News & Analysis

Promise and Pitfalls in Unlocking Climate Finance

Published

1 year ago

January 20, 2024

Admin

Climate Finance is key to realizing Climate Action SDGs

By Hon. Dr. Kariuki Muigua, OGW, PhD, C.Arb, FCIArb (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) and and Kenya’s First Two Climate Change Law Book: Combating Climate Change for Sustainability (Glenwood, Nairobi, October 2023) and Achieving Climate Justice for Development (Glenwood, Nairobi, October 2023)*

The landscape of climate finance presents numerous opportunities. The United Nations Framework Convention on Climate Change (UNFCCC) has established the Green Climate Fund which is mandated to support countries particularly those that are vulnerable to the impacts of climate change, including least developed countries, small island developing states, and African nations. The Green Climate Fund is the world’s largest climate fund and plays a fundamental role in helping developing countries raise and realize their Nationally Determined Contributions (NDC) ambitions towards low-emissions and climate resilient pathways as envisaged under the Paris Agreement.

Since 2015, the Green Climate Fund has approved over $12 billion for projects across more than 125 developing countries to accelerate clean energy transitions, build resilience in the most vulnerable countries, and catalyze private investment. These projects are expected to reduce 2.5 billion tons of emissions and increase the resilience of over 900 million people. The Green Climate Fund therefore plays a key role in unlocking climate finance. Furthermore, at the 2022 United Nations Climate Change Conference/Conference of the Parties of the UNFCC (COP27), a breakthrough agreement was reached to provide loss and damage funding for vulnerable countries hit hard by floods, droughts and other climate disasters. This decision has been lauded as historic since it recognizes the need for finance to respond to loss and damage associated with the severe consequences of climate change.

The decision recognizes the urgent and immediate need for new, additional, predictable and adequate financial resources to assist developing countries that are particularly vulnerable to the adverse effects of climate change in responding to economic and non-economic loss and damage associated with the adverse effects of climate change. The decision supports the UNFCCC commitment to jointly mobilise $100 billion in climate finance per year to support developing countries.

Actualizing the decision of COP 27 and meeting UNFCCC’s commitment on climate funding is vital in unlocking climate finance for development. In addition, developed countries have embraced climate finance by promising to provide financial assistance to developing countries to support their climate change mitigation and adaptation activities as envisaged under the Paris Agreement. The United States of America (USA) pledged to enhance climate support for developing countries to more than $11 billion a year by 2024.

In addition, the USA recently provided $1 billion to the Green Climate Fund (GCF) to support climate change mitigation and adaptation measures in developing countries. Further, the United Kingdom has committed to spend £11.6 billion on International Climate Finance from financial years 2021/2022 to 2025/2026. The UK notes that this funding is crucial in climate action through investments in priority areas including clean energy, adaptation and resilience and sustainable cities, infrastructure and transport. Developing countries therefore play an important role in unlocking climate finance for development.

International and regional financial institutions have also been key catalysts in unlocking climate finance. The World Bank acknowledges that financing transformative climate action is vital for development and to support the poorest people who are most affected by climate change. The World Bank delivered a record USD 31.7 Billion in fiscal year 2022 to help countries address climate change representing a 19% increase from the USD 26.6 Billion reached in the fiscal year 2021. The World Bank continues to be the largest multilateral financier of climate action in developing countries.

In Africa, the African Development Bank is committed to action on climate change and green growth, and to ensuring that development across the continent drives growth that is not only economically empowering but also decarbonized, climate friendly, environmentally sustainable, and socially inclusive.56 In its Climate Action Plan, the African Development Bank recognizes the importance of leveraging climate finance and mobilizing resources for climate action and green growth. The Bank’s climate finance investments increased from $2.1 billion in 2020 to $2.4 billion in 2021 and $3.6 billion in 2022. International and regional financial institutions therefore play a critical role in promoting access to climate finance.

Countries have also furthered their own efforts to unlock climate finance. The Government of Kenya estimates that USD 62 Billion is required to implement the country’s National Determined Contributions (NDCs) between 2020-2030. Kenya has made progress in realizing climate finance through public climate finance, bilateral and multilateral external funding and private climate finance involving both foreign investors and Kenyan investors. The country has also established budget programmes for biodiversity protection as part of its mitigation and adaption measures. Kenya has also adopted a green bond programme to promote financial sector innovation by developing a domestic green bond market. The programme is vital in enhancing the climate resilience of the country by fostering green investments.

In addition, Kenya has pioneered climate finance for pastoralist and vulnerable communities to reduce their vulnerability to climate change. This has enabled pastoralist communities to build community resilience and carry out climate-resilient development in a manner that fosters participation and community inclusion. It has further been observed that county governments in the drylands of Kenya have established local-level climate adaptation funds with technical support from government and non-government organisations. These funds are essential in supporting community-prioritized investments to build climate resilience. The landscape of climate finance in Kenya looks promising due to the availability of public finance, private climate and nature finance and innovative options for climate and nature finance such as green bonds.

From the above discussion, it emerges that there are huge promises for climate finance at the global, regional and national levels. However, several problems hinder effective realization of the ideal of climate finance for development. It has been observed that despite developed economies committing to provide climate financing to developing countries, some of them have not followed through on their commitments. Developed countries have failed to deliver on an agreed climate finance target of USD 100 billion annually by 2020.70 This results inadequacy, imbalance and unpredictability of climate finance flows to developing countries. This has affected implementation of mitigation and adaptation measures in developing countries.

Africa also faces several problems in unlocking climate finance. African governments pledged $ 264 Billion in domestic public resources to combat climate change a figure that falls short of the estimated USD 2.8 trillion required to implement Africa’s Nationally Determined Contributions (NDCs) between 2020 and 2030. It has also been observed that the debt crisis in Africa hinders the Continent’s ability to unlock climate finance. This has affected investor confidence and the ability of African countries to access international markets. Further, it is argued that governance problems limit the potential of Africa to unlock climate concerns due to concerns about transparency, accountability, and efficient allocation of funds aimed towards climate action.

It has also been asserted that limited capacity, expertise and human resources can hinder the potential of developing countries to unlock climate finance due to concerns over ability to implement projects aimed at climate change mitigation and adaptation. It is imperative to address these concerns in order to unlock climate finance in Africa and other developing countries. Further, whereas the decision of COP 27 to establish and operationalize a loss and damage fund, particularly for nations most vulnerable to the climate crisis is commendable, there are still concerns about who should pay into the fund, where this money will come from and which countries will benefit. There is need to address these concerns in order to unlock climate finance.

*This is an extract from the Book: Achieving Climate Justice for Development (Glenwood Publishers, Nairobi, October 2023) by Hon. Dr. Kariuki Muigua, OGW, 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 National Environment Tribunal (NET) Emeritus (2017 to 2022) and Member of Permanent Court of Arbitration nominated by Republic of Kenya. 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 2019-2022. Dr. Muigua is a 2023 recipient of President of the Republic of Kenya Order of Grand Warrior (OGW) Award for his service to the Nation as a Distinguished Expert, Academic and Scholar in Dispute Resolution and 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 and the Top Arbitrator in Kenya in 2023.

References

African Development Bank Group., ‘Climate Change.’ Available at https://www.afdb.org/en/topics-and-sectors/sectors/climate-change (Accessed on 10 August 2023).

African Development Bank., ‘African Development Bank Climate Change and Green Growth Strategic Framework: Action Plan 2021-2025.’ Available at https://www.afdb.org/en/documents/climate-change-and-green-growth-strategic-frameworkoperationalising-africas-voice-action-plan-2021-2025 (Accessed on 10 August 2023).

African Union, African Leaders Nairobi Declaration on Climate Change and Call to Action, A declaration made on 6th September 2023 by African leaders attending the Africa Climate Summit 2023 < https://au.int/en/decisions/african-leaders-nairobideclaration-climate-change-and-call-action-preamble> (Accessed on 10 August 2023).

Agyir. K., ‘African Countries Must Act Strategically to Unlock Climate Finance in the Face of a Debt Crisis.’ Available at https://blogs.lse.ac.uk/africaatlse/2023/06/15/african-countries-must-act-strategically-tounlock-climate-finance-in-the-face-of-a-debt-crisis/ (Accessed on 10 August 2023).

Global Center on Adaptation., ‘Kenya Pioneers Climate Finance for Pastoralist and Vulnerable Communities.’ Available at https://gca.org/kenya-pioneers-climate-finance-forpastoralist-and-vulnerable-communities/ (Accessed on 10 August 2023).

Government of the United Kingdom., ‘UK International Climate Finance Strategy.’ Available at https://www.gov.uk/government/publications/uk-international-climate-financestrategy (Accessed on 10 August 2023).

Green Climate Fund., ‘About GCF.’ Available at https://www.greenclimate.fund/about (Accessed on 10 August 2023).

Green Finance Platform., ‘The Kenya Green Bond Programme.’ Available at https://www.greenfinanceplatform.org/policies-and-regulations/kenya-green-bondprogramme (Accessed on 10 August 2023).

International Institute for Environment and Development., ‘Local Climate Finance Mechanism Helping to Fund Community-Prioritised Adaptation.’ Available at https://www.iied.org/local-climate-finance-mechanism-helping-fund-communityprioritised-adaptation (Accessed on 10 August 2023).

Kone. T., ‘For Africa to meet its Climate Goals, Finance is Essential.’ Available at https://climatepromise.undp.org/news-and-stories/africa-meet-its-climate-goalsfinance-essential (Accessed on 10 August 2023).

Magoma. C., ‘A Huge Financing Gap for Climate Action with Public Debt Sustainability Risks Looms in East Africa beyond COP27.’ Available at https://www.acepis.org/a-huge-financing-gap-for-climate-action-with-public-debtsustainability-risks-looms-in-east-africa-beyond-cop27/ (Accessed on 10 August 2023).

Nicholson. K., ‘Kenya Climate and Nature Financing Options Analysis Final Report.’ Available at https://acrobat.adobe.com/link/review?uri=urn%3Aaaid%3Ascds%3AUS%3A5f6c09bfc917-3b18-9c63-4c2c03af8151 (Accessed on 10 August 2023).

Republic of Kenya., ‘Kenya’s Submission on the Objective of the New Collective Quantified Goal On Climate Finance with Respect Article two of the Paris Agreement.’ Available at https://acrobat.adobe.com/link/review?uri=urn%3Aaaid%3Ascds%3AUS%3Aa62dd186- 0d91-3d24-b799-ebe0b32b939a (Accessed on 10 August 2023).

The White House., ‘FACT SHEET: President Biden to Catalyze Global Climate action through the Major Economies Forum on Energy and Climate.’ Available at https://www.whitehouse.gov/briefing-room/statements-releases/2023/04/20/fact-sheetpresident-biden-to-catalyze-global-climate-action-through-the-major-economies-forum-onenergy-and-climate/ (Accessed on 10 August 2023).

The World Bank., ‘10 Things You Should Know About the World Bank Group’s Climate Finance.’ Available at https://www.worldbank.org/en/news/factsheet/2022/09/30/10-things-you-should-knowabout-the-world-bank-group-s-climate-finance (Accessed on 10 August 2023).

UNFCC., ‘Decision -/CP.27 -/CMA.4: Funding Arrangements for Responding to Loss and Damage Associated with the Adverse Effects of Climate Change, Including a Focus on Addressing Loss and Damage.’ Available at https://unfccc.int/sites/default/files/resource/cma4_auv_8f.pdf (Accessed on 10 August 2023).

UNFCC., ‘Five Key Takeaways from COP27.’ Available at https://unfccc.int/processand-meetings/conferences/sharm-el-sheikh-climate-change-conference-november-2022/fivekey-takeaways-from-cop27?gclid=EAIaIQobChMI5_C16jRgAMVDzAGAB1Ikw6NEAAYASAAEgL_QfD_BwE (Accessed on 10 August 2023).

United Nations Environment Programme., ‘COP27 Ends with Announcement of Historic Loss and Damage Fund.’ Available at https://www.unep.org/news-andstories/story/cop27-ends-announcement-historic-loss-and-damage-fund (Accessed on 10 August 2023).

United Nations Framework Convention on Climate Change., ‘Introduction to Climate Finance.’ Available at https://unfccc.int/topics/introduction-to-climatefinance?gclid=EAIaIQobChMI18L91LDRgAMVaIpoCR2_kQzJEAAYAiAAEgI4cfD_BwE (Accessed on 10 August 202310 August 2023.

United Nations Framework Convention on Climate Change., ‘Report of the Conference of the Parties on its Sixteenth Session, held in Cancun from 29 November to 10 December 2010.’ FCCC/CP/2010/7/Add.1.

United Nations., ‘Accessing Climate Finance: Challenges and opportunities for Small Island Developing States.’ Available at https://www.un.org/ohrlls/sites/www.un.org.ohrlls/files/accessing_climate_finance_challenge s_sids_report.pdf (Accessed on 10 August 2023).

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News & Analysis

Brief Overview of Kenyan Bankruptcy Law

Published

3 weeks 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

8 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.

MMA Advocates LLP

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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.