News & Analysis

The Nexus between Gender Equity and Environmental Sustainability

Published

12 months ago

March 18, 2024

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By Hon. Prof. Kariuki Muigua, OGW, PhD, C.Arb, FCIArb is a Professor of Environmental Law and Dispute Resolution at the University of Nairobi, Member of Permanent Court of Arbitration, Leading Environmental Law Scholar, Respected Sustainable Development Policy Advisor, Top Natural Resources Lawyer, Highly-Regarded Dispute Resolution Expert and Awardee of the Order of Grand Warrior (OGW) of Kenya by H.E. the President of Republic of Kenya. He is the Academic Champion of ADR 2024, the African ADR Practitioner of the Year 2022, the African Arbitrator of the Year 2022, ADR Practitioner of the Year in Kenya 2021, CIArb (Kenya) Lifetime Achievement Award 2021 and ADR Publisher of the Year 2021 and Author of the Kenya’s First ESG Book: Embracing Environmental Social and Governance (ESG) tenets for Sustainable Development” (Glenwood, Nairobi, July 2023) and Kenya’s First Two Climate Change Law Book: Combating Climate Change for Sustainability (Glenwood, Nairobi, October 2023), Achieving Climate Justice for Development (Glenwood, Nairobi, October 2023), Promoting Rule of Law for Sustainable Development (Glenwood, Nairobi, January 2024) and Actualizing the Right to a Clean and Healthy Environment (Glenwood, Nairobi, January 2024)*

The term gender refers to the set of social norms, practices and institutions that regulate the relations between women and men in a society. It has also been defined as a social construct that ascribes different qualities and rights to women and men regardless of individual competence or desires. Further, the term gender is also used to refer to the socially-constructed expectations about the characteristics, aptitudes and behaviours associated with being a woman or a man, and while gender defines what is feminine and masculine, it shapes the social roles that men and women play and the power relations between them, which can have a profound effect on the use and management of natural resources.

Gender equality entails giving men and women equal treatment when it comes to rights, responsibilities and opportunities. It enshrines equal outcomes for women, men and gender-diverse people. Gender equity on the other hand is about fairness. In order to ensure everyone has equal opportunities, gender equity considers privilege, bias and other parameters that can limit how people access opportunities.

Gender equity is the process to achieve gender equality. It recognizes that due to historical and social disadvantages some people especially women are not in the same position as men and thus treating them ‘equally’ may not be fair hence the need to address these inequalities. It has been observed that men and women relate to the environment in different ways, and environmental changes have different impacts on their lives.

Women play a critical role in sustaining communities and managing natural resources, but their contributions are often undervalued and neglected. For example, women play a central part in the provision, management and safeguarding of freshwater as a natural resource, and they are often responsible for sanitation and maintaining a hygienic home. Women are also more likely than men to live in poverty, and they are more vulnerable to the impacts of climate change and other environmental hazards, especially in developing countries.

Natural disasters such as erosion and other forms of soil degradation, pollution of freshwaters, shore-line erosion, flooding, loss of wetlands, drought and desertification impact directly on women in their roles as providers of food, water and fuel. It has also been observed that climate change can also impact on women’s productive roles since its impacts such as rising sea levels, flooding in low-lying delta areas and increased salt-water intrusion can jeopardize sustainable livelihood strategies. Further, food security and family well-being are threatened when the resource base on which women rely to carry out their critical roles and obtain supplementary incomes is undermined.

Agriculture is the most important employment sector for women in low and middle income countries and therefore, during periods of drought and erratic rainfall, women, as agricultural workers and primary procurers, work harder to secure income and resources for their families. This puts added pressure on girls, who often have to leave school to help their mothers manage the increased burden. Women also bear a disproportional burden of deteriorating water quality and availability in rural and urban areas due to environmental problems such as pollution and drought and have to travel long distances in search of water to sustain households.

Based on the foregoing, it has been argued that women were more worried about climate change than men and that more women than men felt they could do something to curb climate change and were prepared to take action to that effect. Actualizing gender equity and giving women a voice in environmental decision making can therefore foster environmental sustainability. In addition, in the context of corporate governance, it has been observed that women play a more significant role, compared to men, in establishing positive values in terms of social welfare but also toward reducing carbon emissions. Thus, enhancing board gender diversity is vital in enabling firms to ‘go green.’

Gender board diversity is positively related to a firm’s ‘environmental consciousness and foster environmental sustainability initiatives through Corporate Social Responsibility (CSR) activities. To this extent, it has been argued that women have a lower proclivity for unethical business behavior and are more socially oriented than men, which could mean that more gender diverse boards are less likely to engage in unethical behavior and be more effective in CSR-related decision-making. Actualizing gender equity in board decision making can thus enhance environmental sustainability.

Based on the foregoing, it has been asserted that Gender equity and environmental sustainability are gaining political momentum as global challenges that require urgent co-ordinated action. Women and men around the world are affected differently by climate change, deforestation, land degradation, desertification, unsustainable infrastructure, growing water scarcity and inadequate sanitation, making the goals of gender equality and environmental sustainability mutually reinforcing. Integrating a gender lens to environmental data collection and policy making can thus foster environmental sustainability.

*This is an extract from Kenya’s First Clean and Healthy Environment Book: Actualizing the Right to a Clean and Healthy Environment (Glenwood, Nairobi, January 2024) by Hon. Prof. Kariuki Muigua, OGW, PhD, Professor of Environmental Law and Dispute Resolution, Senior Advocate of Kenya, Chartered Arbitrator, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Lifetime Achievement Award 2021 (CIArb Kenya), African Arbitrator of the Year 2022, Africa ADR Practitioner of the Year 2022, Member of National Environment Tribunal (NET) Emeritus (2017 to 2023) and Member of Permanent Court of Arbitration nominated by Republic of Kenya and Academic Champion of ADR 2024. Prof. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Prof. Kariuki Muigua teaches Environmental Law and Dispute resolution at the University of Nairobi School of Law, The Center for Advanced Studies in Environmental Law and Policy (CASELAP) and Wangari Maathai Institute for Peace and Environmental Studies. He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Prof. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Managing Partner of Kariuki Muigua & Co. Advocates and Africa Trustee Emeritus of the Chartered Institute of Arbitrators 2019-2022. Prof. Muigua is a 2023 recipient of President of the Republic of Kenya Order of Grand Warrior (OGW) Award for his service to the Nation as a Distinguished Expert, Academic and Scholar in Dispute Resolution and recognized among the top 5 leading lawyers and dispute resolution experts in Band 1 in Kenya by the Chambers Global Guide 2024 and was listed in the Inaugural THE LAWYER AFRICA Litigation Hall of Fame 2023 as one of the Top 50 Most Distinguished Litigation Lawyers in Kenya and the Top Arbitrator in Kenya in 2023.

References

‘What Is Gender and Biodiversity?’ Available at https://www.cbd.int/gender/biodiversity/ (Accessed on 11/08/2023).

African Charter on Human and People’s Rights., Available at https://au.int/sites/default/files/treaties/36390-treaty-0011_- _african_charter_on_human_and _peoples_rights_e.pdf (Accessed on 12/08/2023).

Crabtree. E., ‘Why we Need Gender Equity, Not Just Equality.’ Available at https://iqeq.com/insights/why-we-need-gender-equity-not-justequality/#:~:text=Gender%20equality%20is%20giving%20all,limit%20 how%20people%20access%20 opportunities. (Accessed on 11/08/2023).

DCED., ‘Gender Equality vs Equity.’ Available at https://www.enterprisedevelopment.org/weegateway/gender-equality-vs-equity/ (Accessed on 11/08/2023).

De Silva. DG., & Pownall. RA., ‘Going Green: Does it Depend on Education, Gender or Income? ‘ Applied Economics, Volume 46, No. 5. (2014) pp573–586.

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

J. Latham, “A study on gender equality as a prerequisite for sustainable development,” Report to the Environment Advisory Council, Sweden 2007:2, p. 17. Available at http://www.uft.oekologie.unibremen.de/hartmutkoehler_fuer_studierende/MEC/ 09-MECreading/gender%202007%20EAC%20rapport_engelska.pdf (Accessed on 11/08/2023).

Geneva Environment Network., ‘Gender and the Environment.’ Available at https://www.genevaenvironmentnetwork.org/resources/updates/gender-and-theenvironment/ (Accessed on 11/08/2023).

Goodland. R., ‘The Concept of Environmental Sustainability.’ Annual Review of Ecology and Systematics, Volume 26 (1995), 1-24.

Hannan. C., ‘Mainstreaming Gender Perspectives in Environmental Management and Mitigation of Natural Disasters.’ Available at https://web.archive.org/web/20180721174301id_/http://www.un.org/ womenwat ch/osagi/pdf/presnat%20disaster.PDF (Accessed on 12/08/2023).

IUCN., ‘Gender and the Environment: What are the Barriers to Gender Equality in Sustainable Ecosystem Management?’ Available at https://www.iucn.org/news/gender/202001/gender-and-environment-what-are-barriers-gender-equality-sustainable-ecosystem-management (Accessed on 12/08/2023).

Kariuki. J., & Birner. R., ‘Exploring Gender Equity in Ecological Restoration: The Case of a Market Based Program in Kenya.’ Available at https://er.uwpress.org/content/wper/39/1-2/77.full.pdf (Accessed on 12/08/2023).

Kassinis. G et al., ‘Gender and Environmental Sustainability: A Longitudinal Analysis.’ Corporate Social Responsibility and Environmental Management (2016).

Morelli. J., ‘Environmental Sustainability: A Definition for Environmental Professionals.’ Journal of Environmental Sustainability, Volume 1, Issue 1 (2011).

Muigua. K., ‘Actualising the National Policy on Gender and Development in Kenya.’ Available at http://kmco.co.ke/wp-content/uploads/2020/10/Actualising-theNational-Policy-on-Gender-and-Development-in-Kenya-Kariuki-Muigua-Ph.DOctober-2020.pdf (Accessed on 12/08/2023).

Muigua. K., ‘Gender Perspectives in Biodiversity Conservation.’ Available at http://kmco.co.ke/wp-content/uploads/2021/11/Gender-Perspectives-inBiodiversity-Conservation-Kariuki-Muigua-November-2021.pdf (Accessed on 11/08/2023).

Muigua. K., ‘Towards Meaningful Public Participation in Natural Resource Management in Kenya.’ Available at http://kmco.co.ke/wpcontent/uploads/2018/08/TOWARDS-MEANINGFUL-PUBLIC-PARTICIPATIONIN-NATURAL-RESOURCE-MANAGEMENT-IN-KENYA.pdf (Accessed on 12/09/2023).

Organization for Security and Co-operation in Europe., ‘Gender and the Environment.’ Available at https://www.osce.org/files/f/documents/4/f/36360.pdf (Accessed on 12/08/2023).

Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa., Available at https://www.ohchr.org/sites/default/files/Documents/Issues/Women/WG/Prot ocolontheRightsofWomen.pdf (Accessed on 12/08/2023).

Report of the World Commission on Environment and Development., ‘Our Common Future’ 1987 (Brundtland Report).

Republic of Kenya., ‘Sessional Paper No. 02 of 2019 on National Policy on Gender and Development.’ Available at http://psyg.go.ke/wpcontent/uploads/2019/12/NATIONAL-POLICY-ON-GENDER-ANDDEVELOPMENT.pdf (Accessed on 12/08/2023).

Robinson. D., ‘15 Biggest Environmental Problems of 2023.’ Available at https://earth.org/the-biggest-environmental-problems-of-our-lifetime/ (Accessed on 11/08/2023).

Shobeiri. S., & Meiboudi. H., ‘Women’s Participation in Environmental Management and Development Promotion Culture.’ Available at https://www.researchgate.net/publication/311533595_Women’s _participation_in_e nvironmental_management_and_development_Promotion_Culture#:~:text=Women %20are%20the%20main%20cause,environmental%20management%20are%20so%20o bvious. (Accessed on 12/08/2023).

SIDA., ‘Gender and the Environment.’ Available at https://cdn.sida.se/publications/files/-gender-and-the-environment.pdf (Accessed on 11/08/2023).

Sphera., ‘What Is Environmental Sustainability?’ Available at https://sphera.com/glossary/what-is-environmental-sustainability/ (Accessed on 11/08/2023).

The Organization for Economic Cooperation and Development., ‘Gender and the Environment.’ Available at https://www.oecd.org/env/gender-and-theenvironment-3d32ca39-en.htm (Accessed on 12/08/2023).

UN Women., ‘Explainer: How Gender Inequality and Climate Change are Interconnected.’ Available at https://www.unwomen.org/en/newsstories/explainer/2022/02/explainer-how-gender-inequality-and-climate-changeare-interconnected?gclid=CjwKCAjw29ymBhAKEiwAHJbJ8p-iWBVsiOQq0h8- HiXaObwP7T1nztSxRGPldFcxcRs-fIzzRIQIgRoCVrIQAvD_BwE (Accessed on 12/08/2023).

UNICEF., ‘Climate Change and Environmental Sustainability.’ Available at https://www.unicef.org/india/what-we-do/climate-change (Accessed on 11/08/2023).

United Nations Department of Economic and Social Affairs., ‘Forum on Climate Change and Science and Technology Innovation.’ Available at https://www.un.org/en/desa/forum-climate-change-andscience-and-technologyinnovation (Accessed on 11/08/2023).

United Nations Environment Programme., ‘About Gender.’ Available at https://www.unep.org/explore-topics/gender/about-gender (Accessed on 11/08/2023).

United Nations Framework Convention on Climate Change., ‘New Report: Why Climate Change Impacts Women Differently than Men.’ Available at https://unfccc.int/news/new-report-why-climate-change-impacts-womendifferently-thanmen?gclid=CjwKCAjw29ymBhAKEiwAHJbJ8ssIfst99WBehD0DHNpgs bjqaHye6wO iIPq9xBR4ZYRvsL8yf_KNgxoCskUQAvD_BwE (Accessed on 12/08/2023).

United Nations General Assembly., ‘Report of the United Nations Conference On Environment and Development: Rio Declaration on Environment and Development.’ A/CONF.151/26 (Vol. I), Principle 3.

United Nations, “The Role of Men and Boys in Achieving Gender Equality,” Women 2000 and Beyond, December 2008, p.4. Available at http://www.unwomen.org/~/media/headquarters/media/publications/un/en/w 2000menandboyseweb.pdf (Accessed on 11/08/2023).

United Nations., ‘Report of the United Nations Conference on the Human Environment, Stockholm, 5-16 June 1972’ Principle 2.

United Nations., ‘Report of the World Conference to Review and Appraise the Achievements of the United Nations Decade for Women: Equality, Development and Peace.’ AlCONF.116128/Rev.1 48.

United Nations., ‘Transforming Our World: The 2030 Agenda for Sustainable Development.’ Available at https://sustainabledevelopment.un.org/content/documents/21252030%20Agenda %20for%20Sustain able%20Development%20web.pdf (Accessed on 12/08/2023).

United Nations., ‘What is Climate Change?’ Available at https://www.un.org/en/climatechange/what-is-climate-change (Accessed on 11/08/2023).

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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.