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Place of Indigenous Knowledge in Conservation and Sustainable Development Goals

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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*

The rights of Indigenous Peoples are considered to be of special relevance to conservation for two main reasons: The first is that priority sites for biodiversity conservation frequently overlap with the territories of Indigenous Peoples. This is often because of Indigenous Peoples’ custodianship of those lands which has meant that they have retained their value for biodiversity; and secondly, Indigenous Peoples very often have a close relationship to the land and to nature and, therefore, conservation has the potential to affect that relationship – both positively and negatively.

It has rightly been observed that the livelihoods of indigenous peoples, custodians of the world’s forests since time immemorial, were eroded as colonial powers claimed de jure control over their ancestral lands, where the continuation of European land regimes in Africa and Asia meant that the withdrawal of colonial powers did not bring about a return to customary land tenure. This is despite the acknowledgement that the rights of indigenous peoples’ are often particularly relevant for conservation and sustainable use of natural resources, due to the frequent overlap of high biodiversity areas and indigenous lands, and the vulnerability of natural resource-dependent customary livelihoods to changes in access or use.

In addition, indigenous peoples’ traditional ecological knowledge, traditional systems of control, use and management of lands and resources, and traditional institutions for self-governance also contribute substantially to conservation. While across sub-Saharan Africa, natural resources remain central to rural people’s livelihoods with local norms and customs shaping people’s everyday forms of resource use, the commercial uses of natural resources often remain highly centralized, conditioned by government policies of the colonial and post-colonial eras.

Notably, the term “indigenous knowledge” is generally used refer to how members of a community perceive and understand their environment and resources, particularly the way they convert those resources through labour. Indigenous groups should be included in reforestation and forest management plans as they can potentially offer alternative knowledge and perspectives based on their own locally developed practices of resource use. Indigenous knowledge is the local knowledge that is unique to a culture or society, seen as the social capital of the poor since it is their main asset to invest in the struggle for survival, to produce food, to provide for shelter and to achieve control of their own lives.

The SDGs recognises the importance of this body of knowledge as it has several goals that seek to incorporate the knowledge vested in indigenous people in order to achieve its main agenda. Indigenous knowledge has been hailed as capable of solving local problems, as it offers a resource to help grow more and better food, adds to maintain healthy lifestyles, and it provides opportunities to share wealth and prevent conflicts. For instance, some commentators have observed that: with regard to agro-ecology, indigenous people practised mixed farming where organic manure in the form of plant remains, cow dung and urine, and chicken droppings was applied to gardens to improve soil fertility as they are good sources of organic fertilizer which tended to promote organic farming; the use of nitrogen fixing pulses in mixed cropping, growing of plants of different patterns, maturity and duration assisted significantly in stabilizing soil fertility and prevention of soil erosion; in addition, the practice was an effective way, biologically, of managing pests and diseases; it also conserved biodiversity of animal and biannual crops and plants while reducing labour costs; in addition, trees were planted in gardens to provide shade for the plants, to act as wind breaks, and also to demarcate people’s farmlands and homes; and as such, reviving organic agriculture would help conserve water, mitigate climate change and ensure sustained biodiversity.

Some of the main ways through which indigenous knowledge may be used in promoting biodiversity conservation include but not limited to: trees which were traditionally regarded as housing spirits or sacred were not be felled without performing rituals, thus achieving a protective effect on trees such as mugumo tree (Ficus natalensis/Ficus thonningii) among the Gikuyu community of Kenya; animals in a particular habitat may be regarded as sacred and are therefore protected from hunting; sacred groves or forests are pieces of land set aside for spiritual purposes, as shrines; traditional farming practices are champions in sustainable land and water management as they involve land rotation and shifting cultivation allowing the land for more than 10 years to restore its natural fertility; all over sub-Saharan Africa indigenous plants are used in preventing and curing diseases in plants, animals and humans thus guaranteeing their protection and conservation.

Arguably, while there is a need for deeper research to demonstrate to what extent indigenous knowledge rules are able to realize targets of sustainable use and the questions on effectiveness and efficiency of community based approaches to biodiversity conservation and management arise, in theory, when biodiversity can be maintained and monitored through customary laws, this is preferable over maintenance through codified law. Notwithstanding this, the provisions in the Protection of Traditional Knowledge and Traditional Cultural Expressions Act, 2016 offer a rare opportunity for the state to realize the vision of the 2030 SDGs by incorporating Kenyan communities’ indigenous knowledge in the roadmap to the achievement of the sustainable development agenda. By including these communities and their knowledge, any development policies aimed to benefit these communities will be more likely to not only respond to their cultural needs and preferences but will also enable them meaningfully participate.

Some commentators rightly argue that, despite any gaps in knowledge in the place of indigenous knowledge in biodiversity conservation for realization of SDGs, the following indigenous and other traditional communities’ rights should be respected, in relation to the lands, territories, waters, coastal seas and other resources which they traditionally own or otherwise occupy or use, and which fall within protected areas, subject to agreements with the agencies in charge of national protected area systems, and in the context of agreed management regulations and plans: rights with regard to sustainable, traditional use of their lands and resources; rights to participate in management and rights to participate in decision-making.

Other rights of indigenous and other traditional communities that must be respected include the right to participate in determining priorities and strategies for the development or use of their lands; rights to use their own traditional institutions and authorities to co-manage their lands and resources; rights to require that States obtain the free and informed consent of the respective communities, prior to the approval of any project affecting their lands and resources; rights to improve the quality of their lives, and to benefit directly and equitably from the conservation and ecologically sustainable use of natural resources; collective rights to maintain and enjoy their cultural and intellectual heritage, and the knowledge related to biodiversity and natural resource management; and rights not to be removed from the zones they have traditionally occupied within protected areas.

Some, however, argue that protected areas and community agriculture can indeed co-exist. As the number of crop species and varieties declines, local nitrogen-fixing bacteria, mycorrhizae, predators, pollinators, seed dispersers and other species that co-evolved over centuries with traditional agricultural systems die out. In addition, the use of fertilizers, pesticides and high-yielding varieties to maximize production and profits over the short term exacerbates this loss of biodiversity.

Arguably, diversity of crop species and the diversity of varieties within a species have traditionally strengthened the resilience of agriculture, and Protected areas can contribute to this effort through maintaining wild relatives of crops. As such, the agricultural community should be seen as part of a larger and more comprehensive ecosystem which provides both goods and services from nature through a wellmanaged protected system. Fostering this positive relationship between agriculture and protected areas may however require broader adoption of the new approaches.

*This article is an extract from the Article: Fostering a Human Rights Approach to Biodiversity Conservation in Kenya 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.

References

Muigua, K. “Fostering a Human Rights Approach to Biodiversity Conservation in Kenya,” (Kariuki Muigua & Co. Advocates, 2011), Available at: http://kmco.co.ke/wp-content/uploads/2021/11/Fostering -a-Human-Rights-Approach-to-Biodiversity-Conservation-in-Kenya-Kariuki-Muigua-November-2021.pdf (accessed on 01/04/2022).

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Brief Overview of Kenyan Bankruptcy Law

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Bankruptcy refers to the state where a debtor is unable to pay their debts when the debts become due. For a person to be bankrupt there must be an order by the court stating that they are unable to pay their debts.

Who can apply for a bankruptcy order?

Either the debtor or the debtor’s creditor(s) may apply to court for the issuance of bankruptcy Order.

What conditions must be met for the court to issue bankruptcy order?

Where the application for bankruptcy order is made by a debtor, they must satisfy the court that:

  • They are either domiciled in Kenya, personally present in Kenya or three years preceding the date of the application they have been ordinarily resident or carried business in Kenya.
  • Their debt meets the minimum prescribed threshold
  • They have not previously been adjudged bankrupt
  • They are not in the process of being adjudged bankrupt

When the application for bankruptcy order is made by creditor(s), they must satisfy the court that:

  • The debtor is either domiciled in Kenya, personally present in Kenya or three years preceding the date of the application they have been ordinarily resident or carried business in Kenya.
  • The debtor owes them a sum of money equal to or above the prescribed threshold
  • The debt is for a liquidated amount payable to the applicant creditor(s) either immediately or at some certain future time, and is unsecured
  • The debt is one that the debtor appears to be unable to pay or to have no reasonable prospect of being able to pay
  • There is no outstanding application to set aside a statutory demand in respect of the debt
  • They have given a notice of not less than twenty one days seeking payment of debt due immediately and the duration has lapsed without being paid
  • They obtained Judgment, served it on the debtor and after 21 days the decretal sum has not been paid
  • They have served on the debtor a demand requiring the debtor to establish to their satisfaction that there is a reasonable prospect that the debtor will be able to pay a debt payable in future, when it falls due and 21 days have lapsed without the demand being complied with or set aside.

Upon being satisfied that the above conditions have been met, the court issues a bankruptcy Order.

Can court issue a bankruptcy order on an application by secured creditors?

Court can make bankruptcy order on application by secured creditor(s) only when:

  • The application contains a statement by the person having the right to enforce the security that the creditor is willing, in the event of a bankruptcy order being made, to give up the security for the benefit of all the bankrupt’s creditors; OR,
  • The application is expressed not to be made in respect of the secured part of the debt and contains a statement by that person of the estimated value at the date of the application of the security for the secured part of the debt.

Under what circumstances can court dismiss an application for bankruptcy order?

The Court may dismiss an application if it is satisfied that either the debtor is able to pay all of the debtor’s debts; OR—

  • That the debtor has made an offer to secure or compound for a debt in respect of which the application is made
  • That the acceptance of that offer would have required the dismissal of the application; and
  • That the offer has been unreasonably refused.

What are the consequences of a Bankruptcy Order?

  • Where a trustee in bankruptcy has been appointed, the property of the bankrupt vests in the trustee. If no trustee has been appointed, the property of the bankrupt will vest in the Official Receiver to act as the interim trustee.
  • The bankrupt suffers all the disabilities of law for instance: they cannot run for elected positions, they can’t directors of a company, they can’t file suits in their own name, and they can’t enter into contracts.
  • No civil proceedings can be instituted or continued against the bankrupt once the order is made
  • The bankrupt has an obligation to provide a true and accurate account of all his assets, income and liabilities
  • The official receiver is entitled to recover assets that the bankrupt has transferred within two years immediately preceding the bankruptcy.
  • Does not extinguish debts of a bankrupt but only protects them from creditors commencing recovery proceedings without leave of court.

Kiragu Wathuta & Company Advocates was established in 2013 by Mr. Kiragu Wathuta, an Advocate of the High Court of Kenya called to the bar in the year 2009. Our firm is run by an organized team of proffessionals who are highly skilled and widely exposed to diverse areas of law and the industry in general.

We have built a name for PROFESSIONALISM AND EXPERTISE in various disciplines of legal services including but not limited to civil and commercial litigation, conveyance and property matters as well as commercial and corporate law practice.

We provide value-added service in consonance with each individual client’s needs. For our clients, their interests are paramount and the client is our number one priority.

Our Portfolio of Clients is drawn from Property Owners, Developers, Investors and Joint Ventures, Corporate Entities, Financial institutions, Parastatals, Manufacturing Companies, Mortgage Institutions as well as individuals. We continue to endear our services to reach beyond our borders.

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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.

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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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.

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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