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Truth About Case of Adrian Radcliffe vs Kena Properties Ltd

Ignore misleading blog reports. Mr. Adrian Radcliffe has not been reinstated to any land as at 30th March, 2022. The stay of execution of his orders obtained on 10th March 2022 was extended on Thursday 24th March, 2022. The matter is set for mention on Monday 4th April 2022.

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The case of Adrian Radcliffe vs Kena Properties Ltd & Others is a curious one to watch being a tussle between an innocent purchaser for value (Kena Properties Ltd) of 5.7 Acre Plot of Land in Karen and a squatter expatriate (Adrian Radcliffe) who had lived on the land for 33 years without paying rent (except rent deposit paid in August 1989) and whose adverse possession claim was dismissed by Court in 2011.

Contrary to the misleading media and blog reports, a perusal of the Court File confirms that Mr. Adrian Radcliffe and Family have not been reinstated on the land. The stay of execution of their orders obtained on 10th March 2022 was extended on Thursday 24th March, 2022 and the matter is set for mention on Monday 4th April 2022 to confirm if all parties have filed submissions on the stay application.

Why Mr. Adrian Radcliffe, a well-to-do Water, Sanitation and Hygiene (WaSH) UNICEF consultant and former UN employee (who was earning hefty House Allowance), defaulted 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 is a conundrum. No question a local Kenyan could never have gotten away with such selfish impunity.

But Mr. Adrian Radcliffe is not satisfied with not paying rent all his adult life. He also wants to ride on the fact that he had gotten away with living rent-free as a tenant on the prime 5.7 Acre Land for 33 years to become the owner of the land. But the court stopped him on his tracks in February 2011 finding that he was a mere tenant having acknowledged the land owner and his estate agent on 31st July 1997.

Indeed, the fact that Mr. Adrian Radcliffe is not the owner of the land in question and was a mere tenant has been res judicata (settled) since 28th February 2011 when the High Court dismissed his adverse possession claim filed on 20th December 2005. Justice Kalpana Rawal (as she then was) reached the decision after finding that Mr. Adrian Radcliffe had blatantly lied in his pleadings. (see the Judgment).

The High Court 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.”

In other words, Mr. Adrian Radcliffe in his pleadings of 2005 told the court the owner of the land could not possibly be alive. But in 2022, Mr. Adrian Radcliffe pleads that the owner of the land died in 2012. So Mr. Adrian Radcliffe lied to the Court that the owner of the land was dead knowing he was alive to grab his property even after he let him stay on it for over a decade while defaulting in rent payments?

The upshot of the 28th February 2011 High Court Judgment dismissing Mr. Adrian Radcliffe adverse possession claim is that he cannot possibly claim to be owner of the land in 2022 (as 12 years have not lapsed since 2011 when the land was found to belong to the original owner). At the same time, he cannot insist on continuing to stay in the land without paying rent against the wishes of the owners of the land.

Mr. Radcliffe admits that he did not appeal the 2011 High Court decision meaning it is still the law that he is not the owner of the land. In fact, on Thursday 3rd March 2011, Mr. Radcliffe instructed a Senior Lawyer in a Leading Nairobi Law Firm to engage the lawyers of the owner of the land who had already sued him to recover the unpaid rent from 1989 to 2011 and the cost of the adverse possession suit.

The claims of Mr. Adrian Radcliffe on Citizen TV that the property was handed to him by a friend who died and they had engaged the Senior Lawyer to assist in property transfer are blatant lies judging from the information gleaned from his court pleadings . It will be very hard for Mr. Adrian Radcliffe to sustain his case especially when the Court finds the extent of his material non-disclosure and falsehoods.

After the High Court decision, on 24th March 2011, the Advocates of the Owner of the land demanded that Mr. Adrian Radcliffe unequivocally accepts the ownership of the land by their client and lift the caveat over the land to be entitled to right of first refusal to purchase the property. On 31st March 2011, Mr. Adrian Radcliffe instructed the Senior Lawyer to write to them agreeing to their terms.

On the same day, Mr. Adrian Radcliffe also signed the withdrawal of his Caveat on the land and left it with the Senior Lawyer to forward to the Land Owner’s Law Firm. Afterwards, the Advocates of the Owner forwarded Valuation of the property as the basis for discussions regarding the sale of the property to Mr. Radcliffe. On 27th April 2011, the Senior Lawyer wrote to Mr. Radcliffe asking for his instructions.

On 28th April 2011, Mr. Radcliffe responded vide a letter dated same day expressly stating that he was unable to take up the offer of first refusal to purchase within the time frame stipulated by the original owner’s advocates for lack of means to purchase the land. The Senior Lawyer promptly communicated this position to the Advocates of the Original Land Owner vide a letter dated 29th April 2011.

Further, Mr. Adrian Radcliffe instructed the Senior Lawyer to inform the Lawyers of the owner that he wished to resolve all matters between himself and the original owner amicably and was ready to move out of the property to give vacant possession as he was aware that a potential purchaser would require possession. The Senior Lawyer conveyed that position to Owner’s Lawyers by letter dated 5th May 2011.

On 13th May 2011, the Advocates of the Land Owner wrote to the Senior Lawyer on behalf of Mr. Adrian Radcliffe stating that a Notice of Termination of his month to month tenancy had been served on him and had expired at the end of May 2010 and that they now required him to vacate the property without further delay. The land owner’s agents were already arranging for potential buyers to view the property.

It was clear that once a buyer was found, one of the terms of sale would be that the property should be transferred with vacant possession. Mr. Adrian Radcliffe and his wife visited the Senior Lawyer’s office several times to discuss the options available to them and disclosed to him that they had nowhere else to go and they were in a dilemma about what they would do if they were evicted from the property.

This back and forth went on for a year until the Senior Lawyer approached his spouse to assist Mr. & Mrs Radcliffe (who were also their family friends) to spare them and their young family the agony of eviction. No question if the Senior Lawyer and his wife had not assisted Mr. Adrian Radcliffe, he would have been evicted 10 years ago and the lives and schooling of their then young children interrupted and frustrated.

At that time, Kena Properties Ltd, which is owned by the spouse of the Senior Lawyer and her relatives, was looking for a property in the neighborhood for accommodation of staff of their International School. Kena Properties Ltd made a proposal to buy the land in October 2012 on condition that they will not take vacant possession of the land but will keep Mr. Adrian Radcliffe as tenant if he signs tenancy agreement.

Eventually, the Owner accepted the Proposal of Kena Properties  to buy the property for Ksh. 135 Million. On 7th June 2013, the Senior Lawyer informed Mr. Adrian Radcliffe that he had identified a party who was prepared to purchase the property and to allow him and his family to continue in possession of the property at a reasonable rent until they had arranged alternative accommodation.

Mr. Adrian Radcliffe not only agreed that the Senior Lawyer could represent the purchaser but on 12th August 2013 he emailed the Senior Lawyer thanking him “…for agreeing to negotiate a caretaker rental arrangement…” and asked that he keep them informed of developments. It is clear that Mr. Radcliffe is withholding material facts in an attempt to lie about and demonize the gracious Senior Lawyer.

In truth, the Senior Lawyer also secured settlement of the case that had been brought against Mr. Adrian Radcliffe in the Magistrate’s Court with no orders as to costs for helping introduce a purchaser for the property. This was after Mr. Radcliffe confided in the Senior Lawyer that he did not have the means to pay rent despite having lied that he had been depositing these monies into an account at Barclays Bank.

On 30th September 2013, the Senior Lawyer asked the Land Owner’s Lawyers to confirm their proposed arrangement regarding settlement of the suit. The Advocates of the Owner replied vide a letter dated 8th October 2013 confirming that once the transaction for the sale of the property to Kena Properties was completed, the suit in the Magistrates’ Court would be marked as settled with no order as to costs.

A copy of the consent letter dated 5th December 2013 was filed in court on 17th December 2013. The Senior Lawyer duly informed Mr. Adrian Radcliffe of this development by a letter dated 13th January 2014. He also sought his confirmation if he could forward a draft of the proposed tenancy agreement for Mr. Radcliffe’s consideration. But suddenly, Mr. Adrian Radcliffe became evasive as he was off the hook.

In brief, Kena Properties Ltd not only bought this property for Ksh. 135 Million from the original owner, they took a loan of Ksh. 40 Million from Prime Bank Limited to top up the purchase price. Mr. Adrian Radcliffe had opportunity to take up the offer of first refusal to purchase the land but turned it down for lack of means. This begs the question: why should he punish an innocent purchaser of the land for value?

All the facts point that Mr. Adrian Radcliffe has himself to blame for his eviction from the land. Kena Properties Ltd bought the property ready to accommodate him as a tenant. He acknowledges receiving their draft tenancy agreement and not acting on it. If Mr. Adrian Radcliffe is not the owner and refused to enter a tenancy agreement, why is he complaining about being evicted from the land as a trespasser?

Mr. Adrian Radcliffe had indicated that he will be ready to move out in 2014 after his daughter finished preparatory school. But it seems he changed his mind and decided to adversely possess the land to the detriment of the Innocent Purchaser for Value (Kena Properties Ltd) who was trying to assist him. He is complaining because the lawful eviction interrupted him before trespassing on the land for 12 years.

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News & Analysis

What is Carbon Markets?

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Written by Faith Nyambura Kabora, Advocate.

Carbon markets are a mechanism designed to reduce greenhouse gas emissions which are essentially gases that trap heat in the atmosphere and contribute to the negative impacts of climate change such as prolonged drought and rising of sea levels.

Carbon markets operate on the principle of putting a price on carbon emissions to create commercial/economic incentives for public and private entities to reduce their carbon footprint and invest in cleaner, sustainable practices.

Ideally, by putting a price on carbon, the carbon markets encourage sustainable environmental practices and help counties meet their emission reduction targets under international treaties, like the Paris Agreement, which Kenya is a signatory to. For a broader understanding, here is how a carbon market works;

  1. A Government establishes a limit on the total amount of greenhouse gas emission/pollution is allowed within its geographical limits;
  2. A grant, say permissions are created and distributed to eligible participants. This allowance represents the right to emit a certain amount of greenhouse gas;
  3. The participants can then buy and sell the allowances. Ideally, those who reduce their emissions more efficiently sell their surplus allowance to those who find it more challenging to reduce the emissions. If a company pollutes a lot, they need to buy more permissions, and if they do not pollute as much, they can sell their extra permissions.
  4. Entities are required to hold enough allowances to cover their actual emissions. If they exceed allocated allowances, they face penalties or, as expounded above, they buy additional allowances. This is the part where compliance becomes mandatory for all the key players.
  5. The price of the allowances fluctuates based on supply and demands and reflects the cost of emitting greenhouse gases. It is essentially like paying for pollution.

A carbon market plays a pivotal role in advancing climate action and promoting sustainable practices by incentivizing companies to reconsider their pollution practices, which can result in financial consequences as pollution becomes a costly endeavor. In Kenya, the introduction of a Carbon Market is imperative as the world confronts the dire consequences of climate change. Furthermore, it offers a commercial opportunity for investors considering the growing demand for environmentally friendly and carbon neutral products and services.

As mentioned above, the Paris Agreement is one of the most important international treaties dedicated strengthen global response to the negative impact of climate change. Ultimately, the Agreement’s goal is to motivate countries to limit global emissions and more importantly, to hold them accountable for their actions around reducing their carbon footprints.

Kenya as a signatory to the Paris Agreement has made significant contributions towards fulfilling the obligations under the Paris Agreement of limiting global temperature. The Climate Change (Amendment) Act 2023, nudges Kenya towards the realization of Article 6 of the Paris Agreement by introducing provisions and regulation of and participation in carbon markets.

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As one of the top law firms in Nairobi, MMA Advocates is renowned for its proactive strategy and innovative legal lawyer advice. Our firm is committed to delivering strategic assistance that not only tackles current difficulties but also equips clients for future legal trends and advancements. As top lawyers in Nairobi Kenya, we take great satisfaction in our ability to combine in-depth legal knowledge with creative problem-solving. We keep a close eye on business trends and legal advancements to deliver timely guidance that enables our clients to make wise choices.

Our main goal as MMA Advocates is to establish long-lasting partnerships based on integrity, decency, and reliability. Since every client’s circumstance is unique, our best advocates in Kenya offer timely service and individualized attention at every stage of our collaboration. We make sure our clients are informed and empowered throughout their legal journey because we value openness and transparency in communication. In every case we take on, we are deeply committed to obtaining positive results and client satisfaction. This is just one aspect of our unwavering commitment to quality.

Whether you are a startup negotiating regulatory obstacles, an established corporation expanding, or a private citizen seeking legal assistance on personal problems, our Best Corporate Lawyers in Kenya are dedicated to becoming your legal partner. Our expertise include Commercial Litigation, Real Estate & Development, Fintech, Public Procurement (Public Private Partnerships), Project Finance, Public Law Litigation, Legal Audits & Compliance Advisory and Crisis Management.

We hope to arm you with the legal know-how and strategies needed to achieve your objectives. Our team enjoys taking on challenging legal matters with creativity and strategic understanding, protecting your rights and effectively achieving your goals. With a thorough comprehension of both regional laws and global norms, we are prepared to confidently and competently lead you through the complexities of corporate law.

In the intensely competitive legal arena, our tailored legal and strategic solutions distinguish us. We value depth over breadth, guaranteeing our clients our full dedication and unparalleled efficiency. Where many spread themselves wide, we narrow our focus to a select few of the most challenging cases. We tread the path less traveled.

To find out more about how MMA Advocates in Nairobi Kenya can help you with your legal issues, get in touch with us. With our team of committed professionals and our standing as one of the top law firms in Nairobi, we are well-positioned to offer outcomes that surpass expectations and guarantee your success in a legal environment that is always changing.

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News & Analysis

Review: Alternative Dispute Resolution (ADR) Journal, Volume 12(3), 2024

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The Alternative Dispute Resolution (ADR) Journal, Volume. 12, No.3, 2024 covers pertinent and emerging issues across all ADR mechanisms. This volume exposes our readers to a variety of salient topics and concerns in ADR including Building Peace in Africa, Public Policy as a Ground of Setting-Aside an Arbitral Award, Ethics, Integrity and Best Practice in Mediation, Accessing Justice in Kenya, Sports Arbitration, ESG Arbitration, Arbitration of Investor-State Dispute in Kenya, Article 159(2) of the Constitution of Kenya 2010 and issuance of interim measures by Arbitral Tribunals. The ADR Journal is a publication of the Chartered Institute of Arbitrators, Kenya Branch. It provides a platform for scholarly debate and in-depth investigations into both theoretical and practical questions in Alternative Dispute Resolution.

The journal is edited by Professor of Law at the University of Nairobi, Faculty of Law Hon Prof. Kariuki Muigua, a distinguished law scholar, an accomplished mediator and arbitrator with a Ph.D. in law from the University of Nairobi and widespread training and experience in both international and national commercial arbitration and mediation. Prof. Muigua is a Fellow of Chartered Institute of Arbitrators (CIArb)- Kenya chapter and also a Chartered Arbitrator. He is a member of the Permanent Court of Arbitration, The Hague. He also serves as a member of the National Environment Tribunal. He has served as the Chartered Institute of Arbitrator’s (CIArb- UK) Regional Trustee for Africa from 2019 -2022.

In the paper “Building Peace in Africa through Alternative Dispute Resolution”  Hon. Prof. Kariuki Muigua critically discusses the role of Alternative Dispute Resolution (ADR) mechanisms in peace building in Africa. The paper argues that ADR mechanisms can play a fundamental role in building peace in Africa. The paper further posits that ADR mechanisms are able to enhance sustainable peace in Africa due to their focus on reconciliation and restorative justice. It proposes solutions towards building peace in Africa through ADR.

In “the Emergence of the International Commercial Court: A Threat to Arbitration of Investor-State Dispute in Kenya” Marion Injendi Wasike and Dr. Kenneth W. Mutuma argue that the proliferation of international commercial courts, including their introduction in Kenya, necessitates a thorough analysis of their implications on arbitration’s role in investor-state disputes. By juxtaposing these emerging judicial entities against traditional arbitration paradigms, the discussion aims to unravel the complexities and potential shifts in dispute resolution preferences, highlighting the balance between innovation in legal adjudication and the sustenance of arbitration’s revered position in the international legal order.

Kamau Karori SC, MBS in “Striking a Balance: A Delicate Dance Between Sanctity and Scrutiny” notes that the continuing debate —between upholding the inviolability of arbitral awards and judicial intervention in cases of egregious injustice points to the need for delicate balancing between non-interference and the need to correct unmistakably unjust awards. The urgency of this discourse is informed by the need to prevent consumers or potential consumers of arbitration services opting to exclude arbitration clauses due to perceived deficiencies. The article seeks to navigate the genesis of the debate, delicately dissect the different perspectives, and draw comparisons with global practices.

The article “Reforming Kenya’s Law on Probation and Aftercare Services to Promote Alternative Dispute Resolution” by Michael Sang engages in a comprehensive exploration of Kenya’s Probation of Offenders Act within the context of the growing role of Alternative Dispute Resolution (ADR) principles in the nation’s criminal justice system. Drawing inspiration from international legal instruments such as “The Beijing Rules,” “Bangkok Rules,” and “Tokyo Rules,” the study evaluates the Act’s provisions, strengths, and limitations. It concludes with a call for thoughtful reforms that align Kenya’s criminal justice system with international standards, emphasizing a balanced and compassionate approach to justice.

The “Upholding Ethics, Integrity and Best Practice in Mediation” by Hon. Prof. Kariuki Muigua, OGW critically discusses the need for standardization of mediation practice in Kenya by adopting best practices. It examines some of the challenges facing mediation practice in Kenya. It is also explores measures adopted towards fostering best practices in mediation at both the global and national level. The paper further suggests recommendations aimed at upholding ethics, integrity and best practice in mediation. In “Exploring the Role of Mediation in Promoting Small and Medium Enterprises (SMEs) and Fostering Economic Growth in Kenya” Atundo Wambare offers an in-depth analysis of the use of mediation in promoting the growth of small and medium enterprises (SME’s). He makes recommendations on how best mediation can be harnessed as a tool for economic growth in Kenya.

James Njuguna and Nyamboga George Nyanaro in “Compulsory Resolution or Autonomy Erosion? The Debate on Mandatory Sports Arbitration delve into the contentious issue of mandatory sports arbitration, questioning its role as a potential future pathway for dispute resolution. Their research examines the implications of compulsory arbitration on athletes’ autonomy, juxtaposing it with the benefits of expedited dispute resolution.

Paul Ngotho in “Constitution of Kenya 2010 Article 159.2.(c): Ancestry, Anatomy, Efficacy & Legacy” traces the rather odd origin and everlasting effect of the often-cited Article 159.2.(c) of the Constitution of Kenya 2010. It acknowledges the central role played by two members of the Chartered Institute of Arbitrators Kenya Branch, quietly and privately, away from the mainstream constitution making process. One of them chairman of the Branch, the other the Minister of Justice, National Cohesion and Constitutional Affairs.

David Onsare in “Navigating The ESG Maze: Emerging Trends in Arbitration and Corporate Accountability” embarks on a timely exploration of the dynamic interplay between Environmental, Social and Governance (ESG) factors and arbitration, a field gaining critical importance in the realm of corporate accountability. By offering a comprehensive view of the complexities and practical implications of ESG in arbitration, the article serves as a crucial guide for legal professionals navigating the evolving landscape of corporate responsibility and arbitration. In “Public Policy as a Ground of Setting-Aside an Arbitral Award: Musings on the Centurion Engineers Civil Appeal Judgment”

Ibrahim Kitoo argues a case for upholding of public policy as a ground for the nonrecognition, non-enforcement and setting aside of an arbitral award in cases where to recognise and enforce such awards proves to be a clear violation of the law and against the public good. Juvenalis Ngowi in “Arbitral Tribunals: Do they have the power to issue interim measures during the proceedings?” discusses the powers of the Arbitral Tribunal to grant such orders and examines some procedural rules which empower arbitrators to issue such orders, the scope of those powers, and the factors to be considered when granting interim measures in the arbitral proceedings.

In “Examining the Efficacy of Mediation as A Tool for Accessing Justice in Kenya: Opportunities, Challenges, and Future Perspectives” Murithi Antony undertakes a thorough examination of mediation as a form of ADR in the Kenyan context. He identifies opportunities arising from the integration of mediation into the country’s legal system and explores barriers impeding its widespread adoption. The article concludes with a resounding call to action for all stakeholders to champion the use of mediation collaboratively and proactively, given its proven efficacy in dispute resolution.

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Kariuki Muigua & Company Advocates is a Top-Tier Kenyan law firm situated at the heart of Nairobi city in Kenya. We are a broad-based practice with a reputation for offering a full range of quality services to our domestic and international clients.

At KM&CO, we take pride in offering personalized attention to our diverse clientele. Our practice aspires to offer efficient and cost-effective legal solutions that meet our esteemed clients’ needs in a timely and competent manner.

KM&CO was founded in 1993 by the current senior Advocate, Dr. Kariuki Muigua. It is based in the Central Business District of Nairobi at the Pioneer Assurance House located opposite 7th August Bomb Blast Memorial Park enjoying the convenience of close proximity to major financial, commercial and governmental institutions.

We are open for consultations with our clients worldwide; we have lawyers on standby for 24 hours to cover diverse time zones that impact on our global clients.

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News & Analysis

Way Forward in Applying Collaborative Approaches Towards Conflict Management

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By Hon. Prof. Kariuki Muigua, OGW, PhD, C.Arb, FCIArb is a Professor of Environmental Law and Dispute Resolution at the University of Nairobi, Member of Permanent Court of Arbitration, Leading Environmental Law Scholar, Respected Sustainable Development Policy Advisor, Top Natural Resources Lawyer, Highly-Regarded Dispute Resolution Expert and Awardee of the Order of Grand Warrior (OGW) of Kenya by H.E. the President of Republic of Kenya. He is the Academic Champion of ADR 2024, the African ADR Practitioner of the Year 2022, the African Arbitrator of the Year 2022, ADR Practitioner of the Year in Kenya 2021, CIArb (Kenya) Lifetime Achievement Award 2021 and ADR Publisher of the Year 2021 and Author of the Kenya’s First ESG Book: Embracing Environmental Social and Governance (ESG) tenets for Sustainable Development” (Glenwood, Nairobi, July 2023) and Kenya’s First Two Climate Change Law Book: Combating Climate Change for Sustainability (Glenwood, Nairobi, October 2023), Achieving Climate Justice for Development (Glenwood, Nairobi, October 2023), Promoting Rule of Law for Sustainable Development (Glenwood, Nairobi, January 2024) and Actualizing the Right to a Clean and Healthy Environment (Glenwood, Nairobi, March 2024)*

It is necessary to embrace and utilize collaborative approaches in managing conflicts. These techniques include mediation, negotiation, and facilitation. These mechanisms are effective in managing conflicts since they encourage parties to embrace and address disagreements through empathy and listening towards mutually beneficial solutions. Collaborative approaches also have the potential to preserve relationships, build trust, and promote long term positive change. They also ensure a win-win solution is found so that everyone is satisfied which creates the condition for peace and sustainability. These approaches are therefore ideal in managing conflicts. It is therefore important to embrace collaborative approaches in order to ensure effective management of conflicts.

In addition, it is necessary for third parties including mediators and facilitators to develop their skills and techniques in order to enhance the effectiveness of collaborative approaches towards conflict management. For example, it has correctly been observed that mediators and facilitators should listen actively and empathetically in order to assist parties to collaborate towards managing their dispute. Therefore, when a dispute arises, the first step should involve listening to all parties involved with an open mind and without judgment. This should entail active listening, which means paying attention to both verbal and nonverbal cues and acknowledging the emotions and perceptions involved.

It has been observed that by listening empathetically, a third party such as a mediator of facilitator can understand each person’s perspective and start to build a foundation for resolving the conflict through collaboration. In addition, while collaborating towards conflict management, it is necessary to encourage and help parties to focus on interests and not positions. It has been pointed out that focusing positions can result in a standstill which can delay or even defeat the conflict management process. However, by identifying and addressing the underlying interests parties can find common ground and collaborate towards coming up with creative solutions towards their conflict.

Mediators and facilitators should also assist parties to look for areas of agreement or shared goals. Identifying a common ground can build momentum and create a positive environment for resolving the conflict. Further, in order to ensure the effectiveness of collaborative approaches in conflict management, it is necessary to build strong collaboration. It has been asserted that strong collaboration can be achieved by establishing a shared purpose, cultivating trust among parties, encouraging active participation by all parties, and promoting effective communication.

Strong collaboration enables parties to develop trust between and among themselves and strengthen communication channels between the various parties. It also helps to generate inclusive solutions that arise from wider stakeholders’ views. Therefore while applying collaborative approaches, it is necessary for parties to foster strong collaboration by identifying common goals, building trust, ensuring that all stakeholders are involved, and communicating effectively in order to come up with win-win outcomes.

Finally, while embracing collaborative approaches in conflict management, it is necessary for parties to consider seeking help from third parties if need arises. For example, negotiation is always the first point of call whenever a conflict arises whereby parties attempt to manage their conflict without the involvement of third parties. It has been described as the most effective collaborative approach towards conflict management since it starts with an understanding by both parties that they must search for solutions that satisfy everyone.

It enables parties to a dispute to come together to openly discuss the issue causing tension, actively listen to each other, and come up with mutually satisfactory solutions. However, it has been correctly observed that negotiation may fail especially if the conflict is particularly complex or involves multiple parties due to challenges in collaborating. In such circumstances, where negotiation fails, parties should consider resorting to other collaborative approaches such as mediation and facilitation where they attempt to manage the conflict with the help of a third party. A mediator or facilitator can assist parties to collaborate and continue with the negotiations and ultimately break the deadlock.

*This is an extract from Kenya’s First Clean and Healthy Environment Book: Actualizing the Right to a Clean and Healthy Environment (Glenwood, Nairobi, January 2024) by Hon. Prof.  Kariuki Muigua, OGW, PhD, Professor of Environmental Law and Dispute Resolution, Senior Advocate of Kenya, Chartered Arbitrator, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Lifetime Achievement Award 2021 (CIArb Kenya), African Arbitrator of the Year 2022, Africa ADR Practitioner of the Year 2022, Member of National Environment Tribunal (NET) Emeritus (2017 to 2023) and Member of Permanent Court of Arbitration nominated by Republic of Kenya and Academic Champion of ADR 2024. Prof. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Prof. Kariuki Muigua teaches Environmental Law and Dispute resolution at the University of Nairobi School of Law, The Center for Advanced Studies in Environmental Law and Policy (CASELAP) and Wangari Maathai Institute for Peace and Environmental Studies. He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Prof. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Managing Partner of Kariuki Muigua & Co. Advocates and Africa Trustee Emeritus of the Chartered Institute of Arbitrators 2019-2022. Prof. Muigua is a 2023 recipient of President of the Republic of Kenya Order of Grand Warrior (OGW) Award for his service to the Nation as a Distinguished Expert, Academic and Scholar in Dispute Resolution and recognized among the top 5 leading lawyers and dispute resolution experts in Band 1 in Kenya by the Chambers Global Guide 2024 and was listed in the Inaugural THE LAWYER AFRICA Litigation Hall of Fame 2023 as one of the Top 50 Most Distinguished Litigation Lawyers in Kenya and the Top Arbitrator in Kenya in 2023.

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Kariuki Muigua & Company Advocates is a Top-Tier Kenyan law firm situated at the heart of Nairobi city in Kenya. We are a broad-based practice with a reputation for offering a full range of quality services to our domestic and international clients.

At KM&CO, we take pride in offering personalized attention to our diverse clientele. Our practice aspires to offer efficient and cost-effective legal solutions that meet our esteemed clients’ needs in a timely and competent manner.

KM&CO was founded in 1993 by the current senior Advocate, Dr. Kariuki Muigua. It is based in the Central Business District of Nairobi at the Pioneer Assurance House located opposite 7th August Bomb Blast Memorial Park enjoying the convenience of close proximity to major financial, commercial and governmental institutions.

We are open for consultations with our clients worldwide; we have lawyers on standby for 24 hours to cover diverse time zones that impact on our global clients.

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