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Review: Journal of Conflict Management and Sustainable Development, Volume 8 No. 2

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The latest issue of the Journal of Conflict Management and Sustainable Development, Volume 8 No. 2, sustains the tradition of excellence in research, publishing and scholarship that has seen the Journal continue to grow as a key academic resource in the fields of Conflict Management, Sustainable Development and related fields of knowledge. This is the second issue of the Journal in the year 2022 and a demonstration of the commitment of the Journal Editors led by phenomenal Environmental Law Scholar, leading Dispute Resolution and Conflict Management Practitioner and renown Sustainable Development Expert Dr. Kariuki Muigua, PhD towards spearheading scholarly discourse on the themes of Conflict Management and Sustainable Development.

The journal continues its focus on emerging and pertinent areas and challenges in the fields of Conflict Management and Sustainable Development and where necessary proposes necessary legal, institutional and policy reforms towards addressing these issues. The Journal is now one of the most cited and authoritative publications in the fields of Conflict Management and Sustainable Development. The first article by Dr. Kariuki Muigua on “Fulfilling the Right to Water as a Socio-economic Right for the People of Kenya,” underscores that water is a basic human right both under international and national laws. In fact, the right to water is considered as part of the socioeconomic rights. In this article, he critically discusses the challenges that have hindered the realization of this right in Kenya and offers some recommendations on how the same can be overcome as part of realization of the constitutionally guaranteed socioeconomic rights in Kenya.

In the article, “Unequal Pay for Education of Equal Value: A Subtle Discrimination Against Non-SADC International Undergraduate Students,” Johana Kambo Gathongo* fundamental legal analogies from the above a South Africa Constitutional Court judgement as well as employment law ‘equal pay for work of equal value’ to show that there is conspicuous disparities in the payment of fee across all universities in the South Africa. He uses data from randomly selected universities to highlight the practice and disparity in terms of the payment of the ‘international levy’. As the Constitutional Court held in LarbiOdam case, “Non-citizens are a group lacking in political power and as such vulnerable to having their interests overlooked and their rights to equal concern and respect violated. As a result, they should be protected in terms of the equality clause.” The article proposes remedial and other less severe, non-discriminatory practices through which universities may adopt to generate funds.

Decarbonisation as a climate mitigation strategy is gaining much traction lately due to the heightening climate variabilities and risks. Noting that over 70 percent of forest loss in Sub-Saharan Africa (SSA) is linked to agricultural expansion, Caroline Jepchumba Kibii examines the two sectors jointly because an activity in one sector implicates the other. In the article, “Decarbonising Africa’s Agriculture and Forestry: Synergies and Trade-offs for Sub-Saharan Africa,” she argues that while the journey towards decarbonising Africa’s agriculture and forestry faces several challenges; it also presents opportunities to exploit natural resources and conserve and develop green projects that promote sustainable development. The paper analyses the greenhouse gas emission sources in the agriculture and forestry sectors while interrogating some of the challenges barring their decarbonisation and considers potential tradeoffs in SSA.

Prof. Adesina Temitayo Bello in the article “Neg- Med Model; A Special Tool for Resolving Boko Haram Insurgency in Nigeria” examines the incessant evolution of the dreaded Boko Haram sect, its activities, and the techniques used by the Nigerian government to totally annihilate this canker worm. He reveals that the approaches adopted by Government to tackle this issue have brought little or no success because crucial elements like conflict resolution have not been given optimum attention. The article recommends that the government of Nigeria should, in the quest to mitigate and finally resolve the Boko Haram insurgency, initiate a conflict resolution mechanism other than the use of the military which signifies the application of force against the sect. It recommends the use of Negotiation and Mediation in resolving the crisis.

In the article “Corruption and Sustainable Development: Tracing the Root Causes and Radical Proposals for Way Forward,” Henry K. Murigi attempts to illustrate how the state of nature that was advanced by Thomas Hobbes presents itself in modern day corruption. In particular, the paper explores whether the idea of the state of nature can be located in the modern-day corruption by first deliberating on the context of Thomas Hobbes then consider the modern-day corruption. Thereafter, the paper shows the overlaps between state of nature and corruption. The paper then focuses on a conceptualization of the most notorious words of Thomas Hobbes which have generated numerous literary debates and thinking.

Dr. Kariuki Muigua in “Utilising Science and Technology for Environmental Management in Kenya,” advocates for the use of science and technology for environmental management in Kenya. He critically discusses environmental management tools in Kenya which include the law, ethics, Environmental Impact Assessment, market forces and institutions such as national courts and tribunals and the public while pointing out their shortcomings. The paper argues that environmental management tools in Kenya have not been fully effective in environmental protection and conservation as evidenced by several environmental concerns such as pollution and degradation. He presents a case for the enhancement of science and technology as an environmental management tool in Kenya in order to effectively achieve the right to a clean and healthy environment and promote sustainable development.

Oseko Louis D. Obure in “Realising Sustainable Use of Biomass Energy in Kenya: Appraising the Regulatory and Institutional Framework” notes that increasingly the world has been shifting toward cleaner and sustainable energy to ensure sustainable development in the energy industry. He argues that this calls on every country to ensure affordable, secure, and clean energy for its citizens. However, with increase in fuel prices by the introduction of the value-added tax of 8% on petroleum products, he anticipates that the cost of living and price of alternative sources of energy will equally soar. He proposes in mitigation taking measures to ensure safe and sustainable use of biomass is important. In turn, he calls for efficient regulatory and institutional framework over biomass upon appraising Kenya’s regulatory and institutional framework over biomass and proffer recommendations for the better and sustainable use of biomass.

In “Uti Possidetis, Self-determination and Conflicts in the Horn of Africa: The Case of Eritrea’s Secession from and Border Conflict with Ethiopia,” Berita Mutinda Musau examines the relationship between the principle of ut possidetis and the right to self-determination within the African context. It looks at the interplay between the two in enhancing conflict and challenging peace and stability in Africa particularly in the Horn of Africa. The study uses Ethiopia and Eritrea as a case study to establish the interplay between self-determination and uti possidetis in informing Eritrea’s secession from Ethiopia and the subsequent bloody border conflict between the two countries. The study concludes that demarcation of borders in peacetime coupled with good, representative and inclusive governments would go a long way in addressing the challenges that uti possidetis and self-determination pose to peace and security not only in the Horn of Africa but also in the whole of Africa.

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Former KCB Company Secretary Sues Over Unlawful Dismissal

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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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Court of Appeal Upholds Eviction of Radcliffes from Karen Land

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Adrian Radcliffe, the Expatriate Squatter, Evicted from Karen Property by Innocent Purchaser for Value

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.

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Review: Journal of Conflict Management and Sustainable Development, Vol. 9, No. 1

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The Journal of Conflict Management and Sustainable Development, Volume 9, Issue No. 1, which is edited by and published by Dr. Kariuki Muigua, PhD is out and stays true to the reputation of the journal in providing a platform for scholarly debate on thematic areas in the fields of Conflict Management and Sustainable Development. The current issue published in September 2022 covers diverse topics including Resolving Oil and Gas Disputes in Africa; National Environment Tribunal, Sustainable Development and Access to Justice in Kenya; Protection of Cultural Heritage During War; The Role of Water in the attainment of Sustainable Development in Kenya; Property Rights in Human Biological Materials in Kenya; Nurturing our Wetlands for Biodiversity Conservation; Investor-State Dispute Resolution in a Fast-Paced World; Status of Participation of Women in Mediation; Business of Climate Change and Critical Analysis of World Trade Organization’s Most-Favored Nation (MFN) Treatment.

Dr. Wilfred A. Mutubwa and Eunice Njeri Ng’ang’a in “Resolving Oil and Gas Disputes in an Integrating Africa: An Appraisal of the Role of Regional Arbitration Centres” explore the nature of disputes in the realm of oil and gas in Africa taking a look into the recent continental and sub-regional developments in a bid to establish regional integration. Additionally, it tests the limits of intra-African trade and dispute resolution and the imperatives for the African regional courts and arbitration centres. In “National Environment Tribunal, Sustainable Development and Access to Justice in Kenya,” Dr. Kariuki Muigua discusses the role played by the National Environment Tribunal (NET) in promoting access to justice and enhancing the principles of sustainable development in Kenya. The paper also highlights challenges facing the tribunal and proposes recommendations towards enhancing the effectiveness of the tribunal.

Dr. Kenneth Wyne Mutuma in “Protecting Cultural Heritage in Times of War: A Case for History,” argues that cultural heritage is at the heart of human existence and its preservation even in times of war is sacrosanct. It concludes that it is thus critical for states to take positive and tangible steps to ensure environmental conservation and protection during war within the ambit of the existing international legal framework. In “The Role of Water in the attainment of Sustainable Development in Kenya,” Jack Shivugu critically evaluates the role of water in the attainment of sustainable development in Kenya and argues water plays a critical role in the attainment of the sustainable development goals both in Kenya and at the global stage. The paper interrogates some of the water and Sustainable Development concerns in Kenya including water pollution, water scarcity and climate change and suggests practical ways to enhance the role of water in the Sustainable Development agenda.

Dr. Paul Ogendi in “Collective Property Rights in Human Biological Materials in Kenya,” reflects on property rights in relation to human biological materials obtained from research participants participating in genomic research. He argues that property rights are crucial in genomic research because they can help avoid exploitation or abuse of such precious material by researchers. In “Nurturing our Wetlands for Biodiversity Conservation,” Dr. Kariuki Muigua notes that Wetlands have a vital role in not just delivering ecological services to meet human needs, but also in biodiversity conservation. Wetlands are vital habitat sites for many species and a source of water, both of which contribute to biodiversity protection. The paper examines the role of wetlands in biodiversity conservation and how these wetland resources might be managed to improve biodiversity conservation.

Oseko Louis D. Obure in “Investor-State Dispute Resolution in a Fast-Paced World,” preponderance of disputes between States or States and Investors created need for a robust, effective, and efficient mechanisms not only for the resolution of these disputes but also their prevention. He notes that developing states lead in being parties to Investor-State Disputes (ISD) particularly as respondents. He proceeds to conceptualize and problematize investor-state disputes resolution in a fast-paced world. Lilian N.S. Kong’ani and Dr. Kariuki Muigua in “Status of Participation of Women in Mediation: A case Study of Development Project Conflict in Olkaria IV, Kenya” review the status of participation of women in mediation to resolve conflicts between KenGen and the community. The paper demonstrates a need for further democratization of the mediation processes to cater for more participation of women to enhance the mediation results and offer more sustainable resolutions.

Felix Otieno Odhiambo and Melinda Lorenda Mueni in “The Business of Climate Change: An Analysis of Carbon Trading in Kenya analyses the business of carbon trading in the context of Kenya’s legal framework. The article examines the legal framework that underpins climate change into the Kenyan legal system and provides an exposition of the concept of carbon trading and its various forms. Michael Okello, in “Critical Analysis of World Trade Organisation’s Most-Favored Nation (MFN) Treatment: Prospects, Challenges and Emerging Trends in the 21st Century,” highlights the rationale behind MFN treatment and also restates the vision of multilateral trade to achieve equitable and special interventions with respect to trade in goods, services and trade related intellectual property rights in the affected states.

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