Lawyers

Litigation Hall of Fame: Eric Mutua, OGW, SC, 46th POLSK

Published

1 year ago

September 23, 2023

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Eric K. Mutua, OGW, the 46th President of the Law Society of Kenya from 2012 to 2016 and Managing Partner of E.K Mutua & Company

Since the founding of LSK in 1949, Eric Kyalo Mutua is the only President of Law Society of Kenya to has served for 4 years having been elected for two consecutive terms of 2 years. Eric also remains the LSK President elected with the largest majority of votes (79%) in the last two decades. He served as the 46^th Chairman/President of the Law Society of Kenya from 2012 to 2016 and oversaw the critical role LSK played in laying the ground for the peaceful first transition of Government under the Constitution of Kenya 2010. Eric is recognized as an excellent and formidable litigator and commercial lawyer and has successfully acted in dozens of precedent-setting and high value matters for individuals, corporates and public entities.

Eric Mutua is an advocate of the High Court of Kenya of more than 28 years good standing having been admitted to the bar in 1995. He holds Masters of Law (LLM) degree and Bachelor of Laws (LLB) degree both from the University of Nairobi and a Diploma in Law from the Kenya School of Law and is also a Certified Public Secretary, a Commissioner of Oaths, a Notary Public and an Arbitrator and a specialist in litigation and dispute resolution and has handled numerous complex commercial and constitutional cases in all levels Kenyan and regional courts and tribunals including High Court, Court of Appeal, Supreme Court of Kenya and East African Court of Justice (EACJ). He also represents claimants and respondents in complex and contested arbitration claims before domestic and international arbitration panels.

Eric has extensive experience advising and handling cases in international law, constitutional law and human rights, land and environmental law, real estate and construction disputes, commercial litigation, corporate governance including shareholder disputes, insurance, aviation law and insurance, sports dispute resolution, intellectual property in particular trademarks opposition and expungement proceedings, insolvency, debt collection and creditors’ rights, banking and financial claims, communications, professional liability defense, regulatory compliance, employment and labour law, criminal and economic crimes law and international commercial arbitration.

Recent Key Cases Handled by Eric Mutua

One of the recent key case Eric has been involved in is representing Kenya Airport Authority (KAA) in the long-running landmark case of Mitu-Bell Welfare Society v Kenya Airports Authority & 2 others [2021] eKLR at the High Court, Court of Appeal and the Supreme Court. In this case which was filed in High Court in 2011 and went all the way to Supreme Court, Eric was defending KAA which was accused of forceful eviction without due notice and despite a Court order prohibiting evictions of more than 15,000 men, women and children from Mitumba village near Wilson Airport, through the demolition of their homes and schools, leaving them homeless.

The case featured prominently in the just concluded Chief Justice interviews because it is the standing authority on the place of structural interdicts as a form of relief in human rights litigation in Kenya. The Supreme Court upheld the applicability of structural interdicts by restating its holding in Communications Commission of Kenya & 4 others v Royal Media Services Limited & 7 others [2014] eKLR that Article 23(3) of the Constitution, in listing the appropriate reliefs a court may grant, uses the word ‘including’ implying that the reliefs listed therein are non-exhaustive. Therefore, a court can issue orders other than those listed as it deems fit, to be decided on a case-by-case basis.

Eric also successfully acted for a State Corporation in an Appeal to the High Court in a matter seeking to set aside a Ksh. 9.4 billion arbitration award given to a tenant on basis that it was unconstitutional and against public policy. High Court concurred with Eric that the impugned Arbitration award was contrary to public policy as the arbitrator (a former High Court Judge) had ignored, disregarded and/or misinterpreted the legal effect of a decision by the International Centre for Settlement of Investment Disputes (ICSID) in a related matter where the Government of Kenya was a party.

Eric successfully represented the Plaintiff against a Major Insurance Company in a case that interrogated whether a clause in the insurance policy limiting liability to third parties to a certain amount is valid and enforceable in law under Insurance (Motor Vehicles Third Party Risks) Act, Cap. 405 of the Laws of Kenya. The clause currently limiting liability to Ksh. 3 Million did not exist at the time. The Court found that such clause was invalid, void and unenforceable and the insurer was bound to pay the third parties the amount of compensation awarded by Court.

He also acted for a claimant in an aviation insurance arbitration matter against four (4) major insurance companies who had insured his registered aircraft which was involved in an accident and was extensively damaged. The dispute involved the applicability of the “component parts clause” of the aviation insurance policy and whether the claimant incurred loss and damage payable under the insurance policy. Eric convinced the arbitration tribunal to find in favour of his client that the component parts clause was not applicable in the instant case and that the claimant incurred loss and damages covered and was entitled to compensation under the insurance policy.

Barely 5 years after admission, Eric hit the headlines representing Eric Keter, an international athlete, at the Court of Appeal following the decision of the Kenya Amateur Athletics Associations to exclude him from the national team selected to participate in Sydney Olympic Games of 2000 despite being the reigning national champion at the time. The court found that the Defendants had discriminated the athlete and unfairly denied him the opportunity to to represent Kenya in the Olympics and issued a mandatory injunction ordering the Defendants to enlist and register him as a qualifying member of the Kenyan team for the games.

Eric also famously acted for the Murang’a Senator Hon Irungu Kangata and Nominated MP Hon David Sankok and 5 other student leaders of the University of Nairobi in a case that challenged the decision to expel them with the Late Mutula Kilonzo Senior representing the University. The High Court cancelled the expulsion but ordered their disciplinary case to be remitted back to the University with Directions that Kangata, Sankok and the fellow students to be tried. Eric appealed the order for retrial of the students and the Court of Appeal stayed that portion of the order allowing Kangata and Sankok and the rest to continue with their studies.

National, Regional and the Continental Legal Perspective

Eric is a member of the International Bar Association, Commonwealth Law Association, Pan African Lawyers Association (PALU), East Africa Law Society, the Law Society of Kenya, Institute of Certified Secretaries (ICS) of Kenya and Chartered Institute of Arbitrators. Eric has been awarded many professional accolades including MEA Africa Legal 100 and is a recipient of the Order of Grand Warrior of Kenya (OGW) award by the President of Kenya.

In addition to serving as the 46th President of the Law Society of Kenya, Eric served as Council Member of LSK for more than a decade, Treasurer of East African Law Society, Vice-President Pan African Lawyers Union (PALU) and Board Member of Council of Legal Education. The broad exposure and experience serving lawyers as a top official in these National, Regional and the Continental Associations has given Eric unique understanding of legal business environment across Africa. He is also able to leverage the extensive contacts built over the years across the world to offer a wide range of legal services for business in the Kenyan, East African and African markets for the past 22 years.

Eric is the founding and Managing Partner of the E.K. Mutua & Company Advocates, a medium-size corporate and commercial law firm established with a reputation of excellent and innovative legal practice of more than 25 years. The firm is structured into four main practice groups, namely, Litigation and Dispute Resolution Practice, Commercial and Corporate Practice, Banking and Finance Practice and Real and Intellectual Property Practice. The firm’s operations are based at its head office in the Flamingo Towers, 9th Floor, in Upperhill, the emerging Commercial and Financial Hub of Nairobi City.

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Lawyers

George Kashindi: Top Statesperson in Commercial Law in 2024

Published

1 week ago

October 12, 2024

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George Kashindi, Partner at Munyao, Muthama & Kashindi Advocates and Member, Tax Appeals Tribunal

Partner, Munyao Muthama & Kashindi Advocates (MMK) & Member, Tax Appeals Tribunal.

Practice Areas

Taxation and Revenue
Regulatory and Compliance
Advisory and dispute resolution
Compliance and Governance Audits
Public Procurement
Civil and Commercial Litigation
Arbitration
Energy and Natural Resources
Constitutional Law
Judicial Review
Employment and Labour Relations

Biography

George is an Advocate of the High Court of Kenya with over 22 years of experience. He is a Partner of Munyao, Muthama & Kashindi Advocates (MMK Advocates) previously in charge of the Nairobi office (now on sabbatical) and Member of Tax Appeals Tribunal. George started his legal career in the well- known firm of Rachier and Amollo where he gained a wealth of experience in a broad spectrum of legal matters. Subsequent to leaving Rachier & Amollo, George trained at the Kenya Revenue Authority Training Institute for 2 years and thereafter worked at Kenya Revenue Authority as Senior Legal Counsel for 5 years. With this background, George has a very solid understanding of the tax policy and legislative framework and has many years’ experience in litigation, tax dispute resolution, tax investigations and prosecutions, interpretation of the tax statutes and advising on tax policy and legislation. He possesses a wealth of knowledge in dealings with senior revenue and treasury officials. He holds an LLM in Financial Services with a specialisation in tax and has acted in a number of jurisprudence setting tax matters.

George has extensive experience in regulatory and compliance advisory and litigation and has acted for a number of Kenya’s leading regulators including the Kenya Airports Authority, Communication Authority, Agriculture Food Authority, Energy Regulatory Commission, Kenya Forest Service, Engineers Board of Kenya, National Transport and Safety Authority, NGOs Coordination Board, Kenya Civil Aviation Authority, National Hospital Insurance Fund to name but a few. He is well versed in regulatory law and practice, compliance and governance matters.

George has extensive experience in conducting legal, regulatory, compliance and governance audits and is respected in this field as a leading expert. He has conducted the audits on blue chip companies listed in the bourse, leading corporates, parastatals and other government entities among other clients. His previous and existing clients include Safaricom, Post Bank, Kenya Electricity Generating Company (KenGen), National Hospital Insurance Fund, and Technical University of Mombasa among others. The highly rated Legal, Compliance and Governance Audit practice headed by George is accredited by the Law Society of Kenya.

George also advises clients on public procurement, NGOs and Charities law, employment and labour relations, energy and natural resources, immigration among others. He is also in charge of running training portfolio of the firm.

Educational and professional qualifications

Bachelor of Laws, University of Nairobi 2000
Diploma in Law, Kenya School of Law 2001
Admitted as an Advocate of the High Court of Kenya, 2002
Masters Degree in law (Financial Services Law), University of Nairobi 2017

Membership in professional associations

Law Society of Kenya

Career history

Pupilage: Rachier & Company Advocates, 2000-2001
Management Trainee: Kenya Revenue Authority Training Institute, 2001-2002
Senior Legal Counsel: Kenya Revenue Authority, 2002-2007
Partner: Munyao, Muthama & Kashindi- 2009 to date

Work Highlights

Legal, governance, compliance, regulatory audits.

Team leader in conducting legal, compliance and regulatory audits which entail It reviewed the client’s internal policies, practices and operations of the governing bodies and various departments to assess their compliance with the relevant laws including the Constitution, the establishing and regulating statutes and subsidiary legislation. The previous and existing clients include Safaricom, Post Bank, Kenya Electricity Generating Company (KenGen), National Hospital Insurance Fund, and Technical University of Mombasa, Kenya Literature Bureau, Institute of Certified Public Accountants, Post Office Savings Bank among others.
Team leader in reviewing the legal and policy frameworks to strengthen integrated coastal zone management (ICZM) in Kenya
Team leader of the corporate governance practice area and has been involved in reviewing clients’ corporate governance structures and giving advice on legal, compliance and governance requirements. He has offered tailor made presentations and training sessions to clients’ board members and senior executives on corporate governance and other applicable legal and compliance requirements.
Advised clients on risk assessment and implementation of risk mitigating measures relating but not limited to directors duties, anti-corruption/bribery, anti-money laundering among others.

Tax

Assisted a leading audit firm in challenging a tax assessment raised by KRA in excess ofKshs 600,000 million against an international NGO operating in the Kenya and the region. The case involved complex legal points relating to expatriate tax, installment tax, definition and meaning of residency and interpretation of a number of statutory provisions.
Acted for one of the largest Container Freight Terminals in Mombasa that had been shut down by the Commissioner of Customs Services after a huge assessment of tax. The case successfully challenged the Commissioner of Custom’s power to close the facility and addressed other complex customs legal issues.
Represented one of the largest private universities in successfully pursuing a waiver of tax penalties and interest resulting from an initial assessment of tax by KRA amounting to KShs. 70 million.
Represented a leading company operating in the horticultural sector in appealing a tax assessment of over Kshs 200 million.
Represented a leading Italian company headquartered in Rome Italy running a space research project in Malindi to successfully challenge enforcement action by KRA of freezing the company’s bank accounts. The case addressed developing jurisprudence of striking a proper balance between the enforcement powers of the tax man viv a vis the need to protect a tax payer from the risk of substantial hardship including total collapse due to enforcement action. The court was persuaded to set aside an earlier order for the client to furnish security of a substantial amount and granted an unconditional stay of enforcement action. The monetary exposure was over Kshs 160 million.
Represented a leading export trading company in challenging tax assessment in excess of Ksh 300 million and dealing with complex tax issues touching on various WTO rules including the non-discrimination principle, rules of origin, East African Common tariff classification, and an array of constitutional and administrative law issues.

Regulatory advisory and dispute resolution

Representing and advising an array of regulators of various sectors and public bodies on a wide range of issues and claims airing from their exercise of their regulatory and statutory mandates. Kenya Airports Authority, Communication Authority, Agriculture Food Authority, Energy Regulatory Commission, Kenya Forest Service, Engineers Board of Kenya, National Transport and Safety Authority, NGOs Coordination Board, Kenya Civil Aviation Authority, National Hospital Insurance Fund to name but a few.

Energy

Represented a regulator in the energy sector against representative/class action public interest and consumer protection related claims made against the regulator and other players in the sector concerning several issues touching on electric power billing tariffs among other issues. The value of some of the matters in contention is over Kshs 10 billion.
Representing a regulator in the energy sector against a representative/class action public interest and consumer protection related claims made against the regulator and other government agencies touching on key issues in the energy sector such as power generation, power purchase agreements, deemed energy, financing of power generation projects, Government guarantees, electricity transmission and an array of constitutional issues. The value of the matters under consideration is over Kshs 100 billion.
Team leader in conducting a legal and regulatory audit of a leading player in the energy sector. The audit included visiting critical their installations across the country, reviewing local and international contractual agreements, advising on Power Purchase Agreements, reviewing board and management operations, identifying and advising on legal risks.
Acted for a Government entity operating in the energy sector in responding to compliance summons issued by a County Government relating to their installations within the county.
Acted for a company operating in the geothermal sector in defending a contractual claim of substantial amount of money relating to a multi-lateral donor- funded project for drilling and extraction of steam through the innovative well-head technology.

Public Procurement

Represented a leading Chinese firm which was a successful bidder in a multi-billion donor funded project for the Water and Sanitation Improvement project awarded by one of the public bodies operating in the water sector, in successfully opposing a challenge instituted by a losing bidder before the Public Procurement Administrative Review Board. The matter involved key procurement issues and jurisprudence touching on among other things, locus standi of applicants in a joint venture.
Representing the same Chinese firm in separate proceedings instituted by a different bidder but relating to the same award. Acted for the firm both before the Administrative Review Board and the High Court. The cases addressed notable public procurement matters including the Board’s jurisdiction in disputes emanating from donor funded projects and projects the subject to negotiated grants.
Represented a leading supplier and retailer of tyres and accessories before the Public Procurement and Appeals Review Board in dispute relating to a multi-million tender awarded by a public body in based in Mombasa and operating in the ports sector. The challenge succeeded before the Board but was subsequently overturned on appeal to the High Court.

Non-Governmental and Charities

Retained by several charitable, not for profit and religious organisations on an array of issues ranging from registration processes and documentation, regulatory compliance, tax advice, labour law matters, court representation and advice on contracting processes. Such NGOs include but not limited to Helpage, International Republican Institute, Food For the Hungry among others.

Employment and labour relations

Represented and advised an array of clients drawn from various sectors in a wide range of employment and labour related matters including representations in court, drafting of employee contracts, drafting and reviewing polices and manuals, advice on termination, dismissals, redundancies and restructuring, managing employee-exists, advice on collective bargaining and negotiations, secondment, outsourcing among others.

Lawyers

Josephine L.M. Righa: Hall of Fame Commercial Lawyer in 2024

Published

1 week ago

October 12, 2024

Admin

Josephine L.M. Righa is the Managing Partner of Josephine Righa Advocates.

Josephine L.M. Righa, the Managing Partner of Josephine Righa Advocates, has over 15 years of commercial and corporate law experience and was nominated as the Commercial Practitioner of the year 2023 at the Nairobi Legal Awards. She is listed in THE LAWYER AFRICA Commercial Lawyers Hall of Fame 2024 for her exemplary performance as a commercial lawyer acting for and representing top firms and businesses over the years. Previously, she was listed among the Top 100 Commercial Lawyers in Kenya in 2023.

Josephine has all round experience in commercial and corporate law gained from working as an in-house lawyer for a leading multinational, rising through the ranks from junior associate to the head of commercial and corporate law department of a leading law firm and founding her own commercial law boutique firm serving leading commercial clients and handling high value business transactions.

Josephine graduated in the year 2008 with a Bachelors of Laws Degree from the Catholic University of Eastern Africa and commenced working as legal assistant for Coca-Cola Central East & West Africa Limited from the years 2009. In the year 2011, Ms. Righa pursued her Bar studies and now holds a Post-Graduate Diploma in Law from Kenya School of Law.

She did her pupillage with the firm of Igeria and Ngugi Advocates and was promoted to Associate position upon her admission to the Bar in the year 2012. In the year 2014, she was promoted as a Senior Associate and the head of the Corporate and Commercial Practice of the firm, a position she held until July 2019. She founded Josephine Righa Advocates, a leading commercial and corporate law boutique in Kenya, where she serves as the Principal and Managing Partner

In addition she is a notary public, commissioner for oaths, a registered Patent Agent of the Kenya Intellectual Property Institute and is currently pursuing a Certified Public Secretaries (CPS) certification. She is also certified professional trainer in Legal Audits and Compliance, Corporate Governance, Private Public Partnerships and Contract Management & Administration (specifically trained on Contract Negotiation, Contract Drafting and review, Changes and Variations in Contracts, Dispute Avoidance & Resolution and Contract Administration Overview).

Josephine is keen on corporate governance issues and having been professionally trained by the Centre for Corporate Governance (CCG) Kenya and the Institute of Directors (IOD), Kenya, she now is an Associate Member of IOD-Kenya. Further, she is a certified professional mediator having been professionally trained by Mediation Training Institute (I) East Africa to mediate disputes in a variety of spheres including but not limited to commercial, workplace, community and family disputes.

Lawyers

Mwangi Kibicho: Top Statesperson in Commercial Law in 2024

Published

1 week ago

October 12, 2024

Admin

Mwangi Kibicho, Managing Partner of J.K. Kibocho & Co. Advocates and Top Commercial Lawyer in Kenya

Practice Areas:
Dispute Resolution, Commercial & Corporate Law.

Membership in professional societies:
Law Society of Kenya
East Africa Law Society

Email: mwangi@jkkibicho.co.ke

Credentials:
• MBA – Global Business Management (MBA – GBM), United States International University (USIU)
• Postgraduate Diploma in law, Kenya School of Law.
• Bachelor of Laws, LL.B (Hons), Moi University.

Mwangi Kibicho is a consummate and versatile advocate with a wealth of experience in legal matters. He demonstrates dynamism in his hands – on approach to the law. Having been in the legal practice since 2002, when he joined J.K. Kibicho & Advocates, he has risen through the ranks to the position of Managing Partner.

Work Experience

Advising a multinational corporation, which intended to invest in the lending pool in Kenya, on the legal aspects of off-shore lending and the legal procedures and structures on microfinance in Kenya.
Acting for a company in the transfer of 1,000 acres of its land in Naivasha to the Government of Kenya for the development of an industrial park being part of the Government’s targeted key elements of infrastructural growth.
Advising one of the first Drone Clubs in Kenya in registration of the drones, to engaging with several Kenya Civil Aviation officials for authorization and holding discussions on the proposed legal regulations of drones in Kenya.
Advising a client on the incorporation of its leading mortgage association in the country, engaging various stakeholders in the mortgage industry, and advising the client on the legal structures and impact of the same as well as making recommendations on the implementation of the association’s objectives.
Acting for a company in advising and preparing documentation for transfer of more than 10,000 acres of its land to its shareholders as non-cash dividends.
Acting for the leading management agency for small scale tea farmers in Kenya in their hydropower projects in various parts of the country, advising on project management analysis and review, engaging the involved stakeholders on the project execution, preparing and perfecting the necessary documentation.
Conducting high level research and advising a client in preparation of a Memorandum of Understanding between the Turkana County Government and a limited liability company incorporated in Kenya for exploration and development of the Barrier Volcanic Complex Geothermal in Turkana County, Katilia Ward.
Preparation, negotiation and registration of residential and commercial leases for various developments in the country.
Drafting and conducting high level negotiations of various contracts.
Attending to registration of trademarks for several large companies and individuals.
Advise and facilitating one of our major clients seeking to establish a Public Private Partnership on the government’s Affordable Housing Programme (AHP).
Conducting research and opinion writing to clients on various legal matters.
Setting up both internal and external legal and practice trainings as well as presentations.
Participating in the Commercial Practice Committee under the LSK, Nairobi Branch which seeks to set up proper practice standards related to Commercial law in Kenya and championing for harmonisation of the laws related to the same.
Participating in the Lands Registry Liaison Committee under the LSK, Nairobi Branch which seeks to identify and resolve the issues in the lands registries.