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Book Review: Actualizing the Right to a Clean and Healthy Environment by Prof. Kariuki Muigua

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By Anne Kiramba, ACIArb

The new book by Hon. Prof Kariuki Muigua, OGW, PhD, C.Arb, FCIArb titled ‘Actualizing the Right to a Clean and Healthy Environment’ aims at informing the debate on the right to a Clean and Healthy Environment following the adoption by the UN General Assembly of ‘The human right to a Clean, Healthy and Sustainable Environment’ on 28th July 2022. The UNGA resolution re-affirmed the Universal Declaration of Human Rights and recalled among others the Declaration on the Right to Development; the Vienna Declaration and programe of action; the Declaration of the United Nations Conference on the Human Environment (Stockholm Declaration; the Rio Declaration and noted other Human Rights instruments).

The Resolution adopted by the General Assembly on 28th July 2022 is also a reaffirmation ‘that all rights are universal, indivisible, independent and interrelated.’ It also recalls the earlier Human Rights Council Resolution 48/13 of 8th October 2021 entitled “The Human Right to a Clean and Healthy Environment’. The Resolution touches on other pressing and threats to the ability of the present and future generations to effectively enjoy their human rights.

The themes covered in this book include: Sustainable Development, Environmental Justice; Human rights; Environmental Governance; Conflict Management; the Blue Economy; Climate Diplomacy; Sustainability; Restoring Landscapes; Indigenous knowledge; Climate change; Poverty eradication; Peace building and Actualizing the right to a Clean, Healthy and Sustainable environment. There is also discussion on Environmental, Social and Governance (ESG) which is considered relevant and necessary in so far as it relates to the theme of actualizing the right to a Clean, Healthy and Sustainable Environment.

The papers published in this latest book have been unpublished articles as well as articles published in various journals and one or two that have appeared in previous book chapters. In sum, the book brings together a collection of Prof. Kariuki Muigua’s peer-reviewed, published and unpublished papers and articles touching on the theme of the Right to a Clean and Healthy Environment and its actualization today. The collection has been brought together in one volume under the thematic area of the right to a Clean, Healthy & Sustainable environment in a quest to help move forward the discussion and scholarship in the emerging area.

The paper “Realizing the Right to a Clean, Healthy and Sustainable Environment” critically discusses realization of the right to a clean, healthy and sustainable environment. It conceptualizes this right and examines competing views on whether it should be considered a human right. The paper further explores attempts to recognize the right to a clean, healthy and sustainable environment as a human right at the global, regional and national levels. “Recognising a Human Right to Safe, Healthy and Sustainable Environment” makes a case for the need to recognise the human right to safe, healthy and sustainable environment as an independent right capable of being enforced without necessarily making reference to the other human rights, as part of laying the ground for achieving the Sustainable Development agenda.

“(Re) Examining Environmental, Social and Governance (ESG) and Human Rights” critically examines the place of human rights in the Environmental, Social and Governance (ESG) agenda. It argues that human rights occupy a central role in all the ESG factors. The paper discusses the progress made towards integrating human rights within the ESG framework. It also highlights some of the challenges related to ESG and human rights. In addition, the paper offers proposals towards embracing human rights in the ESG debate. “Actualizing Gender Equity for Environmental Sustainability”critically appraises the role of gender equity in fostering environmental sustainability. It examines the disparities between men and women in environmental governance and management and how these differences have hindered realization of environmental sustainability.

“(Re) Establishing Harmony between Nature and Humanity Abstract” examines the need to (re) establish harmony between nature and humanity. It argues that nature and humanity are interdependent and need each other for survival. The paper highlights some of the factors that are affecting the relationship between nature and humanity. It also suggests solutions towards (re) establishing harmony between nature and humanity towards sustainability. “(Re) Invigorating Environmental Multilateralism for Sustainability” critically explores the role of environmental multilateralism in the sustainability debate. It argues that environmental multilateralism can play a key function in unlocking sustainability. It also examines challenges facing environmental multilateralism and proposes measures towards (re) invigorating environmental multilateralism for sustainability.

The Paper “Actualizing Africa’s Green Dream” critically discusses the concept of ‘green economy’ in Africa. It argues that green growth is vital in Africa in the wake of the threat of climate change among other concerns. It further asserts that green growth in Africa can aid in achieving Sustainable Development by striking a balance between human development, environmental conservation and economic development. “Addressing Noise Pollution for a Clean and Healthy Environment in Kenya” discusses the legal and institutional framework on noise regulation, with a view to identifying the key players and stakeholders in tackling the vice. The author argues that unless this problem is effectively addressed, realisation of a clean and healthy environment for the Kenyan people will remain a mirage.

“Combating Environmental Degradation for Posterity” posits that combating environmental degradation is vital for posterity of both humanity and nature. It examines some of the measures adopted towards combating environmental degradation at global, regional, and national levels and related challenges. The paper further offers suggestions towards combating environmental degradation for posterity. “Enhancing Food Security in Africa” critically interrogates the need to enhance food security in Africa. The paper explores the progress made towards enhancing food security in Africa. It also examines some of the obstacles facing the realization of food security in Africa. The paper further suggests initiatives which can be adopted towards enhancing food security in Africa.

“Conserving Ecosystems for Our Health and Well-Being” discusses the need to conserve ecosystems. It argues that conserving ecosystems is vital for our health and well-being since it ensures the sustainable and continuous supply of ecosystem services. The paper interrogates the efficacy of measures adopted towards conserving ecosystems at the global, continental, and national levels. “Embracing Environmental, Social and Governance (ESG) Principles for Sustainable Development in Kenya” critically examines the extent to which Environmental, Social and Governance (ESG) principles have been embraced in Kenya. It argues that ESG has emerged as arguably the most important tool of corporate governance. The paper further addresses some of the ESG challenges in Kenya and suggests the way forward towards embracing ESG principles for sustainable development in Kenya.

“Achieving Net Zero Emissions- A Reflection” critically discusses the need to achieve net zero emissions. It argues that achieving net zero emissions is vital in confronting climate change and fostering Sustainable Development. The paper further discusses some of the challenges facing the attainment of net zero emissions and proposes measures towards achieving net zero emissions. “Embracing Sustainability Audit for Enhanced Corporate Environmental Compliance in Kenya” examines the concept of sustainability audit as a means of increasing the percentage of businesses that comply with environmental regulations in Kenya. “Enforcing the Right to Clean and Healthy Environment in Kenya Through the Polluter Pays principle” makes a case for the enforcement of the right to clean and healthy environment in Kenya through the internationally recognised polluter pays principle. The author argues that though this right has been legally recognised, placing the obligation to enforce it solely on the state agencies may delay the full realisation of this right for all persons.

“Enhancing Access to Justice for Sustainable Development in Kenya” critically discusses the role of access to justice in the Sustainable Development agenda. It argues that access to justice is vital in achieving Sustainable Development. The paper explores how access justice can foster the Sustainable Development agenda in Kenya. “Fostering Environmental, Social and Governance (ESG) Litigation for Sustainability” discusses the role of ESG litigation in promoting sustainability. The paper further examines the emerging trends and practices in ESG litigation and their place in the sustainability agenda. It also explores some of the concerns in ESG litigation. The paper further offers proposals towards fostering ESG litigation for sustainability.

“Fostering the Blue Economy for Sustainability” discusses the role of the blue economy in the sustainability agenda. It argues that the blue economy has the potential to unlock Sustainable Development throughout the world. The paper examines specific ways through which the blue economy contributes to Sustainable Development. It also examines some of the challenges facing the blue economy. The paper also suggests measures aimed at fostering the blue economy for sustainability. “Harnessing Indigenous Knowledge for Climate Action in Africa” discusses the role of indigenous knowledge in addressing the impacts of climate change in Africa. The paper examines the progress made towards utilizing indigenous knowledge for climate action in Africa and challenges thereof. It also offers suggestions towards harnessing indigenous knowledge for climate action in Africa.

“Managing Disputes in Carbon Markets” analyses the nature and causes of disputes in carbon markets. It argues that these disputes can hinder the fight against climate change and the attainment of Sustainable Development hence the need to effectively manage them. The paper explores some of the available mechanisms for managing disputes in carbon markets and their efficacy. It also proposes measures towards effective management of disputes in carbon markets for enhance climate action. “Applying Collaborative Approaches towards Conflict Management” critically examines collaborative approaches towards conflict management. It argues that these techniques can ensure efficient and effective management of conflicts towards peace and sustainability. The paper highlights and discusses some of the collaborative approaches towards conflict management.

“Nurturing our Wetlands for Biodiversity Conservation” examines the role of wetlands in biodiversity conservation and how these wetland resources might be managed to improve biodiversity conservation. “Promoting Human Rights Impact Assessment in Environmental Governance for Sustainable Development” critically discusses the place of human rights in environmental governance, gives an overview of the concept of environmental governance and examines various approaches adopted towards achieving it. “Realising Environmental, Social and Governance Tenets for Sustainable Development” discusses the Environmental, Social and Governance (ESG) aspects of sustainable development agenda and how the same affect sustainability.

“Reconceptualising the Right to Clean and Healthy Environment in Kenya” examines the right to clean and healthy environment as envisaged in the Constitution of Kenya 2010, its legal underpinnings and the extent to which the same has been realised for the Kenyan people. The paper argues that there is need to redefine the right to clean and healthy environment as a fundamental right, classify it with the other basic rights as opposed to the existing notion that it is a third generation right. “Reconceptualizing Corporate Governance for Sustainable Development” critically explores the role of Corporate Governance in the Sustainable Development agenda. The paper highlights some of the corporate governance practices that have fostered Sustainable Development including the concepts of Corporate Social Responsibility (CSR) and Environmental, Social and Governance (ESG).

“Reinforcing Climate Diplomacy for Development” examines the role of climate diplomacy in the global fight against climate change. It defines climate diplomacy and analyses its salient components. The paper further discusses progress made towards embracing climate diplomacy and responding to climate change. It also points out some of the key concerns in the area of climate diplomacy. The paper further suggests proposals towards reinforcing climate diplomacy for development. “Restoring Landscapes and Ecosystems for Climate Mitigation” explores the opportunities and progress made towards restoring landscapes and ecosystems for climate action. It also highlights some of the setbacks facing the utilization of this concept in climate mitigation. In addition, the paper proposes measures towards embracing the idea of restoring landscapes and ecosystems for climate action.

“Safeguarding The Environment During and After Armed Conflict” critically delves into the need to safeguard the environment during and after armed conflict. The paper also probes the progress made towards safeguarding the environment during and after armed conflict. Finally, the paper offers ideas towards safeguarding the environment during armed conflict. “Streamlining Water Governance in Kenya for Sustainable Development” assesses the current measures and attempts by the state to achieve the constitutionally guaranteed right of access to clean and safe water in adequate amounts, the paper offers an overview and analysis of the provisions of Water Act 2016 in light of the international best practices in water governance and the sustainable development agenda.

“Strengthening Environmental Rule of Law for Sustainability” discusses the concept of environmental rule of law. The paper further examines progress made towards promoting environmental rule of law at the global, regional and national levels. It also explores some of the challenges facing the realization of environmental rule of law and suggests measures towards strengthening environmental rule of law for sustainability. “The Place of Environmental, Social and Governance (ESG) in Arbitration” critically discusses the relationship between Environmental, Social and Governance (ESG) and arbitration. The paper argues that arbitration represents a viable mechanism for managing ESG related disputes while simultaneously promoting ESG tenets.

“Transitioning from Fossil Fuels to Clean Energy” discusses the need to transition from fossil fuels to clean energy and examines the role of fossil fuels in the global threat of climate change. The paper further discusses the efficacy of initiatives adopted at national, regional, continental and global levels towards transitioning from fossil fuels to clean energy. “Managing Environmental Conflicts through Alternative Dispute Resolution” discusses the role of Alternative Dispute Resolution (ADR) mechanisms in managing environmental conflicts. The paper argues that ADR mechanisms can be a viable tool in managing environmental conflicts and fostering sustainability. It proposes initiatives towards strengthening the role of ADR mechanisms in managing environmental conflicts.

“Adopting Environmental, Social and Governance for Sustainable Investment in Africa” critically examines the role of ESG in fostering sustainable investments in Africa. The paper highlights some of the factors hindering the realization of sustainable investments in Africa. It further proposes reforms aimed at adopting ESG tenets for sustainable investments in Africa. “Abating Air Pollution for a Healthy Environment” discusses air pollution as a key threat to Sustainable Development and good health and well-being of humanity. The paper critically examines some of the measures adopted towards addressing air pollution noting to highlight their strength and weaknesses. “Embracing Sound Environmental Governance in Africa” critically explores the need to embrace sound environmental governance in Africa. The paper examines the progress made towards realizing good environmental governance in Africa and suggests reforms towards embracing sound environmental governance in Africa for sustainability.

“Mediating Natural Resource Based- Conflicts for Peace and Prosperity” critically explores the role of mediation in managing natural resourcebased conflicts. It argues that mediation is an effective mechanism for managing natural resource- based conflicts. The paper discusses some of the salient attributes of mediation that makes it ideal in managing natural resource-based conflicts. “Placing Health at the Centre of Climate Action” argues that climate change is a major threat to human health and well-being. It examines the impacts of climate change on human health and well-being as well as global health systems. The paper proposes measures towards placing health at the centre of climate action in order to ensure good health and well-being for all.

The author, Hon. Prof. Kariuki Muigua Ph.D; FCIArb; OGW; C. Arb, is the holder of a Doctor of Philosophy (Ph.D.) degree in law from the University of Nairobi attained in 2011. He also holds a Master of Laws (LL.M) degree attained in 2005 and Bachelor of Laws (LL.B) degree awarded in 1988 both from the University of Nairobi. He is a Professor of law at the University of Nairobi Faculty of Law and the Centre for Advanced Studies in Environmental Law and Policy (CASELAP). He also teaches at the Wangari Maathai Institute for Peace and Environmental Studies. He is a Member of the Permanent Court of Arbitration (PCA) nominated by the Republic of Kenya and has served as a Member of the National Environment Tribunal. He is a Senior Advocate of the High Court of Kenya of over 35 years standing and the Managing Partner of Kariuki Muigua & Co. Advocates, one of Kenya’s leading commercial law firms, where he specialises in environmental and commercial law litigation and Alternative Dispute Resolution.

Prof Kariuki Muigua is a distinguished law scholar, Environmental Consultant, an accredited mediator and a Chartered arbitrator. He has widespread training and experience in both international and national commercial arbitration and mediation. He has received numerous awards and honours due to his exemplary work in academia and Alternative Dispute Resolution. Chambers and Partners Global Guide 2024 ranked him in Band 1 of Dispute Resolution (Arbitrators), the ranking which recognizes the Top 6 Arbitrators in Kenya noting that he is “highly recommended as a leading lawyer”. He was awarded the ‘Academic Champion of ADR’ at the inaugural Women in ADR Awards 2024. He was also awarded the Outstanding Mentor Award by his mentees in recognition of his guidance, care and support. He was recognized and awarded for his role as the Chartered Institute of Arbitrators (CIArb) Africa Trustee from 2019 to 2022 by CIArb Kenya Branch at the CIArb Kenya Branch ADR Excellence Awards 2022.

Prof. Kariuki Muigua is a prolific author of many leading textbooks including East Africa’s leading Arbitration Law textbook, Settling Disputes through Arbitration in Kenya,4th Edition; Glenwood publishers 2022, which was awarded the Publication of the Year Award 2022 by CIArb Kenya Branch at the CIArb Kenya Branch ADR Excellence Awards 2022. He has authored the following other books: Alternative Dispute Resolution and Access to Justice in Kenya, (Glenwood Publishers, Nairobi, 2015); Resolving Conflicts through Mediation in Kenya, (Glenwood Publishers, Nairobi, 2013); Natural Resources and Environmental Justice in Kenya, (Glenwood Publishers, Nairobi, 2015); Nurturing Our Environment for Sustainable Development, (Glenwood Publishers, Nairobi, 2016); Settling Disputes through Arbitration in Kenya (Glenwood Publishers, Nairobi) 1st Edition (2012); 2nd Edition (2012); 3rd Edition (2017); and 4th Edition (2022).

Prof. Kariuki Muigua’s other works include Securing Our Destiny through Effective Management of the Environment, (Glenwood Publishers, Nairobi-2020); Achieving Sustainable Development, Peace and Environmental Security (Glenwood Publishers, Nairobi, 2021); Fostering Environmental Democracy and Biodiversity Conservation, (Glenwood Publishers 2021); Exploring Conflict Management in Environmental Matters (Glenwood Publishers 2022); Attaining Environmental Justice for Posterity, Volume 1 and 2, (Glenwood Publishers 2022); Accessing Justice Through ADR, (Glenwood Publishers 2022); Nurturing our Environment for a Green Tomorrow, (Glenwood Publishers 2023); Realizing True Sustainable Development, (Glenwood Publishers 2023); Embracing Environmental Social and Governance (ESG) tenets for Sustainable Development, (Glenwood Publishers 2023); Combating Climate Change for Sustainability, (Glenwood Publishers 2023); Achieving Climate Justice for Development, (Glenwood Publishers 2023); and Promoting The Rule of Law for Sustainable Development (Glenwood Publishers 2024).

Prof. Kariuki Muigua was awarded Africa’s ADR Practitioner of the Year Award by AfAA in 2022. In the same year, he won the African Arbitrator of the Year 2022 award at the 3rd African Arbitration Awards held at Kigali Rwanda beating other competitors from Egypt, Mauritius, Ethiopia, Nigeria and Kenya. In 2021, Prof Muigua was the winner of the Inaugural CIArb (Kenya Branch) ADR Lifetime Achievement Award 2021 as well as the ADR Publication of the Year Award 2021 by the Chartered Institute of Arbitrators (Kenya Branch). He also received the ADR Practitioner of the Year Award 2021 by the Law Society of Kenya, Nairobi Branch at the Nairobi Legal Awards. He is a recipient of the 8th C.B. Madan Prize of 2020 for commitment and outstanding scholarly contribution to constitutionalism and the rule of law in Kenya.

Hon. Prof. Muigua has on various occasions been appointed by leading arbitral institutions including the Chartered Institute of Arbitrators (CIArb-Kenya), the Nairobi Centre for International Arbitration (NCIA), the International Chamber of Commerce (ICC) and the London Court of International Arbitration (LCIA) among other institutions, as both a sole arbitrator and a member of an arbitral tribunal in arbitrations involving commercial disputes. He is a Fellow of Chartered Institute of Arbitrators (CIArb)-Kenya chapter. He is a member of the International Bar Association (IBA), the International Commission of Jurists, Human Rights Institute of the International Bar Association, the London Court of International Arbitration (LCIA), Chartered Institute of Arbitrators (UK) and Kenya Branch, Member of Commonwealth Lawyers Association and fellow of the Institute of Certified Public Secretaries of Kenya. He served as the Branch Chairman of CIArb-Kenya from 2012 to 2015. He was elected (unopposed) to the Chartered Institute of Arbitrators (CIArb) Board of Trustees as the Regional Trustee for Africa, for the term beginning 1st January 2019 for a term of four years until 31st December 2022.

Hon. Prof. Muigua also serves as the Editor in Chief of three leading peer reviewed journals in East Africa, the Alternative Dispute Resolution Journal, the Journal of Conflict Management and Sustainable Development and Journal of ADR & Sustainability. The three journals have been hailed as leading publications in the fields of ADR, Conflict Management and Sustainable Development. The Alternative Dispute Resolution Journal was awarded the Arbitration Publication of the Year Award 2020 at the Africa Arbitration Awards.

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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What is Carbon Markets?

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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;

  1. A Government establishes a limit on the total amount of greenhouse gas emission/pollution is allowed within its geographical limits;
  2. A grant, say permissions are created and distributed to eligible participants. This allowance represents the right to emit a certain amount of greenhouse gas;
  3. 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.
  4. 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.
  5. 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.

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.

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

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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 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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Way Forward in Applying Collaborative Approaches Towards Conflict Management

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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, March 2024)*

It is necessary to embrace and utilize collaborative approaches in managing conflicts. These techniques include mediation, negotiation, and facilitation. These mechanisms are effective in managing conflicts since they encourage parties to embrace and address disagreements through empathy and listening towards mutually beneficial solutions. Collaborative approaches also have the potential to preserve relationships, build trust, and promote long term positive change. They also ensure a win-win solution is found so that everyone is satisfied which creates the condition for peace and sustainability. These approaches are therefore ideal in managing conflicts. It is therefore important to embrace collaborative approaches in order to ensure effective management of conflicts.

In addition, it is necessary for third parties including mediators and facilitators to develop their skills and techniques in order to enhance the effectiveness of collaborative approaches towards conflict management. For example, it has correctly been observed that mediators and facilitators should listen actively and empathetically in order to assist parties to collaborate towards managing their dispute. Therefore, when a dispute arises, the first step should involve listening to all parties involved with an open mind and without judgment. This should entail active listening, which means paying attention to both verbal and nonverbal cues and acknowledging the emotions and perceptions involved.

It has been observed that by listening empathetically, a third party such as a mediator of facilitator can understand each person’s perspective and start to build a foundation for resolving the conflict through collaboration. In addition, while collaborating towards conflict management, it is necessary to encourage and help parties to focus on interests and not positions. It has been pointed out that focusing positions can result in a standstill which can delay or even defeat the conflict management process. However, by identifying and addressing the underlying interests parties can find common ground and collaborate towards coming up with creative solutions towards their conflict.

Mediators and facilitators should also assist parties to look for areas of agreement or shared goals. Identifying a common ground can build momentum and create a positive environment for resolving the conflict. Further, in order to ensure the effectiveness of collaborative approaches in conflict management, it is necessary to build strong collaboration. It has been asserted that strong collaboration can be achieved by establishing a shared purpose, cultivating trust among parties, encouraging active participation by all parties, and promoting effective communication.

Strong collaboration enables parties to develop trust between and among themselves and strengthen communication channels between the various parties. It also helps to generate inclusive solutions that arise from wider stakeholders’ views. Therefore while applying collaborative approaches, it is necessary for parties to foster strong collaboration by identifying common goals, building trust, ensuring that all stakeholders are involved, and communicating effectively in order to come up with win-win outcomes.

Finally, while embracing collaborative approaches in conflict management, it is necessary for parties to consider seeking help from third parties if need arises. For example, negotiation is always the first point of call whenever a conflict arises whereby parties attempt to manage their conflict without the involvement of third parties. It has been described as the most effective collaborative approach towards conflict management since it starts with an understanding by both parties that they must search for solutions that satisfy everyone.

It enables parties to a dispute to come together to openly discuss the issue causing tension, actively listen to each other, and come up with mutually satisfactory solutions. However, it has been correctly observed that negotiation may fail especially if the conflict is particularly complex or involves multiple parties due to challenges in collaborating. In such circumstances, where negotiation fails, parties should consider resorting to other collaborative approaches such as mediation and facilitation where they attempt to manage the conflict with the help of a third party. A mediator or facilitator can assist parties to collaborate and continue with the negotiations and ultimately break the deadlock.

*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.

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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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