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.*
Kenya’s Vision 2030 is the long-term development blueprint for the country and is motivated by a collective aspiration for a better society by the year 2030. The aim of Kenya Vision 2030 is to create “a globally competitive and prosperous country with a high quality of life by 2030”. It aims to transform Kenya into “a newly-industrialising, middle income country providing a high quality of life to all its citizens in a clean and secure environment.” The economic, social and political pillars of Kenya Vision 2030 are anchored on the foundations of macroeconomic stability; infrastructural development; Science, Technology and Innovation (STI); Land Reforms; Human Resources Development; Security and Public Sector Reforms.
The Vision 2030 is to be implemented through successive five-year medium term plans. The current stage of implementation is the Third Medium Term Plan (MTP III) 2018-2022 whose theme is dubbed Transforming Lives: Advancing socio-economic development through the “Big Four.” The Second Medium Term Plan (MTP II) 2013-2017 was meant to achieve progress in development and modernization of infrastructure, improved security, human resource development, job creation, expanding access to affordable health care, and in modernizing the country’s public services. As to whether the progress in these areas was felt across the country remains both a development and political question. Currently, Kenya is thus pursuing the ‘BIG FOUR’ Agenda that seeks to ensure universal health coverage, affordable and decent housing, to increase the manufacturing contribution to the economy from 9.8 per cent to 15 per cent and guarantee food and nutrition security by 2022.
The Kenya government’s projects under the Big Four Agenda were allocated $4.3 billion from the $28 billion 2019/2020 budget. Universal health coverage got $906 million; manufacturing $40.8 million; affordable housing $183 million; and food and nutrition security $177 million.28 As already pointed out, the Agenda 2063 focuses on several areas of development including but not limited to: Sustainable and inclusive economic growth; Human Capital Development; Agriculture/value addition and agro-businesses development; Employment generation, especially the youth and females; Social Protection; Gender/Women development and youth empowerment; Good governance including capable institutions; Infrastructural development; Science, Technology, Innovation; Manufacturing-based industrialization; Peace and Security; and Culture, Arts and Sports.
These development themes notably overlap at the national and continental levels and it can thus be argued that the achievement of the national plans can greatly succeed by building synergies with the continental implementation plans especially as captured in the Agenda 2063 First Ten-year Implementation Plan 2014-2023. The dream of a successful continent can only be achieved through ensuring that the member States are not only supporting the realisation of Agenda 2063 but also ensuring that their national development plans are in harmony with the Agenda and that they are actually achieved not just a matter of wishful thinking. Kenya’s key development issues are especially among those given prominence in the Africa’s Agenda 2063. These include infrastructure, health, manufacturing, affordable housing and food and nutrition security, amongst others. Africa’s Agenda 2063 has set forth certain milestones related to integration, prosperity, and African ownership of its development programmes.
Further milestones are related to structural transformation, human development, good governance and on innovation and technology transfer. Some of the most significant milestones on innovation and technology transfer are building a better infrastructure, engineering and manufacturing base that shows significant increase in local content and input, increased science, technology and innovation (STI) output at national and regional levels and increased human capacity for science and technology and stimulating entrepreneurship through an increased number of added value products and services. Infrastructure is considered as bedrock for development, whereby, as an essential part of a supportive environment for investment and livelihood, adequate infrastructure promotes economic growth, reduces poverty, and improves delivery of health and other services.
A survey by Afrobarometer, a pan-African, non-partisan research network that conducts public attitude surveys on democracy, governance, economic conditions, and related issues across more than 30 countries in Africa, reported that provision of basic service infrastructure remains a challenge. On average across 35 African countries, only about two-thirds of citizens live in communities with an electric grid (65%) and/or piped water infrastructure (63%), and less than one in three have access to sewerage (30%). More than three times as many have access to cell phone service (93%), while about half (54%) live in zones with tarred or paved roads. Rural residents continue to be severely disadvantaged in most countries, with urban-rural gaps of more than 40 percentage points in the average availability of an electric grid, sewerage, and piped water infrastructure. This is despite the high priority assigned to infrastructure by both citizens and their governments in many African countries. Nevertheless, access to basic services remains highly variable across countries and regions.
Africa is considered as the continent with the world’s highest mortality rates, and it is the only continent where deaths from infectious disease still outnumber deaths from chronic disease. Indeed, Sub-Saharan Africans’ overall evaluation of their well-being has been reported to be lower than that of any other population in the world. The Low well-being is also largely attributed to low incomes in sub-Saharan Africa. Arguably, this is an indication of the interconnectedness of the various socio-economic rights and thus the need for an integrated approach to development.
The Government of Kenya’s Sector Plan for Science, Technology and Innovation 2013-2017 recognises that Science, Technology and Innovation (ST&I) play a pivotal role in the industrialization, sustainable development and growth of nations. Investments and integration of ST&I into social, economic and governance policies is expected to increase Kenya’s global competitiveness, create employment and increase productivity. This was developed in line with the recognition that the Kenya Vision 2030 and the Constitution explicitly place a premium on the generation and management of a knowledge-based economy and the need to raise productivity and efficiency.
While Kenya has made significant progress in the area of science, technology and innovation, it is worth pointing out that this is a sector that requires cooperation among countries especially if the same is to be used to promote and sustain cross-border trade. Also closely related to this is manufacturing and value addition. This will go a long way in enhancing national incomes as well as boosting agricultural production. Investing in people and technology transfer from developed states will boost Africa’s manufacturing industries. Value addition for agricultural produce will also boost Africa’s standing at the global platform as far as trade and commerce are concerned.
This is why Agenda 2063’s focus on promoting the growth and development of science, technology and innovation is a welcome move that requires goodwill and concerted efforts of all stakeholders. Both Agenda 2063 and Kenya’s Vision 2030 seek to promote environmental rule of law which is central to sustainable development, a concept that seeks to integrate environmental needs with the essential elements of the rule of law, and provides the basis for improving environmental governance. However, while the Constitution of Kenya 2010 and other post constitution statutes and policy documents recognise the centrality of sustainable development, Kenya still has a long way to go in achieving sustainable production and development practices.
Agenda 2063 seeks to promote environmentally sustainable climate and resilient economies and communities. Arguably, this will not be achieved unless individual states put in place national measures geared towards this. Individual efforts coupled with concerted efforts from all African governments will ensure that Africa achieves its targets under Agenda 2063 as well as United Nations Agenda 2030 on Sustainable Development. Sustainable agricultural production features in both AU Agenda 2063 and Kenya’s Agenda 2030.
If the African continent is to guarantee food and nutritional security for its people, then there must be cooperation amongst states in research and tackling infrastructure challenges that make it difficult to access and/or distribute food across countries and regions. Boosting agricultural production also requires land reforms across various states. There is need for supporting the agricultural sector through modern methods of production, guaranteeing farmers protection from foreign invasion of markets especially those outside Africa, good infrastructure, investing in value addition and enhancing national food storage and preservation facilities, amongst others.
Gender parity is a subject that is still relevant not only in Kenya but across many African societies. Investing in both men and women will go a long way in realisation of Africa’s development agenda. Putting in place empowerment measures such as fair labour practices and protection from all forms of violence is important. While having domestic laws on gender equality and equity is important, there is need for strong reporting mechanisms within the Agenda 2063 implementation framework, in order to ensure that no state is left behind as far as this issue is concerned. Some parts of Kenya and Africa in general still suffer violence and general insecurity. Some concerted efforts towards promoting peace and stability in the continent are still required as a basis for meaningful development.
Africa is a Continent that is rich in natural resources and cultural diversity amongst its many communities. However, it has lagged behind in development and protection of its riches both in terms of diverse communities and source of wealth for the rest of the world. Agenda 2063 promises to coordinate the various countries’ development agenda through outlining a development blueprint that should be used as a yardstick to ensure that the Continent moves forward as one. Kenya can work closely with other states to not only realize this Agenda but to also benefit from the same. Africa as a continent can certainly achieve the vision of prosperity. There is a lot for Kenya in this dream. Kenya can contribute and benefit from the realisation of Africa’s Agenda 2063.
*This article is an extract from the Article “Africa’s Agenda 2063: What is in it for 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.
Muigua, K., “Africa’s Agenda 2063: What is in it for Kenya?” Available at: http://kmco.co.ke/wp-content/uploads/2019/06/Africa%E2%80%99s-Agenda-2063-What-is-in-it-for-Kenya-Kariuki-Muigua-28th-June-2019.pdf (accessed on 21st May 2022).
Former KCB Company Secretary Sues Over 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.
Court of Appeal Upholds Eviction of Radcliffes from Karen Land
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.
Review: Journal of Conflict Management and Sustainable Development, Vol. 9, No. 1
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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John Ohaga SC Scoops Kenya and Africa Top Arbitrator Accolades
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Court of Appeal Upholds Eviction of Radcliffes from Karen Land
Review: Journal of Conflict Management and Sustainable Development, Vol. 9, No. 1
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