The African Arbitrator of the Year 2022 Dr. Kariuki Muigua, PhD has been ranked as the 4th Top Arbitrator in Kenya after Prof. Githu Muigai SC, Justice (Rtd) Jonathan Havelock and Njeri Kariuki. Dr. Kariuki Muigua the rankings of the Top 5 Arbitrators in Kenya 2022 and Top 30 Arbitrators in Kenya by The Lawyer Africa which listed the leading Chartered Arbitrators in Kenya. The ranking of Dr. Kariuki Muigua as the Top 4 Arbitrator in Kenya is a major achievement given that there are currently over 1056 Arbitrators in Kenya. The recognition also validates the listing of Dr. Kariuki Muigua, PhD by Chambers and Partners in Band 1 among the most elite arbitrators in Kenya.
Dr. Kariuki Muigua, Phd, C.Arb is a Chartered Arbitrator and the African Trustee of the Chartered Institute of Arbitrators and the African Arbitrator of the Year 2022. He is an advocate of 33 years standing and the Managing Partner of Kariuki Muigua & Co. Advocates. He is also the author of the Leading Textbooks on ADR, Mediation and Arbitration including the seminal Settling Disputes Through Arbitration in Kenya, now in 4th Edition. Dr. Kariuki Muigua is ranked at Band 1 by Chambers & Partners among the leading Arbitrators in Kenya noting that “He has been involved in several ground-breaking arbitrations,” “has an astute understanding of arbitration” and “is respected for litigation.”
Dr. Kariuki Muigua, PhD has been a Chartered Arbitrator since 2015, Fellow of the Chartered Institute of Arbitrators since 2012 and the Africa’s Trustee of the Chartered Arbitrators since 2019. He is one of Kenya’s foremost Arbitrator and ADR Practitioner as confirmed by the Inaugural Lifetime Achievement Award accorded to him by CIArb (Kenya) in 2021 and being named the Law Society of Kenya (Nairobi) ADR Practitioner of the Year 2021 at the Nairobi Legal Awards. The exploits of Dr. Kariuki Muigua have convinced The Lawyer Africa to call for his admission to the rank of Senior Counsel and promotion to the level of Professor of Environmental Law by the University of Nairobi. He is also the Founders and the Editor-in-Chief of the Official Journal of Arbitration in Kenya, the Alternative Dispute Resolution (ADR) Journal of the CIArb (Kenya Branch).
Dr. Muigua is ranked among the top 6 Arbitrators in Kenya (Band 1) by the prestigious Chambers & Partners in the year 2022. He has handled dozens of international and domestic arbitrations whose cumulative subject matter value is north of a quarter of a Billion US Dollars (over Ksh. 250 Billion) in the last decade alone. He is an avid Arbitration Law and ADR Scholar, writer and researcher and has supervised numerous LL.M and PhD Thesis in the area in the last decade. He also teaches International Commercial Arbitration at the University of Nairobi and is a tutor and examiner of the Chartered Institute of Arbitrators.
If any African Arbitrator deserved to be named the African Arbitrator of the Year 2022 at the 3rd African Arbitration Awards to be held on Friday, 17th June 2022 at Kigali, Rwanda, it was Dr. Kariuki Muigua, PhD for his efforts in advancing the practice of ADR and Arbitration in Africa as Africa’s Trustee of CIArb and also in his private capacity as a mentor to many across the continent. He is the patron of the Young Arbitrators Club of the University of Nairobi and supported the launch of the Award which bears his name to encourage upcoming arbitrators enhance their writing skills. He has been involved in every aspect of ADR and arbitration including practice and leaders and for that he deserves the recognition and to win the Africa Arbitration Awards.
In 2022, Dr. Kariuki Muigua, PhD commemorated 20 years as Arbitrator and ADR Practitioner. His journey in Arbitration and Alternative Dispute Resolution (ADR) started in 2002 when he took the Special member course leading to membership of the Chartered Institute of Arbitrators (MCIArb). In the same year, he also became a member of the London Court of International Arbitration (LCIA) (2002). Three years later, in 2005, Dr. Kariuki Muigua graduated with Master of Laws (LL.M) from the University of Nairobi and his Thesis focused on resolving Natural Resource Conflicts through mediation.
In October 2010, Dr. Muigua completed Arbitration Module 4 Course leading to Fellowship to the Chartered Institute of Arbitrators (FCIArb). He also undertook the Certified Professional in Managing Workplace Conflict from the Mediation Training Institute (International). The following year, on 2nd December 2011, he successfully defended his PhD Thesis titled “Resolving Environmental Conflicts in Kenya through Mediation” at the University of Nairobi.
In 2012, Dr. Muigua graduated with Diploma in Arbitration from the Chartered Institute of Arbitrators (UK). In same year, Dr. Muigua was elected Chairman of the Chartered Institute of Arbitrators (Kenya branch) where he served for the next 3 years up to 2015. His tenure as CIArb (Kenya Branch) Chair was pivotal as it marked the constitutional transition period which included efforts to spearhead the mainstreaming of ADR methods into the justice system as envisaged under Article 159 of the Constitution culminating in launch of the Court-Annexed Mediation Pilot in 2015.
In September 2012, Dr. Muigua served as a Consultant of Commission for the Implementation of the Constitution and IDLO in preparing a report on the “Framework for the Consolidation and Harmonization of National Policies, Strategies and Legislative Instruments Relating to Access to Justice in Kenya.” In August 2013, he was engaged as a Consultant by the Kenya Land Alliance in preparing a “Review and Analysis of its Draft ADR guide and Training Manual with a view to improve on its contents and structure to match the intended use of offering guidance in resolution of land disputes.”
In 2013, he authored and published the first editions of the two of the leading books on ADR in Kenya: Resolving Conflicts through Mediation in Kenya (2013) and Settling Disputes through Arbitration in Kenya. Settling Disputes through Arbitration is now in its 4th Edition (published in February 2022) and Dr. Muigua has made it available free for download as part of Social Responsibility and mentorship to upcoming Arbitrators.
In 2013, Dr. Muigua also launched the Alternative Dispute Resolution (ADR) Journal, the official Journal of the Chartered Institute of Arbitrators (Kenya Branch) Journal, now in its 10th Volume. He continues to serve as the Editor-in-Chief of the acclaimed journal which was awarded the Africa’s Arbitration Publication of the Year 2020 at the Africa Arbitration Awards for its authoritative publishing of ADR research and scholarship from across Africa.
In January 2015, Dr. Muigua was conferred the rank of Chartered Arbitrator, the highest status of an Arbitrator. In the same year, he was also admitted as an Accredited Mediator by the Mediation Training Institute (International). In December 2015, Dr. Muigua was awarded the Chartered Institute of Arbitrators Chairman’s medal with a citation for exemplary service in December, 2015. He also authored Alternative Dispute Resolution and Access to Justice in Kenya (2015). In 2015, Dr. Muigua was also engaged as a consultant by the Commission for the Implementation of the Constitution in preparing a “Report for the Institutionalization of Traditional Dispute Resolution Mechanisms (TDRMs) and other Community Justice Systems.
In 2017, Dr. Muigua launched the Journal of Conflict Management and Sustainable Development, now in its 8th Volume. The journal has in the last 5 years earned its place as the leading peer-reviewed and most cited and authoritative publications in the fields of Conflict Management and Sustainable Development. Dr. Kariuki Muigua still leads the editorial board of the Journal as the Publisher and Editor in Chief. In January 2018, he was engaged as a consultant by the Court of Justice of the Common Market for Eastern and Southern Africa (COMESA Court of Justice) in the Consultancy to Review and Revise COMESA Court of Justice Arbitration Rules (2003).
In 2019, he was voted unopposed as the CIArb Regional Trustee for Africa where he represents Africa at the Chartered Institute of Arbitrators Board of Trustees which is responsible for all the monies as well as the strategic direction of the Institute. In 2020, he was appointed by the Attorney General as a member of the National Steering Committee for Formulation of the Alternative Dispute Resolution Policy, 2020 representing the Academia.
In 2021, he scooped the three top ADR Award in Kenya. The first award was the inaugural CIArb (Kenya) Lifetime Achievement Award, the highest honour ever awarded by the Institution. Dr. Muigua was also voted by his peers in the legal profession as the Law Society of Kenya ADR Practitioner of the Year Award. He also won the ADR Publisher of the Year Award by the CIArb (Kenya) for his numerous publications and research in ADR and arbitration.
Importantly, Dr. Kariuki Muigua has been consistently ranked among the top 10 arbitrators in Kenya for the last five (5) years in a row by the prestigious Chambers & Partners Lawyers Directory. In 2022, Dr. Kariuki Muigua was ranked among the Top 5 Arbitrators (Band 1) by the Chambers Global Guide which described him as having “an astute understanding of arbitration and mediation” and being at the forefront of ADR in Kenya.
Chambers and Partners describes Dr. Muigua as “a member of the Chartered Institute of Arbitrators and well known in this space” who is ‘a highly respected arbitrator and mediator, “publishes a lot of articles on alternative dispute resolution and arbitration” and “has been involved in several ground-breaking arbitrations.” It adds that Dr. Muigua is “respected for litigation that touches on commercial, constitutional and environmental law” and as a leading author who “has written a number of books on arbitration referred to by courts and judges.”
Clearly, Dr. Kariuki Muigua is a leading ADR Practitioner in Kenya and across Africa and deserves to be the African Arbitrator of the Year 2022 for his contribution in consistently and excellently practicing ADR as Arbitrator, Mediator, Scholar, Publisher, Leader and Consultant. Dr. Kariuki Muigua continues to volunteer and serve as the Tutor and Assessor at the Chartered Institute of Arbitrators-Kenya. He is also a prolific writer and has published over hundred articles and papers on Arbitration and Alternative Dispute Resolution.
Dr. Muigua also serves in the Branch Committee of the Chartered Institute of Arbitrators (Kenya). Previously, he served as a Member and Past Chairperson of the Sub-Committee on Information Technology (IT) and Member of the Legal Committee of the Institute. He is a Member of Kigali International Arbitration Centre (KIAC) International Panel of arbitrators and Nairobi Centre for International Arbitration (NCIA) Panel of International Arbitrators, Panel of Domestic Arbitrators and Panel of Domestic Mediators.
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.
Former KCB Company Secretary Sues Over Unlawful Dismissal
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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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