News & Analysis

Way Forward in Achieving Right of Health for All

Published

1 year ago

February 17, 2024

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Photo Courtesy: WHO

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)*

In order to achieve good health and well-being for all, it is important for all countries to foster Universal Health Coverage (UHC). UHC means that all people have access to the full range of quality health services they need, when and where they need them, without financial hardship. According to the WHO, UHC covers the full continuum of essential health services, from health promotion to prevention, treatment, rehabilitation, and palliative care across the life course. UHC is vital in fostering the right to health and enhancing the economic and social development of all nations.

It has been pointed out that to deliver UHC, opportunities exist to ensure equity in access to health services – everyone who needs services gets them; the quality of health services are good enough to improve the health of those receiving services; people are protected against financial-risk, ensuring that the cost of using services does not put people at risk of financial harm; and accountability to translate commitments relating to access, quality, and financial protection into action through transparency and citizen participation. Countries should therefore pursue UHC including enhancing health insurance coverage in order to achieve good health and well-being for all. In addition, there is need to improve health infrastructure in all countries.

The importance of quality health services, both as a development goal in its own right and a foundation for achieving inclusive growth and other development goals, is widely recognized. It is therefore essential for countries to invest in health infrastructure including health facilities, medicine and modern technology and equipment. Further, it is also pertinent to enhance human resource development in the health sector. It has correctly been observed that proper management of human resources is critical in providing high quality health care. However, this is often not achieved in most countries including Kenya as evidenced by the frequent cases of strikes by health care providers which are attributed to factors such as limited career opportunities, insufficient workforce, and low remuneration among others.

Effective human resources management strategies are greatly needed to achieve better outcomes in the health sector around the world. It is thus important for countries to pursue strategies including recruiting and continuously training more health workers in order to ensure adequate staff in the sector; having a clear policy and guidelines on how to protect and compensate health workers including a specific medical policy given their exposure in the line of duty; and avoid frequent strikes in order to enhance health human resources. It is also imperative to increase health financing. WHO posits that health financing is a core function of health systems that can enable progress towards universal health coverage by improving effective service coverage and financial protection.

Carefully designed and implemented health financing policies can help enhance accessibility, affordability and quality of health services. It has been asserted that there is an urgent need to accelerate health financing in Africa in order to foster the right to health and achieve good health and well-being for all. Under the Abuja Declaration, African countries committed themselves to allocate at least 15% of their annual budgets to the improvement of the health sector. It is therefore imperative to realize the target of the Abuja Declaration in order to enhance health financing and improvement of the health sector in Africa.

Countries should further embrace health financing through initiatives such as strengthening health financing structures, pursuing Public Private Partnerships and introducing supportive and flexible statutory and regulatory laws to support the health financing reforms and outcomes. It is also paramount for the world and countries to effectively combat illnesses and diseases. The COVID-19 pandemic posed and continues to pose challenges to people’s health and wellbeing globally and is impeding progress in meeting SDG 3 targets. Further, the world has struggled with health issues including HIV, tuberculosis and malaria which hinder achievement of good health and well-being for all.

It is therefore important for countries to strengthen preparedness for pandemics and other emergencies. Such measures include ensuring equitable access to safe and effective vaccines; awareness campaigns on healthy living to reduce incidences of noncommunicable diseases; and enhancing supportive and synergistic community investments in related sectors such as economic empowerment, water, sanitation and hygiene Another key measure in achieving good health and well-being for all is fostering research and development.

Health research and development is important to the health sector since it provides health practitioners and health system investors with innovation and associated evidence for prevention interventions, effective treatments and care pathways. It is therefore important to ensure the prioritization and adequate investment in research for health in order to promote technology and innovation in health care delivery. Further, it has been observed that there is need for countries to strengthen and support research in health especially on emerging diseases and support evidence based research that would inform full rollout of UHC strategies.

In addition, it is essential to foster gender equality in the health sector in order to achieve good health and well-being for all especially women and girls. Women face peculiar health concerns as a result of pregnancy and child birth which need to be met in order to foster their good health and wellbeing.However, for many women and girls, gender discrimination systematically undermines their access to health care, for reasons that include fewer financial resources and constraints on mobility among others. Further to SDG 3, SDG 5 urges countries to ensure that women have universal access to sexual and reproductive health and reproductive rights. It is therefore vital for countries to foster laws and practices which enhance women’s access to sexual and reproductive health-care services in order to realize their good health and well-being.

Finally, is vital to realize the right to a clean, healthy and sustainable environment in order to achieve good health and well-being for all. The United Nations Environment Programme correctly states that a clean environment is essential for human health and well-being. Environmental problems including climate change and environmental degradation as a result of air and water pollution as well as poor management of hazardous chemicals and waste can undermine good health and well-being and result in health hazards and diseases. It is therefore essential for countries to realize the right to a clean, healthy and sustainable environment in order to achieve good health and well-being for all. Countries should therefore address concerns which affect the attainment of the right to a clean, healthy and sustainable environment such as climate change, unsustainable management and use of natural resources, environmental degradation, pollution and poverty.

Countries should further pursue Sustainable Development in order to achieve environmental sustainability, economic growth and social progress. Sustainable Development has the ability to strike a balance between anthropocentric and ecocentric approaches towards the right to a clean, healthy and sustainable environment by promoting human rights such as the right to food, the right to clean water and sanitation, the right to affordable and clean energy and the right to health while simultaneously ensuring sound environmental protection and management. Through the foregoing among other measures, countries will be able to achieve good health and well-being for all.

*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 2023) 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 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

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African Union., ‘Abuja Declaration on HIV/AIDS, Tuberculosis and other Related Infectious Diseases.’ Available at https://au.int/sites/default/files/pages/32894- file-2001-abuja-declaration.pdf (Accessed on 03/11/2023).

African Union., ‘African Charter on the Rights and Welfare of the Child.’ Available at https://au.int/sites/default/files/treaties/36804-treaty african_charter_on_rights_welfare_of_the_child.pdf (Accessed on 02/11/2023).

African Union., ‘Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol).’ Available at https://au.int/sites/default/files/treaties/37077-treatycharter_on_rights_of_women_in_africa.pdf (Accessed on 02/11/2023).

African Union., ‘Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Older Persons in Africa.’ Available at https://au.int/sites/default/files/pages/32900-fileprotocol_on_the_rights_of_older_persons_e.pdf (Accessed on 02/11/2023).

Amref Health Africa., ‘Universal Health Coverage (UHC).’ Available at https://amref.org/kenya/our-work/pillar-2-innovative-health-servicessolutions/universal-health-coverage/ (Accessed on 03/11/2023).

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Kenya Universal Health Coverage Policy 2020-2030., Available at http://guidelines.health.go.ke:8000/media/Kenya_Universal_Health_Coverage_Policy_2020_ _2030.pdf (Accessed on 02/11/2023).

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Muigua. K., ‘Ensuring Healthy Lives and Well-being for All Kenyans.’ Available at https://kmco.co.ke/wp-content/uploads/2020/12/Ensuring-Healthy-Lives-andWellbeing-for-All-Kenyans-Kariuki-Muigua-December-2020.pdf (Accessed on 03/11/2023).

Muigua. K., ‘Realizing the Right to a Clean, Healthy and Sustainable Environment.’ Available at https://kmco.co.ke/wp-content/uploads/2023/06/Realizing-the-Right-to-a-Clean-Healthy-and-Sustainable-Environment.pdf (Accessed on 02/11/2023).

Muigua.K., ‘Nurturing Our Environment for Sustainable Development.’ Glenwood Publishers Limited, 2016.

Munyua. A., & Olalere. N., ‘Public Financing for Health in Africa: 15% of an Elephant is not 15% of A Chicken.’ Available at https://www.un.org/africarenewal/magazine/october-2020/public-financinghealth-africa-when-15-elephant-not-15-chicken (Accessed on 03/11/2023).

Nampewo. Z., Mike. J., & Wolff. J., ‘Respecting, Protecting and Fulfilling the Human Right to Health.’ International Journal of Equity in Health, Volume 21, No. 36 (2022).

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State Department for Economic Planning., ‘Is Kenya on Track Towards Achievement of SDG 3? An analysis of Health Indicators in Kenya.’ Available at https://www.planning.go.ke/wp-content/uploads/2022/02/ UHC-REPORTammended-1.pdf (Accessed on 02/11/2023).

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United Nations Women., ‘SDG 3: Ensure Healthy Lives and Promote Well-Being for All at All Ages.’ Available at https://www.unwomen.org/en/news/infocus/women-and-the-sdgs/sdg-3-good-health-well-being (Accessed on 03/11/2023).

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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.

Kiragu Wathuta & Company Advocates

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Kiragu Wathuta & Company Advocates was established in 2013 by Mr. Kiragu Wathuta, an Advocate of the High Court of Kenya called to the bar in the year 2009. Our firm is run by an organized team of proffessionals who are highly skilled and widely exposed to diverse areas of law and the industry in general.

We have built a name for PROFESSIONALISM AND EXPERTISE in various disciplines of legal services including but not limited to civil and commercial litigation, conveyance and property matters as well as commercial and corporate law practice.

We provide value-added service in consonance with each individual client’s needs. For our clients, their interests are paramount and the client is our number one priority.

Our Portfolio of Clients is drawn from Property Owners, Developers, Investors and Joint Ventures, Corporate Entities, Financial institutions, Parastatals, Manufacturing Companies, Mortgage Institutions as well as individuals. We continue to endear our services to reach beyond our borders.

News & Analysis

What is Carbon Markets?

Published

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.

MMA Advocates LLP

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As one of the top law firms in Nairobi, MMA Advocates is renowned for its proactive strategy and innovative legal lawyer advice. Our firm is committed to delivering strategic assistance that not only tackles current difficulties but also equips clients for future legal trends and advancements. As top lawyers in Nairobi Kenya, we take great satisfaction in our ability to combine in-depth legal knowledge with creative problem-solving. We keep a close eye on business trends and legal advancements to deliver timely guidance that enables our clients to make wise choices.

Our main goal as MMA Advocates is to establish long-lasting partnerships based on integrity, decency, and reliability. Since every client’s circumstance is unique, our best advocates in Kenya offer timely service and individualized attention at every stage of our collaboration. We make sure our clients are informed and empowered throughout their legal journey because we value openness and transparency in communication. In every case we take on, we are deeply committed to obtaining positive results and client satisfaction. This is just one aspect of our unwavering commitment to quality.

Whether you are a startup negotiating regulatory obstacles, an established corporation expanding, or a private citizen seeking legal assistance on personal problems, our Best Corporate Lawyers in Kenya are dedicated to becoming your legal partner. Our expertise include Commercial Litigation, Real Estate & Development, Fintech, Public Procurement (Public Private Partnerships), Project Finance, Public Law Litigation, Legal Audits & Compliance Advisory and Crisis Management.

We hope to arm you with the legal know-how and strategies needed to achieve your objectives. Our team enjoys taking on challenging legal matters with creativity and strategic understanding, protecting your rights and effectively achieving your goals. With a thorough comprehension of both regional laws and global norms, we are prepared to confidently and competently lead you through the complexities of corporate law.

In the intensely competitive legal arena, our tailored legal and strategic solutions distinguish us. We value depth over breadth, guaranteeing our clients our full dedication and unparalleled efficiency. Where many spread themselves wide, we narrow our focus to a select few of the most challenging cases. We tread the path less traveled.

To find out more about how MMA Advocates in Nairobi Kenya can help you with your legal issues, get in touch with us. With our team of committed professionals and our standing as one of the top law firms in Nairobi, we are well-positioned to offer outcomes that surpass expectations and guarantee your success in a legal environment that is always changing.

News & Analysis

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

Published

11 months ago

April 28, 2024

Kariuki Muigua & Company

The Alternative Dispute Resolution (ADR) Journal, Volume. 12, No.3, 2024 covers pertinent and emerging issues across all ADR mechanisms. This volume exposes our readers to a variety of salient topics and concerns in ADR including Building Peace in Africa, Public Policy as a Ground of Setting-Aside an Arbitral Award, Ethics, Integrity and Best Practice in Mediation, Accessing Justice in Kenya, Sports Arbitration, ESG Arbitration, Arbitration of Investor-State Dispute in Kenya, Article 159(2) of the Constitution of Kenya 2010 and issuance of interim measures by Arbitral Tribunals. The ADR Journal is a publication of the Chartered Institute of Arbitrators, Kenya Branch. It provides a platform for scholarly debate and in-depth investigations into both theoretical and practical questions in Alternative Dispute Resolution.

The journal is edited by Professor of Law at the University of Nairobi, Faculty of Law Hon Prof. Kariuki Muigua, a distinguished law scholar, an accomplished mediator and arbitrator with a Ph.D. in law from the University of Nairobi and widespread training and experience in both international and national commercial arbitration and mediation. Prof. Muigua is a Fellow of Chartered Institute of Arbitrators (CIArb)- Kenya chapter and also a Chartered Arbitrator. He is a member of the Permanent Court of Arbitration, The Hague. He also serves as a member of the National Environment Tribunal. He has served as the Chartered Institute of Arbitrator’s (CIArb- UK) Regional Trustee for Africa from 2019 -2022.

In the paper “Building Peace in Africa through Alternative Dispute Resolution” Hon. Prof. Kariuki Muigua critically discusses the role of Alternative Dispute Resolution (ADR) mechanisms in peace building in Africa. The paper argues that ADR mechanisms can play a fundamental role in building peace in Africa. The paper further posits that ADR mechanisms are able to enhance sustainable peace in Africa due to their focus on reconciliation and restorative justice. It proposes solutions towards building peace in Africa through ADR.

In “the Emergence of the International Commercial Court: A Threat to Arbitration of Investor-State Dispute in Kenya” Marion Injendi Wasike and Dr. Kenneth W. Mutuma argue that the proliferation of international commercial courts, including their introduction in Kenya, necessitates a thorough analysis of their implications on arbitration’s role in investor-state disputes. By juxtaposing these emerging judicial entities against traditional arbitration paradigms, the discussion aims to unravel the complexities and potential shifts in dispute resolution preferences, highlighting the balance between innovation in legal adjudication and the sustenance of arbitration’s revered position in the international legal order.

Kamau Karori SC, MBS in “Striking a Balance: A Delicate Dance Between Sanctity and Scrutiny” notes that the continuing debate —between upholding the inviolability of arbitral awards and judicial intervention in cases of egregious injustice points to the need for delicate balancing between non-interference and the need to correct unmistakably unjust awards. The urgency of this discourse is informed by the need to prevent consumers or potential consumers of arbitration services opting to exclude arbitration clauses due to perceived deficiencies. The article seeks to navigate the genesis of the debate, delicately dissect the different perspectives, and draw comparisons with global practices.

The article “Reforming Kenya’s Law on Probation and Aftercare Services to Promote Alternative Dispute Resolution” by Michael Sang engages in a comprehensive exploration of Kenya’s Probation of Offenders Act within the context of the growing role of Alternative Dispute Resolution (ADR) principles in the nation’s criminal justice system. Drawing inspiration from international legal instruments such as “The Beijing Rules,” “Bangkok Rules,” and “Tokyo Rules,” the study evaluates the Act’s provisions, strengths, and limitations. It concludes with a call for thoughtful reforms that align Kenya’s criminal justice system with international standards, emphasizing a balanced and compassionate approach to justice.

The “Upholding Ethics, Integrity and Best Practice in Mediation” by Hon. Prof. Kariuki Muigua, OGW critically discusses the need for standardization of mediation practice in Kenya by adopting best practices. It examines some of the challenges facing mediation practice in Kenya. It is also explores measures adopted towards fostering best practices in mediation at both the global and national level. The paper further suggests recommendations aimed at upholding ethics, integrity and best practice in mediation. In “Exploring the Role of Mediation in Promoting Small and Medium Enterprises (SMEs) and Fostering Economic Growth in Kenya” Atundo Wambare offers an in-depth analysis of the use of mediation in promoting the growth of small and medium enterprises (SME’s). He makes recommendations on how best mediation can be harnessed as a tool for economic growth in Kenya.

James Njuguna and Nyamboga George Nyanaro in “Compulsory Resolution or Autonomy Erosion? The Debate on Mandatory Sports Arbitration delve into the contentious issue of mandatory sports arbitration, questioning its role as a potential future pathway for dispute resolution. Their research examines the implications of compulsory arbitration on athletes’ autonomy, juxtaposing it with the benefits of expedited dispute resolution.

Paul Ngotho in “Constitution of Kenya 2010 Article 159.2.(c): Ancestry, Anatomy, Efficacy & Legacy” traces the rather odd origin and everlasting effect of the often-cited Article 159.2.(c) of the Constitution of Kenya 2010. It acknowledges the central role played by two members of the Chartered Institute of Arbitrators Kenya Branch, quietly and privately, away from the mainstream constitution making process. One of them chairman of the Branch, the other the Minister of Justice, National Cohesion and Constitutional Affairs.

David Onsare in “Navigating The ESG Maze: Emerging Trends in Arbitration and Corporate Accountability” embarks on a timely exploration of the dynamic interplay between Environmental, Social and Governance (ESG) factors and arbitration, a field gaining critical importance in the realm of corporate accountability. By offering a comprehensive view of the complexities and practical implications of ESG in arbitration, the article serves as a crucial guide for legal professionals navigating the evolving landscape of corporate responsibility and arbitration. In “Public Policy as a Ground of Setting-Aside an Arbitral Award: Musings on the Centurion Engineers Civil Appeal Judgment”

Ibrahim Kitoo argues a case for upholding of public policy as a ground for the nonrecognition, non-enforcement and setting aside of an arbitral award in cases where to recognise and enforce such awards proves to be a clear violation of the law and against the public good. Juvenalis Ngowi in “Arbitral Tribunals: Do they have the power to issue interim measures during the proceedings?” discusses the powers of the Arbitral Tribunal to grant such orders and examines some procedural rules which empower arbitrators to issue such orders, the scope of those powers, and the factors to be considered when granting interim measures in the arbitral proceedings.

In “Examining the Efficacy of Mediation as A Tool for Accessing Justice in Kenya: Opportunities, Challenges, and Future Perspectives” Murithi Antony undertakes a thorough examination of mediation as a form of ADR in the Kenyan context. He identifies opportunities arising from the integration of mediation into the country’s legal system and explores barriers impeding its widespread adoption. The article concludes with a resounding call to action for all stakeholders to champion the use of mediation collaboratively and proactively, given its proven efficacy in dispute resolution.

Kariuki Muigua & Company

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Kariuki Muigua & Company Advocates is a Top-Tier Kenyan law firm situated at the heart of Nairobi city in Kenya. We are a broad-based practice with a reputation for offering a full range of quality services to our domestic and international clients.

At KM&CO, we take pride in offering personalized attention to our diverse clientele. Our practice aspires to offer efficient and cost-effective legal solutions that meet our esteemed clients’ needs in a timely and competent manner.

KM&CO was founded in 1993 by the current senior Advocate, Dr. Kariuki Muigua. It is based in the Central Business District of Nairobi at the Pioneer Assurance House located opposite 7th August Bomb Blast Memorial Park enjoying the convenience of close proximity to major financial, commercial and governmental institutions.

We are open for consultations with our clients worldwide; we have lawyers on standby for 24 hours to cover diverse time zones that impact on our global clients.