News & Analysis

Way Forward in Enhancing Access to Justice for Sustainable Development

Published

1 year ago

March 21, 2024

Photo Courtesy: ICJ

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

In order to enhance access to justice for achieving Clean and Healthy and Sustainable Development in Kenya, it is imperative to promote access to information. Access to information has been described as pivotal component in the quest towards access to justice. It has rightly been informed that access to information is critical for the achievement of the SDGs. Through access to information, the public is empowered to make informed choices, to effectively monitor and hold their government to account, and to be able to know about decisions affecting their lives. It has been argued that Sustainable Development is undermined when people are unable to access information, express their views and participate freely in decisions that affect their lives and livelihoods.

Access to information for citizens, civil society and private sector groups is critical to ensuring effective use of government resources towards sustainable growth. It is also vital for strengthening access to justice making citizens informed about their environmental, economic and social rights and the available legal and administrative remedies for fulfilling these rights towards Sustainable Development. Making information available and accessible to any person in an affordable, effective and timely manner without proving a legal or other interest is also key.

The Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention) recognizes the importance of access to information in environmental matters towards realizing access to justice and Sustainable Development and urges all countries to promote access to information. It is therefore necessary to promote access to information in order to enhance access to justice for Sustainable Development in Kenya. In addition, it is essential to enhance public participation in order to enhance access to justice for Sustainable Development in Kenya.

Public participation has been identified as key pillar of access to justice across all dimensions including environmental justice. This is succinctly captured in the Rio Declaration on Environment and Development which stipulates that: ‘Environmental issues are best handled with the participation of all concerned citizens, at the relevant level.

At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decisionmaking processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.

Public participation can promote Sustainable Development and improve the quality of decision-making by providing decision-makers with additional, unique information on local conditions in the context of social, environmental and economic decision making. In addition, public participation can also improve policy implementation and foster peace and sustainability by increasing the legitimacy of the decision-making process and, in so doing, reducing instances of conflict.

It has been asserted that citizen involvement in environmental decision making has been associated with several benefits which include: information and ideas on public issues; public support for planning decisions; avoidance of protracted conflicts and costly delays; reservoir of good will which can carry over to future decisions; and spirit of cooperation and trust between decision makers and the public. In addition, public participation strengthens procedural access to justice across various facets including environmental justice.

It has been pointed out that public participation in environmental and sustainability decision-making often needs to be supported by legally protected access to information and access to justice measures. It is therefore imperative to embrace public participation in order to enhance access to justice for Sustainable Development in Kenya. Further, it is necessary to address the challenges facing access to justice through courts in Kenya. It has correctly been pointed out that the right of access to justice in Kenya has hitherto been hampered by many unfavourable factors such as high court filing fees, bureaucracy, complex legal procedures, illiteracy, distance from formal courts, backlog of cases in courts and lack of legal knowhow.

Addressing these challenges calls for the adoption of measures such as making court fees affordable for all persons, enhanced legal aid and awareness programmes, improving physical access to courts through construction of more court infrastructure, operationalizing mobile courts in remote areas to enhance access to justice for the marginalized and vulnerable groups, embracing court circuits aimed at deploying judges and judicial officers to specific court stations with high caseloads in order to accelerate the determination of disputes, promoting pro-bono schemes, simplification of court procedures, embracing electronic filing (e-filing) of court documents and virtual court sessions to reduce the need of physically accessing courts, and the establishment of specialized courts including tribunals and small claims courts to improve the ease of managing disputes. These measures will improve access to justice and enable citizens exercise their economic, social and environmental rights towards Sustainable Development in Kenya.

Finally, there is need to embrace Alternative Justice Systems including ADR mechanisms in order to enhance access to justice for Sustainable Development in Kenya. ADR mechanisms contain certain attributes which include informality, flexibility, privacy, confidentiality, party autonomy and the ability to foster expeditious and cost effective management of disputes which makes them viable in enhancing access to justice.

In addition, ADR mechanisms have been practiced in Africa for many centuries and are well embedded in the culture and customary practices of the Kenyan people. These mechanisms emphasize harmony, humanness and togetherness over individual interests therefore creating a conducive environment for economic, social, cultural and political development towards realizing the Sustainable Development agenda. Promoting ADR mechanisms is therefore necessary in enhancing access to justice for Sustainable Development in Kenya.

*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

Ako. R., ‘Resource Exploitation and Environmental Justice: the Nigerian Experience,‘ in F.N. Botchway (ed), Natural Resource Investment and Africa’s Development, (Cheltenham, UK: Edward Elgar Publishing, 2011), pp. 74- 76.

Cerezo. L, & Garcia. G., ‘Lay Knowledge and Public Participation in Technological and Environmental Policy.’ Available at https://scholar.lib.vt.edu/ejournals/SPT/v2n1/pdf/CEREZO.PDF (Accessed on 05/01/2023).

Constitution of Kenya, 2010, Government Printer, Nairobi

Dereymaeker, G.,‘Formalising the Role of Paralegals in Africa: A Review of Legislative and Policy Developments. Cape Town: Dullah Omar Institute (CSPRI), Open Society Justice Initiative and Paralegal Advisory Service Institute, (2016) pp.1-32.

Environmental Management and Coordination Act, No. 8 of 1999, Government Printer, Nairobi.

International Development Law Organization., ‘Access to Justice in Kenya.’ Available at https://www.idlo.int/what-we-do/initiatives/access-justice-kenya (Accessed on 04/01/2024).

International Development Law Organization., ‘Doing Justice to Sustainable Development: Integrating The Rule of Law into the Post-2015 Development Agenda.’ Available at https://www.idlo.int/sites/default/files/pdfs/publications/Doing%20Justice%20t o%20Sustainable%20 Development.pdf (Accessed on 05/01/2023)

Judiciary of Kenya., ‘Alternative Justice Systems Baseline Policy and Policy Framework.’ Available at https://judiciary.go.ke/download/alternative-justicesystems-baseline-policy-and-policy-framework/ (Accessed on 05/01/2024).

Judiciary of Kenya., ‘State of the Judiciary and the Administration of Justice Annual Report 2022/2023’ Available at https://judiciary.go.ke/sojar-2022-2023-2/ (Accessed on 05/01/2023).

Ladan, M. T., ‘Access to Justice as a Human Right Under the ECOWAS Community Law.’ https://www.researchgate.net/publication/272246292_Access_to_Justice_as_a_Hu man_Right_Under_the_Ecowas_Community_Law (Accessed on 04/01/2024).

Muigua. K., & Kariuki. F., ‘ADR, Access to Justice and Development in Kenya.’ Available at https://kmco.co.ke/wp-content/uploads/2018/08/ADR-access-tojustice-and-development-in-Kenya-Revised-version-of-20.10.14.pdf (Accessed on 05/01/2023).

Muigua. K., ‘Access to Justice and Alternative Dispute Resolution Mechanisms in Kenya’ Available at https://kmco.co.ke/wp-content/uploads/2018/09/ACCESS-TOJUSTICE-AND-ALTERNATIVE-DISPUTE-RESOLUTION-MECHANISMS-INKENYA-23rd-SEPTEMBER-2018.pdf (Accessed on 05/01/2023).

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

Muigua. K., ‘Mainstreaming Alternative Justice Systems in Africa.’ Available at https://kmco.co.ke/wp-content/uploads/2023/11/Mainstreaming-AlternativeJustice-Systems-in-Africa.pdf (Accessed on 05/01/2023).

Muigua. K., ‘Mainstreaming Alternative Justice Systems in Africa.’ Op Cit 43 Uwazie. E., ‘Alternative Dispute Resolution in Africa: Preventing Conflict and Enhancing Stability.’ Africa Security Brief, No. 16 of 2011

Muigua. K., ‘Realizing Environmental Justice through Litigation.’ Available at https://kmco.co.ke/wp-content/uploads/2023/07/Realizing-EnvironmentalJustice-through-Litigation.pdf (Accessed on 05/01/2023).

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

Muigua. K., ‘Towards Meaningful Public Participation in Natural Resource Management in Kenya.’ Available at http://kmco.co.ke/wp- content/uploads/2018/08/TOWARDSMEANINGFUL-PUBLICPARTICIPATIONIN-NATURAL-RESOURCEMANAGEMENT-IN-KENYA.pdf (Accessed on 05/01/2023).

Muigua. K., Kariuki. F., ‘Towards Environmental Justice in Kenya.’ Available at https://kmco.co.ke/wp-content/uploads/2018/08/Towards-EnvironmentalJustice-in-Kenya-January-2015.pdf (Accessed on 05/01/2023).

Muigua. K., Kariuki. F., ‘Towards Environmental Justice in Kenya.’ Op Cit 53 Muigua. K., ‘National Environment Tribunal, Sustainable Development and Access to Justice in Kenya.’ Available at https://kmco.co.ke/wpcontent/uploads/2020/03/National-Environment-Tribunal-Sustainable Development-and-Access-to-Justice-in-Kenya-1.pdf (Accessed on 05/01/2023)

Muigua.K., Wamukoya.D & Kariuki.F., ‘Natural Resources and Environmental Justice in Kenya’ Glenwood Publishers Ltd, 2015.

Ojwang. J.B, “The Role of the Judiciary in Promoting Environmental Compliance and Sustainable Development,” 1 Kenya Law Review Journal 19 (2007), pp. 19-29.

Organisation for Economic Co-operation and Development., ‘Leveraging the SDGs for Inclusive Growth: Delivering Access to Justice for All.’ Available at https://www.oecd.org/gov/delivering-access-to-justice-for-all.pdf (Accessed on 04/01/2023).

Save Lamu & 5 others v National Environmental Management Authority (NEMA) & Another, Tribunal Appeal No. NET 196 of 2016, (2019) eKLR.

SDG Resource Centre., ‘Access to Justice.’ Available at https://sdgresources.relx.com/tags/access-justice (Accessed on 04/01/2023)

The Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters., Available at https://unece.org/DAM/env/pp/documents/cep43e.pdf (Accessed on 05/01/2023).

The United Nations Educational, Scientific and Cultural Organization (UNESCO)., ‘From Promise to Practice: Access to Information for Sustainable Development.’ Available at https://www.unesco.org/en/articles/promise-practice-access-informationsustainabledevelopment#:~: text=Access%20to%20information%20(ATI)%20is,about%20decisions%20 affecting%20their%20lives. (Accessed on 05/01/2023).

United Nations Development Programme., ‘Strengthening Judicial Integrity through Enhanced Access to Justice.’ Available at https://www.undp.org/sites/g/files/zskgke326/files/migration/eurasia/Accessto-justice.pdf (Accessed on 05/01/2023).

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.1), Principle 10.

United Nations General Assembly., ‘Transforming Our World: the 2030 Agenda for Sustainable Development.’ 21 October 2015, A/RES/70/1., Available at https://sustainabledevelopment.un.org/content/documents/21252030%20Agenda %20for%20Sustainabl e%20Development%20web.pdf (Accessed on 04/01/2023).

United Nations Office on Drugs and Crime., ‘Partners Welcome move to Mainstream Alternative Justice Systems in Kenya.’ Available at https://www.unodc.org/easternafrica/en/Stories/partnerswelcome-move-tomainstream-alternative-justice-systemsinkenya.html#:~:text=AJS%20may%20be%20defined %20as,more%20expeditious%20 than%20court%20proc esses (Accessed on 05/01/2024).

United Nations., ‘Access to Justice.’ Available at https://www.un.org/ruleoflaw/thematic-areas/access-to-justice-and-rule-of-lawinstitutions/access-to-justice/ (Accessed on 04/01/2024).

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.

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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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