Connect with us

News & Analysis

How Dr. Kariuki Muigua Won Four (4) Top ADR Awards in Seven (7) Months

Published

on

The award of African Arbitrator of the Year 2022 to Dr. Kariuki Muigua, PhD was a climax of what has been a phenomenal seven (7) months that have seen win the highest possible award for Arbitrator in Kenya, earn the highest recognition of his peers in the legal profession by being awarded the ADR Practitioner of the Year, reach the top ranking of arbitrators in Kenya by Chambers & Partners (Band 1) and achieve notoriety as the leading publisher in arbitration. Today, he ranks among the top arbitrators in Kenya, East Africa, Africa and the World.

Indeed, this is a phenomenal year for Dr. Kariuki Muigua as a leading Alternative Dispute Resolution in Kenya and Africa which has seen him scoop the top ADR Award in Africa and three (3) most prestigious ADR Awards in Kenya. The crowning moment for Dr. Muigua’s twenty (20) Year career as ADR Practitioner was winning the third African Arbitrator of the Year. He was also honorored to be named the winner of the inaugural Chartered Institute of Arbitrators (Kenya Branch) Lifetime Achievement Award, the Law Society of Kenya ADR Practitioner of the Year Award and the ADR Publisher of the Year Award.

As the third winner of the African Arbitrator Award, it ranks Dr. Kariuki Muigua among the top 3 arbitrators in Africa alongside the other two past winners who are experienced arbitrators in their right. Dr. Kariuki Muigua was also the first recipient of the Lifetime Achievement Award, which is the highest honour possible given to any of the Institute’s members. The Institute explained the award thus: “The Lifetime Achievement award is received once in a lifetime and is reserved for those whose contribution seems bigger than life itself. … This award is reserved for the chosen few, those who have done all in their power and at their disposal in promoting ADR from all facets.”

In justifying why its members voted Dr. Kariuki Muigua as the first ever recipient of the Lifetime Achievement Award, CIArb (Kenya) noted “Dr. Kariuki Muigua, Ph.D has become a household name when it comes to ADR. Almost everyone in the ADR fraternity has had an encounter with him. He either taught you, inspired you to write Articles to the Journal, mentored you, assessed you or in the very least, you have read one of his numerous books.”

CIArb (Kenya) added “As the CIArb Africa trustee he advances the agenda of Africa to the main CIArb in the UK ensuring that we too have a say on matters policy. As a past chairman of the Branch, he opened up the Institute to members of the public, to students within our Universities where he even personally sponsored some to take up ADR courses… He has also influenced research within ADR by ensuring that the CIArb Award winning journal, Alternative Dispute Resolution Journal, is published on time and circulated to our member and stakeholders free of charge.”

In addition to being voted by fellow Arbitrators as the Lifetime Achievement Award Winner, Dr. Kariuki Muigua was also feted by his colleagues and peers in the legal profession as the Law Society of Kenya ADR Practitioner of the Year 2021/22 in the Nairobi Legal Awards. This award is given to the Advocate of the High Court of Kenya who has distinguished himself as an ADR Practitioner in Kenya and is a confirmation that one is the top ADR Practitioner in Kenya.

In addition, Dr. Muigua was awarded the ADR Publisher of the Year Award by CIArb (Kenya) for his noted efforts in advancing research, scholarship and publishing on ADR in Africa. He is the author of the leading practice guides on Mediation and Arbitration in Kenya,  Resolving Conflicts through Mediation in Kenya (2013) and Settling Disputes through Arbitration in Kenya, (in 4th  Edition (2022) and available free for download. Dr. Muigua is also the Editor in Chief of the Journal of Conflict Management and Sustainable Development (JCMSD) and the Official CIArb (Kenya) Journal.

Dr. Kariuki Muigua is a Chartered Arbitrator (C.Arb), Fellow of the Chartered Institute of Arbitrators and Accredited Mediator. He is currently the Africa Trustee of the Chartered Institute of Arbitrators. Dr. Muigua is an Advocate of the High Court of Kenya of over 30 years standing at Kariuki Muigua & Co. Advocates, is a leading commercial law firm in Kenya that specializes in environmental law and natural resources research and practice, ADR, constitutional law and commercial law litigation.

News & Analysis

The Roles of the Three Parts of the Permanent Court of Arbitration

Published

on

By

H.E. Amb. Marcin Czepelak, the Fourteenth Secretary-General of the Permanent Court of Arbitration (PCA)

Continue Reading

News & Analysis

Brief History of the Permanent Court of Arbitration (PCA)

Published

on

By

By Dr. Kariuki Muigua, PhD, C.Arb, Current Member of Permanent Court of Arbitration (PCA) Representing the Republic of Kenya.

The Permanent Court of Arbitration (PCA) is a 124 Years Old Intergovernmental Organization currently with 122 contracting states. It was established at the turn of 20th Century during the first Hague Peace Conference held between 18th May and 29th July 1899. The conference was an initiative of then Russian Czar Nicholas II to discuss peace and disarmament and specifically with the object of “seeking the most effective means of ensuring to all peoples the benefits of a real and lasting peace, and, above all, of limiting the progressive development of existing armaments.” The culmination of the conference was the adoption of a Convention on the Pacific Settlement of International Disputes, which dealt not only with arbitration but also with other methods of pacific settlement, such as good offices and mediation.

The aim of the conference was to “strengthen systems of international dispute resolution” especially international arbitration which in the last century had proven effective for the purpose with number of successful international arbitrations being concluded among Nations. The Alabama arbitration of 1871-1872 between the United Kingdom (UK) and the United States (US) under the Treaty of Washington of 1871 culminating in the arbitral tribunal’s award that the UK pay the US compensation for breach of neutrality during American Civil War which it did had demonstrated the effectiveness of arbitration in settling of international disputes and piqued interest of many practitioners in it as a mode of dispute resolution during the latter years of the nineteenth century.

The Institut de Droit International adopted a code of procedure for arbitration in 1875 to answer the need for a general law of arbitration governing for countries and parties wishing to have recourse to international arbitration. The growth of arbitration as a mode of international dispute resolution formed the background of the 1899 conference and informed its most enduring achievement, namely, the establishment of the PCA as the first global mechanism for the settlement of disputes between states. Article 16 of the 1899 Convention recognized that “in questions of a legal nature, and especially in the interpretation or application of International Conventions” arbitration is the “most effective, and at the same time the most equitable, means of settling disputes which diplomacy has failed to settle.”

In turn, the 1899 Convention provided for the creation of permanent machinery to enable the setting up of arbitral tribunals as necessary and to facilitate their work under the auspices of the institution it named as the Permanent Court of Arbitration (PCA). In particular, Article 20 of the 1899 Convention stated that “[w]ith the object of facilitating an immediate recourse to arbitration for international differences which it has not been possible to settle by diplomacy, the signatory Powers undertake to organize a Permanent Court of Arbitration, accessible at all times and operating, unless otherwise stipulated by the parties, in accordance with the rules of procedure inserted in the present Convention.” In effect, the Convention set up a permanent system of international arbitration and institutionalized the law and practice of arbitration in a definite and acceptable way.

As a result, the Permanent Court of Arbitration (PCA) was established in 1900 and began operating in 1902. The PCA as established consisted of a panel of jurists designated by each country acceding to the Convention with each country being entitled to designate up to four from among whom the members of each arbitral tribunal might be chosen. In addition, the Convention created a permanent Bureau, located in The Hague, with functions similar to those of a court registry or secretariat. The 1899 Convention also laid down a set of rules of procedure to govern the conduct of arbitrations under the PCA framework.

The second Hague Peace Conference in 1907 saw a revision of the 1899 Convention and improvement of the rules governing arbitral proceedings. Today, the PCA has developed into a modern, multi-faceted arbitral institution perfectly situated to meet the evolving dispute resolution needs of the international community. The Permanent Court of Arbitration has also diversified its service offering alongside those contemplated by the Conventions. For instance, today the International Bureau of the Permanent Court of Arbitration serves as a registry in important international arbitrations. In 1993, the Permanent Court of Arbitration adopted new “Optional Rules for Arbitrating Disputes between Two Parties of Which Only One Is a State” and, in 2001, “Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment”.

Reference

PCA Website: https://pca-cpa.org/en/about/introduction/history/ (accessed on 25th May 2023).

Continue Reading

News & Analysis

Former KCB Company Secretary Sues Over Unlawful Dismissal

Published

on

By

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.

Continue Reading

Trending