’ (2019) 60 Utilities Policy 100957, available at: (accessed on 1 Nov. 2020).

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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News & Analysis

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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