News & Analysis

Top Arbitrator in Kenya 2024: Prof. Kariuki Muigua, OGW, PhD, C.Arb.

Published

1 year ago

January 26, 2024

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African CIArb Trustee Emeritus and Top Arbitrator in Kenya 2023, Prof. Kariuki Muigua, OGW, PhD, CIArb

Prof. Kariuki Muigua, OGW, PhD, Professor of Environmental Law and Dispute Resolution at the University of Nairobi, Member of Permanent Court of Arbitration representing Republic of Kenya, President of Republic of Kenya Order of Grand Warrior (OGW) Awardee 2023, the African Arbitrator of the Year 2022 and the African ADR Practitioner of the Year 2022, is the THE LAWYER AFRICA Top Arbitrator in Kenya 2024. He is one of the most qualified and decorated Arbitrators in Africa being a Chartered Arbitrator (2015), Fellow of the Chartered Institute of Arbitrators (FCIArb), Accredited/Certified Mediator and Advocate of the High Court of Kenya of 35 Years. Previously, he has been ranked among the Top Six (6) Dispute Resolution Experts (Arbitration) in Kenya by Chambers & Partners (Band 1) and among the Top three (3) Arbitrators in Kenya by THE LAWYER AFRICA in 2022/2023. He has handled numerous complex commercial arbitrations and mediations having subject value of over Half Trillion (Ksh. 500 Billion) in the last 20 years of ADR practice.

In 2021, Prof. Kariuki Muigua was awarded the Inaugural CIArb (Kenya) Lifetime Achievement Award 2021 for his immense contribution to arbitration and ADR practice in Kenya and East Africa region. Prof. Muigua is a foremost ADR Scholar and Academic having written his PhD Thesis on Mediation. Prof. Kariuki Muigua served as the Chairperson of the Chartered Institute of Arbitrators (Kenya Branch) from 2012 to 2015 and is the Africa Trustee of the Chartered Institute of Arbitrators from 2019. He was also awarded the coveted ADR Practitioner of the Year Award 2021 by the Nairobi Law Society at the Nairobi Legal Awards and ADR Publisher of the Year 2021 by the CIArb (Kenya).

Prof. Muigua is a Member of the Nairobi Centre of International Arbitration Faculty, is an Accredited Tutor of the Chartered Institute of Arbitrators (Kenya Branch) and also teaches International Commercial Arbitration at the University of Nairobi both at undergraduate and postgraduate level and is the author of leading ADR Text Books including “Settling Disputes Through Arbitration in Kenya”, “Resolving Conflicts through Mediation in Kenya” and “Alternative Dispute Resolution and Access to Justice in Kenya. Prof. Muigua is also the Editor in Chief of the Leading ADR Peer-Reviewed Journals in East Africa, namely, Alternative Dispute Resolution Journal (Official Journal of the CIArb Kenya) and the Journal of Conflict Management and Sustainable Development (JCMSD).

Relevant Education and Qualifications on Arbitration

Professor of Environmental Law and Dispute Resolution
Member, Permanent Court of Arbitration
CIARB Africa Trustee Emeritus (2019-2022)
Chartered Arbitrator 2015.
Accredited/Certified Professional Mediator (MTI) 2015.
Fellow of the Chartered Institute of Arbitrators (FCIArb), 2012.
University of Nairobi, Ph.D., 2011. Thesis titled “Resolving Environmental Conflicts in Kenya through Mediation”
Module 4 Arbitration – October 2010.
Master of Laws (LLM), 2005 specializing in Environmental Law and Natural Resource Conflicts/Dispute Resolution and studied advanced course on International Commercial Arbitration
Member of the Chartered Institute of Arbitrators (MCIArb), 2002.
Advocate of High Court of Kenya, 1989.

Work Highlights, Recognitions and Memberships on Arbitration

Top Arbitrator in Kenya 2023/24
Member of Permanent Court of Arbitration (PCA)
African ADR Practitioner of the Year 2022
African Arbitrator of the Year 2022
ADR Practitioner of the Year in Kenya 2021.
ADR Publisher of the Year 2021
CIArb (Kenya) Inaugural Lifetime Achievement Award 2021
Regional Trustee for Africa, Chartered Institute of Arbitrators (CIArb) Board of Trustees.
Member National Steering Committee for Formulation of the Alternative Dispute Resolution Policy (Government of Kenya), 2020
Senior Lecturer, School of Law, University of Nairobi, International Commercial Arbitration;
Senior Partner, Kariuki Muigua & Co. Advocates specializing in, among others, Alternative Dispute Resolution, Arbitration and Mediation.
Tutor, Chartered Institute of Arbitrators-Kenya Teaching and researching Alternative Dispute Resolution Methods at all levels, namely: entry level, Associate level, Member level and fast-track to fellow level.
Awardee, Chartered Institute of Arbitrators Chairman’s medal, with citation for exemplary service, December, 2015.
Chartered Arbitrator of the Chartered Institute of Arbitrators
Fellow of the Chartered Institute of Arbitrators (FCIArb)
Branch Chairman of CIArb-Kenya from 2012 to 2015
Council of the Chartered Institute of Arbitrators (CIArb) – Kenya chapter.
Member and past chairperson of the sub-committee on Information Technology (IT), CIArb
Member of the Legal Committee Chartered Institute of Arbitrators (CIArb) – Kenya chapter
Member, Meditation Accreditation Committee Panel of Mediators Accredited for Commercial Mediation (The Judiciary, Republic of Kenya).
Member of London Court of International Arbitration (LCIA) (2002)
Member, Kigali International Arbitration Centre (KIAC) International Panel of arbitrators.
Member, Nairobi Centre for International Arbitration (NCIA) Panel of International Arbitrators.
Member, Nairobi Centre for International Arbitration (NCIA) Panel of Domestic Arbitrators.
Member, Nairobi Centre for International Arbitration (NCIA) Panel of Domestic Mediators.
Member of the National Environment Tribunal (Nominee of the Law Society of Kenya).
Member of the Law Society of Kenya.

Key Consultancies and Collaborations in Arbitration and ADR

Negotiated the partnership with Chartered Institute of Arbitrators UK on GPR 625 (International Commercial Arbitration) for University of Nairobi LLM students to achieve membership status without further tests, 2020 to 2023.
Consultant for IDLO, Kenya Judiciary & NCIA, Development and Alignment of Legal & Policy Framework with Aim to Deepen ADR for Access to Justice and Commercial Disputes”- January 2018.
Consultant for the Court of Justice of the Common Market for Eastern and Southern Africa (COMESA Court of Justice) to Review and Revise COMESA Court of Justice Arbitration Rules (2003) – January 2018.
Consultant for the Commission for the Implementation of the Constitution (CIC), IDLO and the UNDP in preparing a “Report for Review of Policy, Legislation and Administrative Structures on Access to Justice: Existing Gaps and Proposed Reforms to Align with the Constitution”- 2015.
Consultant by the KENYA LAND ALLIANCE in preparing a “Review and Analysis of its draft ADR guide and Training Manual to offer guidance in resolution of land disputes”- August, 2013.

Some Books and Book Chapters Published on Arbitration and ADR

Muigua, K., Settling Disputes through Arbitration in Kenya, 4^th Edition, Glenwood Publishers, Nairobi – 2022.
Muigua, K., Alternative Dispute Resolution and Access to Justice in Kenya, Glenwood Publishers, Nairobi – 2015.
Muigua, K., Resolving Conflicts through Mediation in Kenya, Glenwood Publishers, Nairobi – 2013.
Muigua, K., Settling Disputes through Arbitration in Kenya, Glenwood Publishers, Nairobi – 2012.
Muigua, K., Book Chapter: ‘Effectiveness of Arbitration Institutions in East Africa,’ in Onyema, E. (ed), The Transformation of Arbitration in Africa: The Role of Arbitral Institutions, (Kluwer Law International, The Netherlands, 2016).
Muigua, K., Book Chapter: Chapter 24: ‘Dispute Resolution Mechanisms for Environmental Governance,’ in Prof. Patricia Kameri-Mbote and Dr. Robert Kibugi (eds), Environmental Governance in Kenya: Implementing the Constitutional Framework, – 2020).

Some of Journal Articles Published in Arbitration and ADR

Abwunza, Allan A., Titus K. Peter, and Kariuki Muigua, “Explaining the Efffectiveness of Construction Arbitration: An Organizational Justice Perspective,” Journal of Legal Affairs and Dispute Resolution in Engineering and Construction, Volume 13, Issue 3 (2021)
Muigua, K., Managing Governance Conflicts Through Alternative Dispute Resolution in Kenya, Governance Journal, Volume 1, Issue 2, 2020, pp 91-106.
Muigua, K., Arbitration Law and the Right of Appeal in Kenya, Alternative Dispute Resolution, Volume 9, No 2, (2021), pp. 21-43.
Muigua, K., Looking Into the Future: Making Kenya a Preferred Seat for International Arbitration, Alternative Dispute Resolution, Volume 9, No 1, (2021), pp. 1-51.
Muigua, K., Africa’s Role in the Reform of International Investment Law and the Investor State Dispute Settlement (ISDS) System, Journal of Conflict Management and Sustainable Development, Volume 5, No 1, (September, 2020).
Muigua, K., ‘Promoting Sports Arbitration in Kenya,’ Chartered Institute of Arbitrators (Kenya), Alternative Dispute Resolution, Volume 8, No 1, (2020), pp. 1-30.
Muigua, K., ‘Enhancing the Court Annexed Mediation Environment in Kanya,’ Chartered Institute of Arbitrators (Kenya), Alternative Dispute Resolution, Volume 8, No 2, (2020), pp. 20-40.
Abwunza, Allan A., Titus K. Peter, and Kariuki Muigua, “Explaining Delays in Construction Arbitration: A Process-Control Model Approach,” Journal of Legal Affairs and Dispute Resolution in Engineering and Construction, Volume 12, Issue 2 (May 2020).
Muigua, K., Enhancing the Court Annexed Mediation Environment in Kenya, Chartered Institute of Arbitrators (Kenya), Alternative Dispute Resolution, 9 (1) (July, 2020).
Muigua, K., The Singapore Convention on International Settlement Agreements Resulting from Mediation: Challenges and Prospects for African States, Volume 4, No 3, (May, 2020).
Abwunza, Allan A., Titus K. Peter, and Kariuki Muigua, “Effectiveness of Arbitration in Contractual Disputes: Tension between Procedural Efficiency and Award Quality,” Journal of Legal Affairs and Dispute Resolution in Engineering and Construction 11, No. 2 (2019): 04519003.
Muigua, K. & Ombati, J., ‘Achieving expeditious Justice: Harnessing Technology for Cost Effective International Commercial Arbitral Proceedings,’ Chartered Institute of Arbitrators (Kenya), Alternative Dispute Resolution, 7(1):1-32, (April, 2019).
Muigua, K., ‘Making Mediation Work for all: Understanding the Mediation Process,’ Chartered Institute of Arbitrators (Kenya), Alternative Dispute Resolution, 7(1):120-141, (April, 2019).
Muigua, K., ‘Promoting International Commercial Arbitration in Africa,’ Chartered Institute of Arbitrators (Kenya), Alternative Dispute Resolution, Volume 5, No 2, (2017), pp. 1-27.
Muigua, K., ‘Legitimising Alternative Dispute Resolution in Kenya: Towards a Policy and Legal Framework,’ Chartered Institute of Arbitrators (Kenya), Alternative Dispute Resolution, Volume 5, No 1, (2017), pp. 74-104.
Muigua K., “The Lawyer as a Negotiator, Mediator and Peacemaker in Kenya,” Law Society of Kenya Journal, Vol. 12, No. 2, 2016, pp. 39-66.
Muigua, K., ‘Constitutional Supremacy over Arbitration in Kenya,’ Chartered Institute of Arbitrators (Kenya), Alternative Dispute Resolution, Volume 4, No 1, (2016), pp. 100-131.
Muigua, K., ‘Effective Management of Commercial Disputes: Opportunities for the Nairobi Centre for International Arbitration,’ Chartered Institute of Arbitrators (Kenya), Alternative Dispute Resolution, Vol. 4, No 1, (2016), pp. 155-180.
Muigua, K., ‘Building Legal Bridges: Fostering Eastern Africa Integration through Commercial Arbitration,’ Chartered Institute of Arbitrators (Kenya), Alternative Dispute Resolution, Vol. 3, No 1, (2015), pp.45-87.
Muigua, K., ‘Effective Justice for Kenyans: is ADR Really Alternative?’ The Law Society of Kenya Journal, Vol. II, 2015, No. 1, pp. 49-62.
Muigua, K., ‘Role of the Court Under Arbitration Act 1995: Court intervention before, pending and after Arbitration in Kenya,’ Kenya Law Review Journal, 2008-2010.

Some Presentations, Papers and Seminars Made on Arbitration

Muigua, K., Arbitration Law and the Right of Appeal in Kenya, A Paper presented at the Law Society of Kenya Continuing Professional Development Webinar on Arbitration held on 13th November 2020.
Muigua, K., Adopting the Singapore Convention in Kenya: Insight and Analysis, Working Paper for the Singapore Convention Webinar Held on 19th August 2020.
Muigua, K., Virtual Arbitration Amidst COVID-19: Efficacy and Checklist for Best Practices, A Discussion Paper for the Chartered Institute of Arbitrators Kenya Branch (CIArb-K) Webinar ADR Talk Series 8 held on 28thMay 2020.
Muigua, K., Promoting Sports Arbitration in Africa, a discussion Paper for the Chartered Institute of Arbitrators (Kenya Branch) 2nd annual lecture on the theme ‘Promoting Sports Arbitration in Africa’ held on Thursday 28th November, 2019 in Nairobi, Kenya.
Muigua, K., Negotiating Dispute Settlement terms in Bilateral Investment Treaties (BITS) and Economic Partnership Agreements (EPAs), Paper Presented at the Nairobi International Arbitration Conference, held at the Intercontinental Hotel, Nairobi-Kenya, on 4th – 6th December, 2016.
Muigua, K., Reawakening Arbitral Institutions for Development of Arbitration; Arbitration Institutions in Africa Conference, 2015, Addis Ababa, Ethiopia. Theme: The Role of Arbitration Institutions in the Development of Arbitration in Africa.
Muigua, K., Building Legal Bridges: Fostering Eastern Africa Integration through Commercial Arbitration, Paper presented, at the 3rd Annual East Africa International Arbitration Conference 2015 held on 9th and 10th April, 2015 at Hyatt Regency Hotel, Dar Es Salaam-Tanzania.
Muigua, K., ADR: The Road to Justice in Kenya, Chartered Institute of Arbitrators-Kenya Branch International Arbitration Conference, Conference held on 7th & 8th August, 2014 at Sarova Whitesands Hotel, Mombasa, Kenya.
East Africa International Arbitration Conference Muigua, K., Promoting International Commercial Arbitration in Africa, the East Africa International Arbitration Conference, held on 28-29 July 2014, at Fairmont the Norfolk, Nairobi.
Muigua, K., Making East Africa a Hub for International Commercial Arbitration: A Critical Examination of the State of the Legal and Institutional Framework Governing Arbitration in Kenya, Kigali Arbitration Centre (KIAC), Arbitration workshop for EAC region 24th -25th May 2013.
Muigua, K., Overview of Arbitration and Mediation in Kenya, Stakeholder’s Forum on Establishment of Alternative Dispute Resolution (ADR) Mechanisms for Labour Relations in Kenya, held at the Kenyatta International Conference Centre, Nairobi, on 4th – 6 th May, 2011.

Some Research and Scholarship Supervised on Arbitration

Allan A. Abwunza, Developing A Framework for Effective Arbitration Of Contractual Disputes In The Construction Industry of Kenya,’ Jomo Kenyatta University of Agriculture & Technology. (Completed PhD Thesis)
Sikuta Moses, The Implications of Public Policy Considerations in the Enforcement of International Arbitral Awards in Kenya (Ongoing PhD Thesis)
Jimmy Winny Mwende, A Critique of Section 6 of the Arbitration Act’, University of Nairobi. 2014 (Completed LLM Thesis).
Ajima Daisy Owuor, Making Kenya a Hub for Arbitration of International Financial Services Disputes’, University of Nairobi. 2014 (Completed LLM Thesis).
Gad Gathu, A Critique of Kenyan Judiciary’s Capacity for Enforcement of International Commercial Arbitration Awards, University of Nairobi. 2015 (Completed LLM Thesis).
Edel Njoki Michuki, Arbitration Practice and Access to Justice in Kenya, University of Nairobi, 2015 (Completed LLM Thesis).
Kilonzo Kituku, Facilitating International Arbitration in Kenya’, University of Nairobi (Completed LLM Thesis).
Anne Wanjiru Mwangi, A Critique of the Contribution of International Commercial Arbitration Toward the Realisation of the Right of Access to Justice in Kenya (Completed LLM Thesis).
George Gilbert Otieno, A Critique of Arbitration Clauses/Agreement in Employment Contracts. (Completed LLM Thesis).
James Ndungu Njuguna, Arbitration as a Tool for Management of Natural Resource and Community Land Conflicts in Kenya. (Completed LLM Thesis).
Peter Mwangi Muriithi, The Place of International Arbitration in East Africa: A Case Study of the Effectiveness of the East African Court of Justice as an International Arbitral Tribunal (Completed LLM Thesis).

Conclusion

Prof. Kariuki Muigua, PhD is one of Africa’s foremost Arbitrators and ADR experts and has handled dozens of arbitration matters and disputes as a member of tribunals and panels and as counsel for parties. He is a leader in arbitration scholarship and edits several journals and periodicals in the area to promote research in dispute resolution and conflict management. As the African Regional Trustee of Chartered Institute of Arbitrators, he is at the forefront in promoting adoption of arbitration as the preferred mode of dispute resolution especially by young professionals and businesses. Recently, he sponsored Prof. Kariuki Muigua Annual ADR Essay Award to encourage university students to research, study and write on ADR and Arbitration in Africa.

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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.

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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.

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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.