News & Analysis

International Legal Instruments Relating to Gender Equality in Kenya

Published

2 years ago

September 16, 2023

Admin

By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Sustainable Development Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), The African Arbitrator of the Year 2022, Kenya’s ADR Practitioner of the Year 2021, CIArb (Kenya) Lifetime Achievement Award 2021 and ADR Publisher of the Year 2021 and Author of the Kenya’s First ESG Book: Embracing Environmental Social and Governance (ESG) tenets for Sustainable Development” (Glenwood, Nairobi, July 2023).

Article 2(5) and (6) of the Constitution of Kenya 2010 provides that ‘the general rules of international law shall form part of the law of Kenya’ and that ‘any treaty or convention ratified by Kenya shall form part of the law of Kenya under this Constitution’ respectively. In Re The Matter of Zipporah Wambui Mathara [2010] eKLR the High Court held that by virtue of the provisions of Section 2 (6) of the Constitution of Kenya 2010, International Treaties, and Conventions that Kenya has ratified, were imported as part of the sources of the Kenyan Law and thus the provisions of the International Covenant on Civil and Political Rights (ICCPR) which Kenya ratified on 1st May 1972 were part of the Kenyan law.

The court went on to hold that the provisions of the ICCPR superseded those contained in the Banking Act. It is in line with the country’s international obligations on human rights and gender issues that Article 59 (2) (g) of the Constitution of Kenya provides that one of the functions of the Kenya National Human Rights and Equality Commission is to act as the principal organ of the State in ensuring compliance with obligations under treaties and conventions relating to human rights. It is however noteworthy that the National Gender and Equality Commission Act, 2011 has since established the National Gender and Equality Commission as the successor in title to the Kenya National Human Rights and Equality Commission established by Article 59 of the Constitution, pursuant to clauses (4) and (5) of that Article. Its functions however remain the same.

It is in line with the Commission’s mandate on international treaties and conventions that the Sessional Paper No. 02 of 2019 on National Policy on Gender and Development outlines the national agenda for gender equality and how Kenya intends to realize these ideals; details the overarching principles, which will be adopted and integrated into the National and County Government sectoral policies, practices and programmes and by all state and non-state actors; and it specifically takes cognizance of, inter alia: international and regional treaties on gender equality that Kenya has ratified such as the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) and the Maputo Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa.

Universal Declaration of Human Rights

The Universal Declaration of Human Rights guarantees that all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. It also provides that each individual is entitled to enjoy their rights and freedoms ‘…without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’. Article 7 therein also guarantees that ‘all persons are equal before the law and are entitled without any discrimination to equal protection of the law’.

Convention on the Elimination of All Forms of Discrimination against Women

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) defines the term “discrimination against women” to mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. CEDAW also provides that States Parties should condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake: to embody the principle of the equality of men and women in their national constitutions or other appropriate legislation.

CEDAW also obligates States Parties to take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men. CEDAW also provides that States Parties should take all appropriate measures: to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.

CEDAW also provides that States Parties should take all appropriate measures to eliminate discrimination against women in rural areas in order to ensure, on a basis of equality of men and women, that they participate in and benefit from rural development. Thus, the CEDAW covers civil rights, the legal status of women, the dimension of human reproduction and the impact of cultural factors on gender relations. Unlike other legal instruments, it acknowledges that different factors affect the relationships and interactions between men and women and thus outlines some obligations for State Parties to address all these factors.

International Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights (ICCPR) guarantees that ‘all peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development’. ICCPR also provides that each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

In addition, ICCPR provides that the States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant. Article 26 of the ICCPR further provides that ‘all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’.

Nairobi Forward looking Strategies for the Advancement of Women

The Nairobi Forward looking Strategies for the Advancement of Women captured the concern that the resources available to the programme on the advancement of women of the Secretariat were insufficient to ensure adequate support to the Committee on the Elimination of Discrimination against Women and effective implementation of other aspects of the programme, especially the preparations for the Fourth World Conference on Women, held in 1995.

The delegation that called again upon Member States to give priority to policies and programmes relating to the subtheme “Employment, health and education”, in particular to literacy, for the empowerment of women, especially those in the rural areas, to meet their own needs through self-reliance and the mobilization of indigenous resources, as well as to issues relating to the role of women in economic and political decision-making, population, the environment and information. The delegates also emphasized, in the framework of the Forward-looking Strategies, the importance of the total integration of women in the development process, bearing in mind the specific and urgent needs of the developing countries, and calls upon Member States to establish specific targets at each level in order to increase the participation of women in professional, management and decision-making positions in their countries.

Fourth World Conference on Women, Beijing Declaration and Platform for Action

The Fourth World Conference on Women met in Beijing, China, from 4 to 15 September 1995 where delegates discussed and adopted the Beijing Declaration and Platform for Action. The objective of the Beijing conference was to review the achievement of the goals of equality, development and peace, as outlined in the Nairobi Forward Looking Strategies for the Advancement of Women to the Year 2000 in 1985, and to establish a strategy for removing the remaining obstacles to the achievement of these goals. The Declaration recognized that the status of women had advanced but that inequalities and obstacles remained. It reaffirmed commitments to: equal rights in a number of existing agreements; ensuring full implementation of human rights of women and the girl child; and empowerment and advancement of women, including the right to freedom of thought, conscience, religion and belief.

Delegates also stated their conviction that: women’s empowerment and full participation are fundamental to equality, development and peace; equal rights and responsibilities are critical to families; women’s involvement is required to eradicate poverty; peace is linked to the advancement of women; and gender-sensitive policies are essential to foster women’s empowerment and advancement. Governments also affirmed their determination to: intensify efforts to achieve goals from the Nairobi strategies; ensure the full enjoyment by women and the girl child of human rights; eliminate discrimination and remove obstacles to equality; encourage men to participate in actions towards equality; promote women’s economic independence; promote sustainable development and education; prevent and eliminate violence against women and girls; ensure full participation; and ensure equal access to economic resources.

United Nations Declaration on the Elimination of Violence against Women

The United Nations Declaration on the Elimination of Violence against Women (DEVAW) provides that women are entitled to the equal enjoyment and protection of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. These rights include, inter alia: the right to life; the right to equality; the right to liberty and security of person; the right to equal protection under the law; the right to be free from all forms of discrimination; the right to the highest standard attainable of physical and mental health; the right to just and favourable conditions of work; the right not to be subjected to torture, or other cruel, inhuman or degrading treatment or punishment. DEVAW also obligates States to condemn violence against women and should not invoke any custom, tradition or religious consideration to avoid their obligations with respect to its elimination.

*This is article is an extract from an article “Actualizing the National Policy on Gender and Development in Kenya,” by Dr. Kariuki Muigua, PhD, Senior Advocate of Kenya, Chartered Arbitrator, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Lifetime Achievement Award 2021 (CIArb Kenya), African Arbitrator of the Year 2022, Africa ADR Practitioner of the Year 2022, Member of Permanent Court of Arbitration nominated by Republic of Kenya and Member of National Environment Tribunal (NET). 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 Managing Partner of Kariuki Muigua & Co. Advocates and Africa Trustee Emeritus of the Chartered Institute of Arbitrators 2019-2023. Dr. Muigua is recognized among the top 5 leading lawyers and dispute resolution experts in Band 1 in Kenya by the Chambers Global Guide 2022 and was listed in the Inaugural THE LAWYER AFRICA Litigation Hall of Fame 2023 as one of the Top 50 Most Distinguished Litigation Lawyers in Kenya.

References

David Njoroge Macharia v Republic [2011] eKLR, Criminal Appeal 497 of 2007.

Doran, P. and Others, “Summary of the Fourth World Conference on Women: 4-15 September 1995.” Earth Negotiations Bulletin 14, no. 21 (1995): 1 < https://enb.iisd.org/download/pdf/enb1421e.pdf> (Accessed 13 October 2020).

National Gender and Equality Commission Act, No.15 of 2011, Laws of Kenya.

Organization for Economic Co-operation and Development, “The Implications Of The Fourth World Conference On Women for Bilateral Development Co-Operation: Report From The DAC Expert Group On Women In Development Seminar, Held In Paris On 25-26 January 1996, Working Party on Gender Equality, DCD/DAC/WID(99)4, Available at: http://www.oecd.org/officialdocuments/publicdisplay documentpdf/?cote=DCD/DAC/WID(99)4&docLanguage=En > Accessed 13 October 2020.

Orinde, H., ‘Survey Reveals How Kenyans Are Ignorant of Their Human Rights’ (The Standard) accessed 14 October 2020.

Samuel Kamau Macharia & Another vs Kenya Commercial Bank Limited & 2 Others Sup. Ct. Application No. 2 of 2011; [2012] eKLR.

Treaty-Making and Ratification Act, No. 45 of 2012, Laws of Kenya.

UN General Assembly, Declaration on the Elimination of Violence against Women, 20 December 1993, A/RES/48/104.

UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III). 15 Universal Declaration of Human Rights, Article 1.

UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18 December 1979, United Nations, Treaty Series, vol. 1249, p. 13.

UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p. 171.

UN General Assembly, Implementation of the Nairobi Forward-looking Strategies for the Advancement of Women: resolution / adopted by the General Assembly, 16 December 1991, A/RES/46/98.

United Nations, Beijing Declaration and Platform of Action, adopted at the Fourth World Conference on Women, A/CONF.177/20 and A/CONF.177/20/Add.1 Date of adoption: 15 September 1995.

United Nations. Gender Mainstreaming an Overview. Office of the Special Adviser on Gender Issues, 2002 < https://www.un.org/womenwatch/osagi/pdf/e65237.pdf> Accessed 9 October 2020.

UN General Assembly, Transforming our world: the 2030 Agenda for Sustainable Development, 21 October 2015, A/RES/70/1. 9 ‘Sustainable Development Goal 5: Gender Equality’ (UN Women) accessed 15 October 2020.

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News & Analysis

Brief Overview of Kenyan Bankruptcy Law

Published

1 month ago

February 20, 2025

Kiragu Wathuta & Company Advocates

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

Who can apply for a bankruptcy order?

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

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

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

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

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

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

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

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

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

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

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

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

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

What are the consequences of a Bankruptcy Order?

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

Kiragu Wathuta & Company Advocates

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

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

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

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

News & Analysis

What is Carbon Markets?

Published

9 months ago

July 8, 2024

MMA Advocates LLP

Written by Faith Nyambura Kabora, Advocate.

Carbon markets are a mechanism designed to reduce greenhouse gas emissions which are essentially gases that trap heat in the atmosphere and contribute to the negative impacts of climate change such as prolonged drought and rising of sea levels.

Carbon markets operate on the principle of putting a price on carbon emissions to create commercial/economic incentives for public and private entities to reduce their carbon footprint and invest in cleaner, sustainable practices.

Ideally, by putting a price on carbon, the carbon markets encourage sustainable environmental practices and help counties meet their emission reduction targets under international treaties, like the Paris Agreement, which Kenya is a signatory to. For a broader understanding, here is how a carbon market works;

A Government establishes a limit on the total amount of greenhouse gas emission/pollution is allowed within its geographical limits;
A grant, say permissions are created and distributed to eligible participants. This allowance represents the right to emit a certain amount of greenhouse gas;
The participants can then buy and sell the allowances. Ideally, those who reduce their emissions more efficiently sell their surplus allowance to those who find it more challenging to reduce the emissions. If a company pollutes a lot, they need to buy more permissions, and if they do not pollute as much, they can sell their extra permissions.
Entities are required to hold enough allowances to cover their actual emissions. If they exceed allocated allowances, they face penalties or, as expounded above, they buy additional allowances. This is the part where compliance becomes mandatory for all the key players.
The price of the allowances fluctuates based on supply and demands and reflects the cost of emitting greenhouse gases. It is essentially like paying for pollution.

A carbon market plays a pivotal role in advancing climate action and promoting sustainable practices by incentivizing companies to reconsider their pollution practices, which can result in financial consequences as pollution becomes a costly endeavor. In Kenya, the introduction of a Carbon Market is imperative as the world confronts the dire consequences of climate change. Furthermore, it offers a commercial opportunity for investors considering the growing demand for environmentally friendly and carbon neutral products and services.

As mentioned above, the Paris Agreement is one of the most important international treaties dedicated strengthen global response to the negative impact of climate change. Ultimately, the Agreement’s goal is to motivate countries to limit global emissions and more importantly, to hold them accountable for their actions around reducing their carbon footprints.

Kenya as a signatory to the Paris Agreement has made significant contributions towards fulfilling the obligations under the Paris Agreement of limiting global temperature. The Climate Change (Amendment) Act 2023, nudges Kenya towards the realization of Article 6 of the Paris Agreement by introducing provisions and regulation of and participation in carbon markets.

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As one of the top law firms in Nairobi, MMA Advocates is renowned for its proactive strategy and innovative legal lawyer advice. Our firm is committed to delivering strategic assistance that not only tackles current difficulties but also equips clients for future legal trends and advancements. As top lawyers in Nairobi Kenya, we take great satisfaction in our ability to combine in-depth legal knowledge with creative problem-solving. We keep a close eye on business trends and legal advancements to deliver timely guidance that enables our clients to make wise choices.

Our main goal as MMA Advocates is to establish long-lasting partnerships based on integrity, decency, and reliability. Since every client’s circumstance is unique, our best advocates in Kenya offer timely service and individualized attention at every stage of our collaboration. We make sure our clients are informed and empowered throughout their legal journey because we value openness and transparency in communication. In every case we take on, we are deeply committed to obtaining positive results and client satisfaction. This is just one aspect of our unwavering commitment to quality.

Whether you are a startup negotiating regulatory obstacles, an established corporation expanding, or a private citizen seeking legal assistance on personal problems, our Best Corporate Lawyers in Kenya are dedicated to becoming your legal partner. Our expertise include Commercial Litigation, Real Estate & Development, Fintech, Public Procurement (Public Private Partnerships), Project Finance, Public Law Litigation, Legal Audits & Compliance Advisory and Crisis Management.

We hope to arm you with the legal know-how and strategies needed to achieve your objectives. Our team enjoys taking on challenging legal matters with creativity and strategic understanding, protecting your rights and effectively achieving your goals. With a thorough comprehension of both regional laws and global norms, we are prepared to confidently and competently lead you through the complexities of corporate law.

In the intensely competitive legal arena, our tailored legal and strategic solutions distinguish us. We value depth over breadth, guaranteeing our clients our full dedication and unparalleled efficiency. Where many spread themselves wide, we narrow our focus to a select few of the most challenging cases. We tread the path less traveled.

To find out more about how MMA Advocates in Nairobi Kenya can help you with your legal issues, get in touch with us. With our team of committed professionals and our standing as one of the top law firms in Nairobi, we are well-positioned to offer outcomes that surpass expectations and guarantee your success in a legal environment that is always changing.

News & Analysis

Review: Alternative Dispute Resolution (ADR) Journal, Volume 12(3), 2024

Published

11 months ago

April 28, 2024

Kariuki Muigua & Company

The Alternative Dispute Resolution (ADR) Journal, Volume. 12, No.3, 2024 covers pertinent and emerging issues across all ADR mechanisms. This volume exposes our readers to a variety of salient topics and concerns in ADR including Building Peace in Africa, Public Policy as a Ground of Setting-Aside an Arbitral Award, Ethics, Integrity and Best Practice in Mediation, Accessing Justice in Kenya, Sports Arbitration, ESG Arbitration, Arbitration of Investor-State Dispute in Kenya, Article 159(2) of the Constitution of Kenya 2010 and issuance of interim measures by Arbitral Tribunals. The ADR Journal is a publication of the Chartered Institute of Arbitrators, Kenya Branch. It provides a platform for scholarly debate and in-depth investigations into both theoretical and practical questions in Alternative Dispute Resolution.

The journal is edited by Professor of Law at the University of Nairobi, Faculty of Law Hon Prof. Kariuki Muigua, a distinguished law scholar, an accomplished mediator and arbitrator with a Ph.D. in law from the University of Nairobi and widespread training and experience in both international and national commercial arbitration and mediation. Prof. Muigua is a Fellow of Chartered Institute of Arbitrators (CIArb)- Kenya chapter and also a Chartered Arbitrator. He is a member of the Permanent Court of Arbitration, The Hague. He also serves as a member of the National Environment Tribunal. He has served as the Chartered Institute of Arbitrator’s (CIArb- UK) Regional Trustee for Africa from 2019 -2022.

In the paper “Building Peace in Africa through Alternative Dispute Resolution” Hon. Prof. Kariuki Muigua critically discusses the role of Alternative Dispute Resolution (ADR) mechanisms in peace building in Africa. The paper argues that ADR mechanisms can play a fundamental role in building peace in Africa. The paper further posits that ADR mechanisms are able to enhance sustainable peace in Africa due to their focus on reconciliation and restorative justice. It proposes solutions towards building peace in Africa through ADR.

In “the Emergence of the International Commercial Court: A Threat to Arbitration of Investor-State Dispute in Kenya” Marion Injendi Wasike and Dr. Kenneth W. Mutuma argue that the proliferation of international commercial courts, including their introduction in Kenya, necessitates a thorough analysis of their implications on arbitration’s role in investor-state disputes. By juxtaposing these emerging judicial entities against traditional arbitration paradigms, the discussion aims to unravel the complexities and potential shifts in dispute resolution preferences, highlighting the balance between innovation in legal adjudication and the sustenance of arbitration’s revered position in the international legal order.

Kamau Karori SC, MBS in “Striking a Balance: A Delicate Dance Between Sanctity and Scrutiny” notes that the continuing debate —between upholding the inviolability of arbitral awards and judicial intervention in cases of egregious injustice points to the need for delicate balancing between non-interference and the need to correct unmistakably unjust awards. The urgency of this discourse is informed by the need to prevent consumers or potential consumers of arbitration services opting to exclude arbitration clauses due to perceived deficiencies. The article seeks to navigate the genesis of the debate, delicately dissect the different perspectives, and draw comparisons with global practices.

The article “Reforming Kenya’s Law on Probation and Aftercare Services to Promote Alternative Dispute Resolution” by Michael Sang engages in a comprehensive exploration of Kenya’s Probation of Offenders Act within the context of the growing role of Alternative Dispute Resolution (ADR) principles in the nation’s criminal justice system. Drawing inspiration from international legal instruments such as “The Beijing Rules,” “Bangkok Rules,” and “Tokyo Rules,” the study evaluates the Act’s provisions, strengths, and limitations. It concludes with a call for thoughtful reforms that align Kenya’s criminal justice system with international standards, emphasizing a balanced and compassionate approach to justice.

The “Upholding Ethics, Integrity and Best Practice in Mediation” by Hon. Prof. Kariuki Muigua, OGW critically discusses the need for standardization of mediation practice in Kenya by adopting best practices. It examines some of the challenges facing mediation practice in Kenya. It is also explores measures adopted towards fostering best practices in mediation at both the global and national level. The paper further suggests recommendations aimed at upholding ethics, integrity and best practice in mediation. In “Exploring the Role of Mediation in Promoting Small and Medium Enterprises (SMEs) and Fostering Economic Growth in Kenya” Atundo Wambare offers an in-depth analysis of the use of mediation in promoting the growth of small and medium enterprises (SME’s). He makes recommendations on how best mediation can be harnessed as a tool for economic growth in Kenya.

James Njuguna and Nyamboga George Nyanaro in “Compulsory Resolution or Autonomy Erosion? The Debate on Mandatory Sports Arbitration delve into the contentious issue of mandatory sports arbitration, questioning its role as a potential future pathway for dispute resolution. Their research examines the implications of compulsory arbitration on athletes’ autonomy, juxtaposing it with the benefits of expedited dispute resolution.

Paul Ngotho in “Constitution of Kenya 2010 Article 159.2.(c): Ancestry, Anatomy, Efficacy & Legacy” traces the rather odd origin and everlasting effect of the often-cited Article 159.2.(c) of the Constitution of Kenya 2010. It acknowledges the central role played by two members of the Chartered Institute of Arbitrators Kenya Branch, quietly and privately, away from the mainstream constitution making process. One of them chairman of the Branch, the other the Minister of Justice, National Cohesion and Constitutional Affairs.

David Onsare in “Navigating The ESG Maze: Emerging Trends in Arbitration and Corporate Accountability” embarks on a timely exploration of the dynamic interplay between Environmental, Social and Governance (ESG) factors and arbitration, a field gaining critical importance in the realm of corporate accountability. By offering a comprehensive view of the complexities and practical implications of ESG in arbitration, the article serves as a crucial guide for legal professionals navigating the evolving landscape of corporate responsibility and arbitration. In “Public Policy as a Ground of Setting-Aside an Arbitral Award: Musings on the Centurion Engineers Civil Appeal Judgment”

Ibrahim Kitoo argues a case for upholding of public policy as a ground for the nonrecognition, non-enforcement and setting aside of an arbitral award in cases where to recognise and enforce such awards proves to be a clear violation of the law and against the public good. Juvenalis Ngowi in “Arbitral Tribunals: Do they have the power to issue interim measures during the proceedings?” discusses the powers of the Arbitral Tribunal to grant such orders and examines some procedural rules which empower arbitrators to issue such orders, the scope of those powers, and the factors to be considered when granting interim measures in the arbitral proceedings.

In “Examining the Efficacy of Mediation as A Tool for Accessing Justice in Kenya: Opportunities, Challenges, and Future Perspectives” Murithi Antony undertakes a thorough examination of mediation as a form of ADR in the Kenyan context. He identifies opportunities arising from the integration of mediation into the country’s legal system and explores barriers impeding its widespread adoption. The article concludes with a resounding call to action for all stakeholders to champion the use of mediation collaboratively and proactively, given its proven efficacy in dispute resolution.

Kariuki Muigua & Company

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Kariuki Muigua & Company Advocates is a Top-Tier Kenyan law firm situated at the heart of Nairobi city in Kenya. We are a broad-based practice with a reputation for offering a full range of quality services to our domestic and international clients.

At KM&CO, we take pride in offering personalized attention to our diverse clientele. Our practice aspires to offer efficient and cost-effective legal solutions that meet our esteemed clients’ needs in a timely and competent manner.

KM&CO was founded in 1993 by the current senior Advocate, Dr. Kariuki Muigua. It is based in the Central Business District of Nairobi at the Pioneer Assurance House located opposite 7th August Bomb Blast Memorial Park enjoying the convenience of close proximity to major financial, commercial and governmental institutions.

We are open for consultations with our clients worldwide; we have lawyers on standby for 24 hours to cover diverse time zones that impact on our global clients.