News & Analysis

The Way Forward in Managing Energy Disputes in Africa

Published

1 year ago

February 2, 2024

Admin

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 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) and Promoting Rule of Law for Sustainable Development (Glenwood, Nairobi, January 2024)*

There is need to embrace ADR mechanisms in the management of energy disputes in Africa. It has been pointed out that concerns with regard to time and cost relating to energy disputes call for swift and efficient dispute resolution in Africa, which will likely take the form of ADR methods, especially in the context of volatile economic and commercial contexts. ADR mechanisms including arbitration and mediation are therefore appropriate in the management of energy disputes in Africa. It has rightly been observed that ADR mechanisms have been practiced in Africa for many centuries. These techniques fit comfortably within traditional concepts of African justice, particularly its core values of reconciliation, peace and cohesion.

ADR mechanisms provide parties with the opportunity to manage and resolve disputes before they escalate, which can not only save time and costs but can also preserve critical business relationships especially in long term energy projects. Parties should therefore embrace ADR mechanisms including negotiation, mediation and arbitration in order to foster effective management of energy disputes in Africa.

In the case of arbitration, it is essential to address inadequate legal and institutional framework, inadequate marketing, uncertainty in drafting arbitration clauses, interference by national courts, uncertainty of costs, perception of corruption and bias against Africa. This calls for strengthening the legal and institutional capacity on arbitration in Africa, drafting of effective arbitration clauses in energy contracts, marketing Africa as a hub for arbitration, capacity building for arbitrators through education and training, limiting court intervention in arbitration to a basic and necessary minimum, and addressing the problem of corruption through good governance.

It has also been suggested that there is need to establish a unified international arbitration court for energy disputes. It has been argued that there is a need for unification of the current international arbitration mechanisms since the different arbitration procedures, subject to different procedural and substantial rules, may result in problems concerning the enforcement of the arbitral awards in local jurisdictions. Establishment of a unified international arbitration court for energy disputes will ensure that the court has the widest jurisdiction to hear the energy disputes through the most suitable procedural and substantial rules for energy-specific disputes. This will also ensure predictable, transparent, and unified arbitration mechanism for management of energy disputes.

It is also imperative for parties to embrace dispute avoidance. It has been asserted that conflict avoidance requires clear, concise, careful and proper planning of the strategy for the execution of projects. It is also about adopting a proactive conflict avoidance approach such as risk analysis, clarity in the contract documentation or partnering. It is therefore vital for players in the energy sector in Africa including energy companies to avoid or minimise the chance of disputes arising in the first instance through measures such as ensuring clear and well-drafted contracts which include workable and not overly complicated dispute resolution provisions followed by effective project management from beginning to end. Finally, there is need for the energy sector in Africa to embrace Sustainable Development.

The principle of Sustainable Development requires an integrated approach to development that takes into account environmental protection, economic development and social progress. Players in the energy sector in Africa especially multinational corporations in the oil and gas sector have on several occasions been accused of failing to adhere to the principles of Sustainable Development as evidenced by environmental concerns including the extinction of biodiversity, contamination and destruction of soil and air pollution as a result of oil spillages.

Further, multinational corporations operating in Africa including those in the energy sector have been accused of gross human rights violations, such as killings, bad labour practices and land injustices. Such practices have had an impact on economic activities, social-cultural life and human health of the affected people thus hindering the attainment of Sustainable Development. This has also led to rise of disputes between host states and investors under investment treaty arbitration with host states seeking to enforce the tenets of Sustainable Development including environmental protection and human rights against multinational corporations.

It is therefore imperative for energy companies including multinational corporations in Africa to embrace Sustainable Development by fostering social justice, environmental sustainability, alternative energy and clean technology efforts. In addition, it has been asserted that it is important for African Countries to ensure that they review and negotiate appropriately with foreign countries in order to capture the tenets of Sustainable Development including Environmental, Social and Governance (ESG) clauses in BITs. The need for Sustainable Development in the energy sector in Africa is informed by global agendas including energy transition, environmental protection and confronting climate change.

*This is an extract from the Book: Promoting Rule of Law for Sustainable Development (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 2022) and Member of Permanent Court of Arbitration nominated by Republic of Kenya. 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 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*

Africa Development Bank Group., ‘Light Up and Power Africa – A New Deal on Energy for Africa.’ Available at https://www.afdb.org/en/the-high-5/light-up-and-powerafrica-%E2%80%93-a-new-deal-on-energy-for-africa (Accessed on 04/12/2023).

Africa Union., ‘Agenda 2063: The Africa we Want.’ Available at https://au.int/sites/default/files/documents/33126-docframework_document_book.pdf (Accessed on 04/12/2023).

Ashurst., ‘Managing and Resolving Cross-Border Disputes in the Energy Sector.’ Available at https://www.ashurst.com/en/insights/managing-and-resolving-cross-borderdisputes-in-the-energy-sector/ (Accessed on 02/12/2023).

Burges-Salmon., ‘Energy Disputes Guide: Managing Risk and Avoiding Disputes in your Energy Project.’ Available at https://www.burges-salmon.com/energydisputes-guide-managing-risk-and-avoiding-disputes-in-your-energy-project (Accessed on 02/12/2023).

Clearly Gottlieb., ‘Resolving Energy Disputes in Africa Through Arbitration and Alternative Dispute Resolution (‘ADR’).’ Available at https://content.clearygottlieb.com/regions/africa-outlook/resolving-energy-disputes-in-africathrough-arbitration-and-alternative-dispute-resolution/index.html (Accessed on 02/12/2023).

Financier Worldwide Magazine., ‘FORUM: Managing Energy and Natural Resources Industry Disputes.’ Available at https://www.financierworldwide.com/forum-managingenergy-and-natural-resources-industry-disputes (Accessed on 02/12/2023).

International Centre for Settlement of Investment Disputes., ‘Annual Report: 2023.’ Available at https://icsid.worldbank.org/sites/default/files/publications/ICSID_AR2023_ENGLISH_web_ spread.pdf (Accessed on 02/12/2023).

International Energy Agency., ‘Access to Electricity.’ Available at https://www.iea.org/reports/sdg7- data-and-projections/access-to-electricity (Accessed on 04/12/2023).

International Energy Agency., ‘Africa Energy Outlook: 2022.’ Available at https://iea.blob.core.windows.net/assets/220b2862-33a6-47bd-81e9- 00e586f4d384/AfricaEnergyOutlook2022.pdf (Accessed on 04/12/2023).

International Energy Agency., ‘Africa Energy Outlook: 2022.’ Op Cit 29 Global Arbitration Review., ‘Energy Arbitration in Africa.’ Available at https://globalarbitrationreview.com/review/the-middle-eastern-and-african-arbitrationreview/2022/article/energy-arbitration-in-africa (Accessed on 06/12/2023).

Kaledzi. I., ‘How Could Ethiopia’s Dam Dispute Escalate?.’ Available at https://www.dw.com/en/how-could-ethiopias-dam-dispute-escalate/a-66798628 (Accessed on 06/12/2023).

McMahon. M., Shah. P., ‘The Rise of Renewable Energy Disputes and Arbitration.’ Available at https://www.stewartslaw.com/news/rise-of-renewable-energydisputes/ (Accessed on 02/12/2023).

Moses, ‘The Principles and Practice of International Commercial Arbitration’ 2nd Edition, 2017, Cambridge University Press.

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

Muigua. K., ‘Fusion of Mediation and Other ADR Mechanisms with Modern Dispute Resolution in Kenya: Prospects and Challenges.’ Available at http://kmco.co.ke/wpcontent/uploads/2022/11/Fusion-of-Mediation-and-Other-ADRMechanisms-with-Modern-DisputeResolution-in-Kenya-Prospects-and-Challenges.pdf (Accessed on 06/12/2023).

Muigua. K., ‘Nurturing International Commercial Arbitration in Kenya.’ Available at https://kmco.co.ke/wp-content/uploads/2021/10/Nurturing-International-CommercialArbitration-in-Kenya.pdf (Accessed on 06/12/2023).

Muigua. K., ‘Promoting International Commercial Arbitration in Africa.’ Available at http://kmco.co.ke/wp-content/uploads/2018/08/PROMOTINGINTERNATIONAL-COMMERCIALARBITRATION-IN-AFRICA.pdf (Accessed on 06/12/2023).

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Nalule. V., Olawuyi. D., ‘Introduction to International Energy Arbitration Disputes in Africa.’ The Palgrave Handbook of Arbitration in the African Energy and Mining Sectors. Palgrave Studies in Energy Transitions. Palgrave Macmillan, Cham. Available at https://doi.org/10.1007/978-3-030-96183-1_1-1 (Accessed on 06/12/2023).

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The Energy Charter Treaty., Available at https://www.energycharter.org/fileadmin /DocumentsMedia/ Legal/ECTC-en.pdf (Accessed on 06/12/2023).

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United Nations Environment Programme., ‘Our Work in Africa.’ Available at https://www.unep.org/regions/africa/ourworkafrica#:~:text=The%20continent%20has%2040%20percent,internal%20renewable%20 fresh%20water%20source (Accessed on 04/12/2023).

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United Nations., ‘Transforming Our World: The 2030 Agenda for Sustainable Development.’ Available at https://sustainabledevelopment.un.org/content/documents/21252030%20Agenda%20for%20 Sustainabl e%20Development%20web.pdf (Accessed on 04/12/2023).

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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.

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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.

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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.