Connect with us

News & Analysis

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

Published

on

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, 4th 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.

News & Analysis

What is Carbon Markets?

Published

on

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;

  1. A Government establishes a limit on the total amount of greenhouse gas emission/pollution is allowed within its geographical limits;
  2. A grant, say permissions are created and distributed to eligible participants. This allowance represents the right to emit a certain amount of greenhouse gas;
  3. 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.
  4. 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.
  5. 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.

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.

Continue Reading

News & Analysis

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

Published

on

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 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.

Continue Reading

News & Analysis

Way Forward in Applying Collaborative Approaches Towards Conflict Management

Published

on

By Hon. Prof. Kariuki Muigua, OGW, PhD, C.Arb, FCIArb is a Professor of Environmental Law and Dispute Resolution at the University of Nairobi, Member of Permanent Court of Arbitration, Leading Environmental Law Scholar, Respected Sustainable Development Policy Advisor, Top Natural Resources Lawyer, Highly-Regarded Dispute Resolution Expert and Awardee of the Order of Grand Warrior (OGW) of Kenya by H.E. the President of Republic of Kenya. He is the Academic Champion of ADR 2024, the African ADR Practitioner of the Year 2022, the African Arbitrator of the Year 2022, ADR Practitioner of the Year in Kenya 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 Kenya’s First Two Climate Change Law Book: Combating Climate Change for Sustainability (Glenwood, Nairobi, October 2023), Achieving Climate Justice for Development (Glenwood, Nairobi, October 2023), Promoting Rule of Law for Sustainable Development (Glenwood, Nairobi, January 2024) and Actualizing the Right to a Clean and Healthy Environment (Glenwood, Nairobi, March 2024)*

It is necessary to embrace and utilize collaborative approaches in managing conflicts. These techniques include mediation, negotiation, and facilitation. These mechanisms are effective in managing conflicts since they encourage parties to embrace and address disagreements through empathy and listening towards mutually beneficial solutions. Collaborative approaches also have the potential to preserve relationships, build trust, and promote long term positive change. They also ensure a win-win solution is found so that everyone is satisfied which creates the condition for peace and sustainability. These approaches are therefore ideal in managing conflicts. It is therefore important to embrace collaborative approaches in order to ensure effective management of conflicts.

In addition, it is necessary for third parties including mediators and facilitators to develop their skills and techniques in order to enhance the effectiveness of collaborative approaches towards conflict management. For example, it has correctly been observed that mediators and facilitators should listen actively and empathetically in order to assist parties to collaborate towards managing their dispute. Therefore, when a dispute arises, the first step should involve listening to all parties involved with an open mind and without judgment. This should entail active listening, which means paying attention to both verbal and nonverbal cues and acknowledging the emotions and perceptions involved.

It has been observed that by listening empathetically, a third party such as a mediator of facilitator can understand each person’s perspective and start to build a foundation for resolving the conflict through collaboration. In addition, while collaborating towards conflict management, it is necessary to encourage and help parties to focus on interests and not positions. It has been pointed out that focusing positions can result in a standstill which can delay or even defeat the conflict management process. However, by identifying and addressing the underlying interests parties can find common ground and collaborate towards coming up with creative solutions towards their conflict.

Mediators and facilitators should also assist parties to look for areas of agreement or shared goals. Identifying a common ground can build momentum and create a positive environment for resolving the conflict. Further, in order to ensure the effectiveness of collaborative approaches in conflict management, it is necessary to build strong collaboration. It has been asserted that strong collaboration can be achieved by establishing a shared purpose, cultivating trust among parties, encouraging active participation by all parties, and promoting effective communication.

Strong collaboration enables parties to develop trust between and among themselves and strengthen communication channels between the various parties. It also helps to generate inclusive solutions that arise from wider stakeholders’ views. Therefore while applying collaborative approaches, it is necessary for parties to foster strong collaboration by identifying common goals, building trust, ensuring that all stakeholders are involved, and communicating effectively in order to come up with win-win outcomes.

Finally, while embracing collaborative approaches in conflict management, it is necessary for parties to consider seeking help from third parties if need arises. For example, negotiation is always the first point of call whenever a conflict arises whereby parties attempt to manage their conflict without the involvement of third parties. It has been described as the most effective collaborative approach towards conflict management since it starts with an understanding by both parties that they must search for solutions that satisfy everyone.

It enables parties to a dispute to come together to openly discuss the issue causing tension, actively listen to each other, and come up with mutually satisfactory solutions. However, it has been correctly observed that negotiation may fail especially if the conflict is particularly complex or involves multiple parties due to challenges in collaborating. In such circumstances, where negotiation fails, parties should consider resorting to other collaborative approaches such as mediation and facilitation where they attempt to manage the conflict with the help of a third party. A mediator or facilitator can assist parties to collaborate and continue with the negotiations and ultimately break the deadlock.

*This is an extract from Kenya’s First Clean and Healthy Environment Book: Actualizing the Right to a Clean and Healthy Environment (Glenwood, Nairobi, January 2024) by Hon. Prof.  Kariuki Muigua, OGW, PhD, Professor of Environmental Law and Dispute Resolution, 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 2023) and Member of Permanent Court of Arbitration nominated by Republic of Kenya and Academic Champion of ADR 2024. Prof. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Prof. Kariuki Muigua teaches Environmental Law and Dispute resolution at the University of Nairobi School of Law, The Center for Advanced Studies in Environmental Law and Policy (CASELAP) and Wangari Maathai Institute for Peace and Environmental Studies. He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Prof. 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. Prof. 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 2024 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

Bercovitch. J., ‘Conflict and Conflict Management in Organizations: A Framework for Analysis.’ Available at https://ocd.lcwu.edu.pk/cfiles/International%20Relations/EC/IR403/Conflict.ConflictManagementinOrga nizations.pdf (Accessed on 01/03/2024).

Bercovitch. J., ‘Mediation Success or Failure: A Search for the Elusive Criteria.’ Cardozo Journal of Conflict Resolution, Vol. 7, p 289.

Bloomfield. D., ‘Towards Complementarity in Conflict Management: Resolution and Settlement in Northern Ireland,’ Journal of Peace Research., Volume 32, Issue 2.

Burrell. B., ‘The Five Conflict Styles’ Available at https://web.mit.edu/collaboration/mainsite/ modules/module1/1.11.5.html (Accessed on 01/03/2024).

Demmers. J., ‘Theories of Violent Conflict: An Introduction’ (Routledge, New York, 2012).

Diana. M., ‘From Conflict to Collaboration’ Available at https://www.pmi.org/learning/library/conflict-collaboration-beyond-projectsuccess-1899 (Accessed on 01/03/2024).

Food and Agriculture Organization., ‘Collaborative Conflict Management for Enhanced National Forest Programmes (NFPs)’ Available at https://www.fao.org/3/i2604e/i2604e00.pdf (Accessed on 01/03/2024).

International Organization for Peace Building., ‘Natural Resources and Conflict: A Path to Mediation.’ Available at https://www.interpeace.org/2015/11/naturalresources-and-conflict-a-path-to-mediation/ (Accessed on 01/03/2024).

Isenhart. M.W., & Spangle. M., ‘Summary of “Collaborative Approaches to Resolving Conflict” ‘ Available at https://www.beyondintractability.org/bksum/isenhart-collaborative (Accessed on 01/03/2024).

Kaushal. R., & Kwantes. C., ‘The Role of Culture and Personality in Choice of Conflict Management Strategy.’ International Journal of Intercultural Relations 30 (2006) 579– 603.

Leeds. C.A., ‘Managing Conflicts across Cultures: Challenges to Practitioners.’ International Journal of Peace Studies, Volume 2, No. 2, 1997.

May. E., ‘Collaborating Conflict Style Explained In 4 Minutes’ Available at https://www.niagara institute.com/blog/collaborating-conflict-style/ (Accessed on 01/03/2024).

Miroslavov. M., ‘Mastering the Collaborating Conflict Style In 2024’ Available at https://www.officernd.com/blog/collaborating-conflictstyle/#:~:text=It’s%20one%20of%20the%20strat egies,their%20underlying%20needs %20and%20interests. (Accessed on 01/03/2024).

Muigua. K & Kariuki. F., ‘ADR, Access to Justice and Development in Kenya.’ Available at http://kmco.co.ke/wp-content/uploads/2018/08/ADR-access-tojustice-and-development-inKenyaRevised-version-of-20.10.14.pdf (Accessed on 01/03/2024).

Muigua. K., ‘Alternative Dispute Resolution and Access to Justice in Kenya.’ Glenwood Publishers Limited, 2015.

Muigua. K., ‘Reframing Conflict Management in the East African Community: Moving from Alternative to ‘Appropriate’ Dispute Resolution.’ Available at https://kmco.co.ke/wpcontent/uploads/2023/06/ Reframing-ConflictManagement-in-the-East-African-CommunityMoving-from-Alternative-toAppropriate-Dispute-Resolution (Accessed on 01/03/2024).

Muigua. K., ‘Resolving Conflicts through Mediation in Kenya.’ Glenwood Publishers Limited, 2nd Edition., 2017.

Quain. S., ‘The Advantages & Disadvantages of Collaborating Conflict Management’ Available at https://smallbusiness.chron.com/advantagesdisadvantages-collaborating-conflict-management-36052.html (Accessed on 01/03/2024).

Samuel. A., ‘Is the Collaborative Style of Conflict Management the Best Approach?’ Available at https://www.linkedin.com/pulse/collaborative-style-conflictmanagement-best-approach-samuel-ansah (Accessed on 01/03/2024).

United Nations., ‘Land and Conflict’ Available at https://www.un.org/en/landnatural-resources-conflict/pdfs/GN_ExeS_Land%20and%20Conflict.pdf (Accessed on 01/03/2024).

Weiss. J., & Hughes. J., ‘Want Collaboration?: Accept—and Actively Manage— Conflict’ Available at https://hbr.org/2005/03/want-collaboration-accept-andactively-manage-conflict (Accessed on 01/03/2024).

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.

Continue Reading

Trending