News & Analysis
Curriculum Vitae of Dr. Kariuki Muigua, PhD: African Arbitrator of the Year 2022
Dr. Kariuki Muigua, PhD, the winner of the African Arbitrator of the Year 2022 Award, is one of the most qualified and decorated Arbitrators in Africa being a Chartered Arbitrator (2015), Fellow of the Chartered Institute of Arbitrators (FCIArb), Accredited/Certified Mediator and Advocate of the High Court of Kenya of 32 Years. He is ranked among the Top Six (6) Dispute Resolution Experts (Arbitration) in Kenya by Chambers & Partners (Band 1). He has handled numerous complex commercial arbitrations and mediations having subject value of over Ksh. 300 Billion in the last 20 years of ADR practice.
In 2021, Dr. Kariuki Muigua was awarded the Inaugural CIArb (Kenya) Lifetime Achievement Award 2021 for his immense contribution to arbitration and ADR practice in Kenya and East Africa region. Dr. Muigua is a foremost ADR Scholar and Academic having written his PhD Thesis on Mediation. Dr. Kariuki Muigua served as the Chairperson of the Chartered Institute of Arbitrators (Kenya Branch) from 2012 to 2015 and is the Africa Trustee of the Chartered Institute of Arbitrators from 2019. He was also awarded the coveted ADR Practitioner of the Year Award 2021 by the Nairobi Law Society at the Nairobi Legal Awards and ADR Publisher of the Year 2021 by the CIArb (Kenya).
Dr. Muigua is a Member of the Nairobi Centre of International Arbitration Faculty, is an Accredited Tutor of the Chartered Institute of Arbitrators (Kenya Branch) and also teaches International Commercial Arbitration at the University of Nairobi both at undergraduate and postgraduate level and is the author of leading ADR Text Books including “Settling Disputes Through Arbitration in Kenya”, “Resolving Conflicts through Mediation in Kenya” and “Alternative Dispute Resolution and Access to Justice in Kenya. Dr Muigua is also the Editor in Chief of the Leading ADR Peer-Reviewed Journals in East Africa, namely, Alternative Dispute Resolution Journal (Official Journal of the CIArb Kenya) and the Journal of Conflict Management and Sustainable Development (JCMSD).
Relevant Education and Qualifications on Arbitration
- Chartered Arbitrator 2015.
- Accredited/Certified Professional Mediator (MTI) 2015.
- Fellow of the Chartered Institute of Arbitrators (FCIArb), 2012.
- University of Nairobi, Ph.D., 2011. Thesis titled “Resolving Environmental Conflicts in Kenya through Mediation”
- Module 4 Arbitration – October 2010.
- , 2005 specializing in Environmental Law and Natural Resource Conflicts/Dispute Resolution and studied advanced course on International Commercial Arbitration
- Member of the Chartered Institute of Arbitrators (MCIArb), 2002.
- Advocate of High Court of Kenya, 1989.
Work Highlights, Recognitions and Memberships on Arbitration
- ADR Practitioner of the Year in Kenya 2021.
- ADR Publication of the Year 2021
- CIArb (Kenya) Inaugural Lifetime Achievement Award 2021
- Regional Trustee for Africa, Chartered Institute of Arbitrators (CIArb) Board of Trustees.
- Member National Steering Committee for Formulation of the Alternative Dispute Resolution Policy (Government of Kenya), 2020
- Senior Lecturer, School of Law, University of Nairobi, International Commercial Arbitration;
- Senior Partner, Kariuki Muigua & Co. Advocates specializing in, among others, Alternative Dispute Resolution, Arbitration and Mediation.
- Tutor, Chartered Institute of Arbitrators-Kenya Teaching and researching Alternative Dispute Resolution Methods at all levels, namely: entry level, Associate level, Member level and fast-track to fellow level.
- Awardee, Chartered Institute of Arbitrators Chairman’s medal, with citation for exemplary service, December, 2015.
- Chartered Arbitrator of the Chartered Institute of Arbitrators
- Fellow of the Chartered Institute of Arbitrators (FCIArb)
- Branch Chairman of CIArb-Kenya from 2012 to 2015
- Council of the Chartered Institute of Arbitrators (CIArb) – Kenya chapter.
- Member and past chairperson of the sub-committee on Information Technology (IT), CIArb
- Member of the Legal Committee Chartered Institute of Arbitrators (CIArb) – Kenya chapter
- Member, Meditation Accreditation Committee Panel of Mediators Accredited for Commercial Mediation (The Judiciary, Republic of Kenya).
- Member of London Court of International Arbitration (LCIA) (2002)
- Member, Kigali International Arbitration Centre (KIAC) International Panel of arbitrators.
- Member, Nairobi Centre for International Arbitration (NCIA) Panel of International Arbitrators.
- Member, Nairobi Centre for International Arbitration (NCIA) Panel of Domestic Arbitrators.
- Member, Nairobi Centre for International Arbitration (NCIA) Panel of Domestic Mediators.
- Member of the National Environment Tribunal (Nominee of the Law Society of Kenya).
- Member of the Law Society of Kenya.
Key Consultancies and Collaborations in Arbitration and ADR
- Negotiated the partnership with Chartered Institute of Arbitrators UK on GPR 625 (International Commercial Arbitration) for University of Nairobi LLM students to achieve membership status without further tests, 2020 to 2023.
- Consultant for IDLO, Kenya Judiciary & NCIA, Development and Alignment of Legal & Policy Framework with Aim to Deepen ADR for Access to Justice and Commercial Disputes”- January 2018.
- Consultant for the Court of Justice of the Common Market for Eastern and Southern Africa (COMESA Court of Justice) to Review and Revise COMESA Court of Justice Arbitration Rules (2003) – January 2018.
- Consultant for the Commission for the Implementation of the Constitution (CIC), IDLO and the UNDP in preparing a “Report for Review of Policy, Legislation and Administrative Structures on Access to Justice: Existing Gaps and Proposed Reforms to Align with the Constitution”- 2015.
- Consultant by the KENYA LAND ALLIANCE in preparing a “Review and Analysis of its draft ADR guide and Training Manual to offer guidance in resolution of land disputes”- August, 2013.
Books and Book Chapters Published on Arbitration and ADR
- Muigua, K., Settling Disputes through Arbitration in Kenya, 4th Edition, Glenwood Publishers, Nairobi – 2022.
- Muigua, K., Alternative Dispute Resolution and Access to Justice in Kenya, Glenwood Publishers, Nairobi – 2015.
- Muigua, K., Resolving Conflicts through Mediation in Kenya, Glenwood Publishers, Nairobi – 2013.
- Muigua, K., Settling Disputes through Arbitration in Kenya, Glenwood Publishers, Nairobi – 2012.
- Muigua, K., Book Chapter: ‘Effectiveness of Arbitration Institutions in East Africa,’ in Onyema, E. (ed), The Transformation of Arbitration in Africa: The Role of Arbitral Institutions, (Kluwer Law International, The Netherlands, 2016).
- Muigua, K., Book Chapter: Chapter 24: ‘Dispute Resolution Mechanisms for Environmental Governance,’ in Prof. Patricia Kameri-Mbote and Dr. Robert Kibugi (eds), Environmental Governance in Kenya: Implementing the Constitutional Framework, – 2020).
Journal Articles Published in Arbitration and ADR
- Abwunza, Allan A., Titus K. Peter, and Kariuki Muigua, “Explaining the Efffectiveness of Construction Arbitration: An Organizational Justice Perspective,” Journal of Legal Affairs and Dispute Resolution in Engineering and Construction, Volume 13, Issue 3 (2021)
- Muigua, K., Managing Governance Conflicts Through Alternative Dispute Resolution in Kenya, Governance Journal, Volume 1, Issue 2, 2020, pp 91-106.
- Muigua, K., Arbitration Law and the Right of Appeal in Kenya, Alternative Dispute Resolution, Volume 9, No 2, (2021), pp. 21-43.
- Muigua, K., Looking Into the Future: Making Kenya a Preferred Seat for International Arbitration, Alternative Dispute Resolution, Volume 9, No 1, (2021), pp. 1-51.
- Muigua, K., Africa’s Role in the Reform of International Investment Law and the Investor State Dispute Settlement (ISDS) System, Journal of Conflict Management and Sustainable Development, Volume 5, No 1, (September, 2020).
- Muigua, K., ‘Promoting Sports Arbitration in Kenya,’ Chartered Institute of Arbitrators (Kenya), Alternative Dispute Resolution, Volume 8, No 1, (2020), pp. 1-30.
- Muigua, K., ‘Enhancing the Court Annexed Mediation Environment in Kanya,’ Chartered Institute of Arbitrators (Kenya), Alternative Dispute Resolution, Volume 8, No 2, (2020), pp. 20-40.
- Abwunza, Allan A., Titus K. Peter, and Kariuki Muigua, “Explaining Delays in Construction Arbitration: A Process-Control Model Approach,” Journal of Legal Affairs and Dispute Resolution in Engineering and Construction, Volume 12, Issue 2 (May 2020).
- Muigua, K., Enhancing the Court Annexed Mediation Environment in Kenya, Chartered Institute of Arbitrators (Kenya), Alternative Dispute Resolution, 9 (1) (July, 2020).
- Muigua, K., The Singapore Convention on International Settlement Agreements Resulting from Mediation: Challenges and Prospects for African States, Volume 4, No 3, (May, 2020).
- Abwunza, Allan A., Titus K. Peter, and Kariuki Muigua, “Effectiveness of Arbitration in Contractual Disputes: Tension between Procedural Efficiency and Award Quality,” Journal of Legal Affairs and Dispute Resolution in Engineering and Construction 11, No. 2 (2019): 04519003.
- Muigua, K. & Ombati, J., ‘Achieving expeditious Justice: Harnessing Technology for Cost Effective International Commercial Arbitral Proceedings,’ Chartered Institute of Arbitrators (Kenya), Alternative Dispute Resolution, 7(1):1-32, (April, 2019).
- Muigua, K., ‘Making Mediation Work for all: Understanding the Mediation Process,’ Chartered Institute of Arbitrators (Kenya), Alternative Dispute Resolution, 7(1):120-141, (April, 2019).
- Muigua, K., ‘Promoting International Commercial Arbitration in Africa,’ Chartered Institute of Arbitrators (Kenya), Alternative Dispute Resolution, Volume 5, No 2, (2017), pp. 1-27.
- Muigua, K., ‘Legitimising Alternative Dispute Resolution in Kenya: Towards a Policy and Legal Framework,’ Chartered Institute of Arbitrators (Kenya), Alternative Dispute Resolution, Volume 5, No 1, (2017), pp. 74-104.
- Muigua K., “The Lawyer as a Negotiator, Mediator and Peacemaker in Kenya,” Law Society of Kenya Journal, Vol. 12, No. 2, 2016, pp. 39-66.
- Muigua, K., ‘Constitutional Supremacy over Arbitration in Kenya,’ Chartered Institute of Arbitrators (Kenya), Alternative Dispute Resolution, Volume 4, No 1, (2016), pp. 100-131.
- Muigua, K., ‘Effective Management of Commercial Disputes: Opportunities for the Nairobi Centre for International Arbitration,’ Chartered Institute of Arbitrators (Kenya), Alternative Dispute Resolution, Vol. 4, No 1, (2016), pp. 155-180.
- Muigua, K., ‘Building Legal Bridges: Fostering Eastern Africa Integration through Commercial Arbitration,’ Chartered Institute of Arbitrators (Kenya), Alternative Dispute Resolution, Vol. 3, No 1, (2015), pp.45-87.
- Muigua, K., ‘Effective Justice for Kenyans: is ADR Really Alternative?’ The Law Society of Kenya Journal, Vol. II, 2015, No. 1, pp. 49-62.
- Muigua, K., ‘Role of the Court Under Arbitration Act 1995: Court intervention before, pending and after Arbitration in Kenya,’ Kenya Law Review Journal, 2008-2010.
Presentation, Papers and Seminars Made on Arbitration
- Muigua, K., Arbitration Law and the Right of Appeal in Kenya, A Paper presented at the Law Society of Kenya Continuing Professional Development Webinar on Arbitration held on 13th November 2020.
- Muigua, K., Adopting the Singapore Convention in Kenya: Insight and Analysis, Working Paper for the Singapore Convention Webinar Held on 19th August 2020.
- Muigua, K., Virtual Arbitration Amidst COVID-19: Efficacy and Checklist for Best Practices, A Discussion Paper for the Chartered Institute of Arbitrators Kenya Branch (CIArb-K) Webinar ADR Talk Series 8 held on 28thMay 2020.
- Muigua, K., Promoting Sports Arbitration in Africa, a discussion Paper for the Chartered Institute of Arbitrators (Kenya Branch) 2nd annual lecture on the theme ‘Promoting Sports Arbitration in Africa’ held on Thursday 28th November, 2019 in Nairobi, Kenya.
- Muigua, K., Negotiating Dispute Settlement terms in Bilateral Investment Treaties (BITS) and Economic Partnership Agreements (EPAs), Paper Presented at the Nairobi International Arbitration Conference, held at the Intercontinental Hotel, Nairobi-Kenya, on 4th – 6th December, 2016.
- Muigua, K., Reawakening Arbitral Institutions for Development of Arbitration; Arbitration Institutions in Africa Conference, 2015, Addis Ababa, Ethiopia. Theme: The Role of Arbitration Institutions in the Development of Arbitration in Africa.
- Muigua, K., Building Legal Bridges: Fostering Eastern Africa Integration through Commercial Arbitration, Paper presented, at the 3rd Annual East Africa International Arbitration Conference 2015 held on 9th and 10th April, 2015 at Hyatt Regency Hotel, Dar Es Salaam-Tanzania.
- Muigua, K., ADR: The Road to Justice in Kenya, Chartered Institute of Arbitrators-Kenya Branch International Arbitration Conference, Conference held on 7th & 8th August, 2014 at Sarova Whitesands Hotel, Mombasa, Kenya.
- East Africa International Arbitration Conference Muigua, K., Promoting International Commercial Arbitration in Africa, the East Africa International Arbitration Conference, held on 28-29 July 2014, at Fairmont the Norfolk, Nairobi.
- Muigua, K., Making East Africa a Hub for International Commercial Arbitration: A Critical Examination of the State of the Legal and Institutional Framework Governing Arbitration in Kenya, Kigali Arbitration Centre (KIAC), Arbitration workshop for EAC region 24th -25th May 2013.
- Muigua, K., Overview of Arbitration and Mediation in Kenya, Stakeholder’s Forum on Establishment of Alternative Dispute Resolution (ADR) Mechanisms for Labour Relations in Kenya, held at the Kenyatta International Conference Centre, Nairobi, on 4th – 6 th May, 2011.
Research and Scholarship Supervised on Arbitration
- Allan A. Abwunza, Developing A Framework for Effective Arbitration Of Contractual Disputes In The Construction Industry of Kenya,’ Jomo Kenyatta University of Agriculture & Technology. (Completed PhD Thesis)
- Sikuta Moses, The Implications of Public Policy Considerations in the Enforcement of International Arbitral Awards in Kenya (Ongoing PhD Thesis)
- Jimmy Winny Mwende, A Critique of Section 6 of the Arbitration Act’, University of Nairobi. 2014 (Completed LLM Thesis).
- Ajima Daisy Owuor, Making Kenya a Hub for Arbitration of International Financial Services Disputes’, University of Nairobi. 2014 (Completed LLM Thesis).
- Gad Gathu, A Critique of Kenyan Judiciary’s Capacity for Enforcement of International Commercial Arbitration Awards, University of Nairobi. 2015 (Completed LLM Thesis).
- Edel Njoki Michuki, Arbitration Practice and Access to Justice in Kenya, University of Nairobi, 2015 (Completed LLM Thesis).
- Kilonzo Kituku, Facilitating International Arbitration in Kenya’, University of Nairobi (Completed LLM Thesis).
- Anne Wanjiru Mwangi, A Critique of the Contribution of International Commercial Arbitration Toward the Realisation of the Right of Access to Justice in Kenya (Completed LLM Thesis).
- George Gilbert Otieno, A Critique of Arbitration Clauses/Agreement in Employment Contracts. (Completed LLM Thesis).
- James Ndungu Njuguna, Arbitration as a Tool for Management of Natural Resource and Community Land Conflicts in Kenya. (Completed LLM Thesis).
- Peter Mwangi Muriithi, The Place of International Arbitration in East Africa: A Case Study of the Effectiveness of the East African Court of Justice as an International Arbitral Tribunal (Completed LLM Thesis).
Dr. Kariuki Muigua, PhD is one of Africa’s foremost Arbitrators and ADR experts and has handled dozens of arbitration matters and disputes as a member of tribunals and panels and as counsel for parties. He is a leader in arbitration scholarship and edits several journals and periodicals in the area to promote research in dispute resolution and conflict management. As the African Regional Trustee of Chartered Institute of Arbitrators, he is at the forefront in promoting adoption of arbitration as the preferred mode of dispute resolution especially by young professionals and businesses. Recently, he sponsored Dr. Kariuki Muigua Annual ADR Essay Award to encourage university students to research, study and write on ADR and Arbitration in Africa.
News & Analysis
Brief History of the Permanent Court of Arbitration (PCA)
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”.
PCA Website: https://pca-cpa.org/en/about/introduction/history/ (accessed on 25th May 2023).
News & Analysis
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.
News & Analysis
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.
Brief History of the Permanent Court of Arbitration (PCA)
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