News & Analysis

The Meaning of Environmental Multilateralism

Published

1 year ago

February 28, 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)*

Achieving sustainability has become a matter of urgent global priority in light of environmental challenges facing the planet. It has been pointed out that the world is facing mounting problems including environmental challenges such as climate change, together with issues of poverty, increasing disparity between societies and the tensions brought by social inequalities creating the need for sustainability. Further, according to the United Nations Environment Programme (UNEP), the world is facing a triple planetary crisis of climate change, biodiversity loss, and pollution which challenges have heightened the importance of forging a new relationship between people and the planet towards achieving sustainability.

Sustainability has been defined as creating and maintaining the conditions under which humans and nature can exist in productive harmony to support present and future generations. The need to strike a balance between the environmental, social and economic facets of development towards sustainability gave rise to the concept of Sustainable Development. The idea of Sustainable Development refers to development that meets the needs of the present without compromising the ability of future generations to meet their own needs. This concept seeks to foster sustainability by promoting environmental protection, economic development and social progress.

It has been adopted as the global blueprint for sustainability as envisioned under the United Nation’s 2030 Agenda for Sustainable Development which represents a shared blue print for peace and prosperity for people and the planet in the quest towards the ideal of Sustainable Development. The Agenda envisions attainment of the ideal of Sustainable Development through 17 Sustainable Development Goals (SDGs) which seek to strike a balance between social, economic and environmental facets of sustainability.

Various strategies have been embraced towards achieving sustainability and the SDGs at local, national, regional, continental, and global levels. One of the key tools that is being advocated towards sustainability is environmental multilateralism. It has been argued that the global challenges facing the planet including climate change can only be addressed through mutual cooperation in the form of environmental multilateralism.

Multilateralism refers to a situation in which different countries collaborate with the main aim of providing solutions for problems facing them. It has also been defined as collaboration between several countries in pursuit of a common goal, where other parties such as civil society or the private sector may also be involved. Multilateralism is based on collaboration between several countries to achieve common objectives, involving continuous negotiation and dialog between member states of an international or regional organization with the aim of finding consensual solutions to global challenges.

It has been asserted that multilateralism plays an essential role in bringing countries together and establishing a common strategy with one goal: safeguarding the planet. It has also been pointed out that global challenges facing the planet such as climate change, migration, poverty, inequalities among nations, and opportunities and risks of new technologies can only be addressed through mutual cooperation in form of multilateralism. In addition, it has been observed that in an increasingly interconnected world, multilateralism has become a key factor in dealing with transnational problems and guaranteeing global stability and Sustainable Development.

Multilateralism is very pertinent in environmental protection19. It has been asserted that environmental protection has become an urgent global concern and needs a joint effort from all nations to achieve significant changes. According to UNEP, addressing the triple planetary crisis of climate change, nature and biodiversity loss, and waste and pollution, as well as other global environmental challenges, requires efficient international cooperation through environmental multilateralism. It points out that despite efforts by the international community, environmental degradation is continuing hence the need to unite forces at all levels to address the impacts and drivers of environmental degradation more effectively through strengthening environmental multilateralism.

It has been pointed out that reinvigorated multilateralism is a vital tool for ensuring that national efforts join up to fix global problems. Among these global challenges whose management would be potentially easier through multilateral cooperation, many are environmental. It has been argued that multilateralism not only represents the most efficient, most effective, and most egalitarian approach to addressing global environmental issues, but it is quite simply the only approach that brings with it the authority, legitimacy, and resources required to tackle so vast and complex environmental problems.

Environmental multilateralism is vital in helping develop international measures to preserve and improve the quality of the environment and the sustainable management of global natural resources; and of promoting an international system based on stronger multilateral environmental cooperation and good global environmental governance. It is therefore necessary to strengthen environmental multilateralism for sustainability.

There has been progress towards strengthening environmental multilateralism through MEAs, regional environmental agreements, and institutions, and processes that address environmental concerns at the international level such as UNEA, UNEP, IPCC. However, environmental multilateralism faces several concerns including implementation of and compliance with the MEAs.

As a result, it is necessary to (re) invigorate environmental multilateralism in order to achieve sustainability. This can be realized through strengthening implementation of and compliance with the MEAs; enhancing monitoring of international and regional environmental commitments in order to promote accountability; strengthening the roles of international bodies such as UNEP in order to bolster their role in environmental governance; consolidating the many MEAs into a coherent, coordinated and efficient legal framework; and reforming the environmental multilateralism system in order to ensure inclusivity and participation of all stakeholders. (Re) invigorating environmental multilateralism for sustainability is an agenda that we must pursue for posterity.

**This is an extract from the Article: (Re) Invigorating Environmental Multilateralism for Sustainability, Available at: https://kmco.co.ke/wp-content/uploads/2024/02/Re-Invigorating-Environmental-Multilateralism-for-Sustainability.pdf (28th February 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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Convention on International Trade in Endangered Species of Wild Fauna and Flora., Available at https://cites.org/sites/default/files/eng/disc/CITES-Convention-EN.pdf (Accessed on 21/02/2024).

Convention on Wetlands of International Importance especially as Waterfowl Habitat., Available at https://www.ramsar.org/sites/default/files/documents/library/current_convention_text_e.pdf (Accessed on 21/02/2024).

East African Community., ‘Multilateral Environmental Agreements’ Available at https://www.eac.int/environment/multilateral-environmental-agreements (Accessed on 21/02/2024).

Fitzmaurice. M., ‘The Principle of Sustainable Development in International Development Law.’ International Sustainable Development Law., Vol 1.

Giovannoni. E., & Fabietti. G., ‘What Is Sustainability? A Review of the Concept and Its Applications.’ In: Busco, C., Frigo, M., Riccaboni, A., Quattrone, P. (eds) Integrated Reporting. Springer, Cham. Available at https://doi.org/10.1007/978-3-319-02168-3_2 (Accessed on 20/02/2024).

Gomes. F. T., ‘International Relations and the Environment: Practical Examples of Environmental Multilateralism’ Available at https://citeseerx.ist.psu.edu/document?repid=rep1&type=pdf&doi=aebc 354992380e45e32cce62d433adcf ba96d038 (Accessed on 20/02/2024).

Ivanov. I., ‘What Are the Core Benefits of Multilateralism at the Present Stage?’ Available at https://russiancouncil.ru/en/analytics-and-comments/analytics/what-are-the-core-benefits-ofmultilateralism-at-the-presentstage/#:~:text=Multilateralism%20is%20a%20mechanism%20for, organizations %20easily%20and%20read ily%20available (Accessed on 20/02/2024).

Karlsson-Vinkhuyzen. S., & Dahl. A., ‘Building Effective Multilateralism for the Environment’ Available at https://iefworld.org/fl/Policybrief_KarlssonVinkhuyzen_Dahl.pdf (Accessed on 20/02/2024).

Morgera. E., ‘The EU and Environmental Multilateralism: The Case of Access and Benefit-Sharing and the Need for a Good-Faith Test’ Available at https://www.researchgate.net/profile/ElisaMorgera/publication/267926423_The_EU_and_Environmental_Multilateralism_The_Case_of_Access_an d_Benefit-Sharing_and_the_Need_for_a_Good-Faith_Test/links/545d0f690cf27487b44d492d/The-EUand-Environmental-Multilateralism-The-Case-of-Access-and-Benefit-Sharing-and-the-Need-for-a-GoodFaith-Test.pdf (Accessed on 20/02/2024).

National Atmospheric Emissions Inventory., ‘United Nations Framework Convention on Climate Change (UNFCCC)’ Available at https://naei.beis.gov.uk/about/why-weestimate?view=unfccc#:~:text=One%20of %20the %20achievements%20of,are%20party%20to%20the%20C onvention. (Accessed on 21/02/2024).

One Planet Network., ‘Multilateral Environmental Agreements’ Available at https://www.oneplanetnetwork.org/SDG-12/multilateral-environmentalagreements#:~:text=Multilateral %20Environmental%20Agreements%20(MEAs)%20are,loss%20and%20p ollution%20and%20waste (Accessed on 21/02/2024).

Ramsar Convention Secretariat., ‘An Introduction to the Ramsar Convention on Wetlands, 7th ed. (previously The Ramsar Convention Manual)’ Available at https://www.ramsar.org/sites/default/files/documents/library/handbook1_5ed_introductiontoconve ntion_final_e.pdf (Accessed on 21/02/2024).

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United Nations Environment Programme., ‘Multilateral Action for a Green Post-COVID-19 Recovery’ Available at https://www.unep.org/news-and-stories/speech/multilateral-action-green-post-covid-19- recovery (Accessed on 20/02/2024).

United Nations Environment Programme., ‘The Triple Planetary Crisis: Forging a New Relationship Between People and the Earth’ Available at https://www.unep.org/news-and-stories/speech/ tripleplanetary-crisis-forging-new-relationship-between-people-and-earth (Accessed on 20/02/2024).

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United Nations., ‘Convention on Biological Diversity’ [1993] ATS 32 / 1760 UNTS 79 / 31 ILM 818 (1992) 51 Ibid, article 1 52 Ibid, articles 8 & 9 53 Convention on Biological Diversity., ‘2010 Biodiversity Target’ Available at https://www.cbd.int/2010- target/implementation/achievements.shtml#:~:text=Progress% 20in%20achieving%20the%202010%20Bio diversity%20Target&text=Protected%20area%20coverage%2 0has%20doubled,has%20improved%20since %20the%201980s. (Accessed on 21/02/2024),

United Nations., ‘Montreal Protocol on Substances that Deplete the Ozone Layer’ United Nations Treaty Series, Vol. 1522, 1-26369.

United Nations., ‘Wildlife Treaty Comes of Age — CITES Celebrates 30 Years Of Achievement’ Available at https://press.un.org/en/2005/envdev865.doc.htm#:~:text=Thanks%20to%20the%20effective%20implem entation,as%20a%20result%20of%20trade. (Accessed on 21/02/2024).

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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.