LLM Theses and Dissertations (2022)

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    CEO’s Employment rights during dismissal stage under the Employment Act: an analysis of typical Kenyan court judgments
    (Strathmore University, 2022) Pengfei, Wu
    This study explored the basic definition of CEO under employment acts in different countries, typical CEO dismissal cases in Kenya, focusing on CEO employment rights, reasons of CEO dismissal, reasons why these disputes were finally filed as lawsuits in the courts, and how court entered into judgments on CEO dismissal cases. This study also tried to understand how companies could avoid CEO dismissal disputes, and how CEOs can seek their rights when facing with unfair or unlawful termination. Anyone who focuses on corporation management and relevant studies will benefit from this study. The outcome of this study will assist CEOs to understand how to protect their employment rights; assist companies to have a better corporate governance, to meet compliance requirements, and to avoid potential CEO dismissal disputes from a structural level; in the meanwhile, this study will also assist legislators to have a look at the practice of employment legislation regarding CEO dismissal cases. The suggestions of this study can also provide a view of how the court may enter into judgment if a certain company and CEO seek to sort out CEO dismissal disputes out of court. The outcome of this study is based on the research results of the current Kenya legislation and court judgments, which makes this study closer to the actual practice of CEO dismissal disputes.
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    Assessing the nature of regulatory enforcement by the Council of Legal Education and its effect on corporate governance of law schools in Kenya
    (Strathmore University, 2022) Wabwire, Georgina Ziita
    There has been an uproar over the declining quality of legal professionals in Kenya that has got various stakeholders interrogating what the problem could be. The regulator of legal education and training in Kenya, the Council of Legal Education (CLE), has been steadily enforcing the regulatory framework in order to assure quality in Legal education and training, reckoning that legal education and training is the foundation of legal professionals. Regulatory intervention by the CLE has however been questioned in a myriad of cases. This study interrogates how the challenges faced by CLE in form of law suits and the gains made as a result of some of those suits have affected corporate governance in Law Schools and in the long run, the delivery of quality legal education in Kenya. Anchored on the stakeholder theory, the study reviews literature on corporate governance practices in universities and law schools in Kenya, and analyses statutes and regulations which prescribe the legal and institutional framework for legal education and training, while identifying the stipulated salient features of corporate governance. In doing so the study discusses the nature of regulatory intervention by CLE; interrogates some key cases that have influenced the type of corporate governance practices existent in law schools; and analyzes the challenges and achievements of regulatory implementation in legal education and training thus far. Based on the findings, the study proposes some recommendations for countering the challenges facing legal education and training in Kenya. Ultimately, it is anticipated that this study will contribute to the ongoing discourse on how to annul the criticism on the quality of legal professionals.
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    Anticipating and mitigating the legal risks resulting from default on external debt from China
    (Strathmore University, 2022) Odhiambo, Moses Antony
    In the absence of legal provisions anticipating and protecting against the legal risks of default on external debt from China (a non-Paris Club creditor), Kenya remains exposed to insolvency or debt restructuring procedures that are unclear and not standardized. Even though the government is on a strategic move to cover the infrastructure gap in the country, the people of Kenya shall remain constantly confronted with longstanding legal and economic consequences owing to the absence of a regulatory framework that would inform sustainable debt strategies. The following study therefore investigates the legal risks incidental to such debt that Kenya has been procuring through bilateral loans with China despite alternative low-cost concessional finance for the development of critical infrastructure in the country. As such, the study seeks to delineate the parameters and metrics that would inform a legal framework that anticipates and guards against the detrimental effects of such risks, drawing from the principles of traditional lending and debt restructuring under the Paris Club. This is based on analysing the legal risks and weighing them against conventional principles of sovereign debt to examine the magnitude of the risks and possible mitigation through legislative and policy interventions.
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    Administrative justice in taxation: an evaluation of KRA’s administrative practices
    (Strathmore University, 2022) Gathura, Winnie Wanjiku
    Administrative justice is a fundamental requirement of a society based on the rule of law. It indicates a commitment to the principle that the government, and its administration, must act within the scope of legal authority. It also signifies the right to seek legal redress whenever rights, liberties or interests are negatively affected when the public administration exercises its duties in an unlawful or inappropriate manner. Given the power and informational advantages that the state possesses relative to the citizen, it is vital that administrative procedure and dispute codes afford the public significant procedural rights and permit decisions and appeals to be dealt with efficiently, fairly and swiftly. A review of several reported cases reveals that even with the developments in Kenya’s tax administration regime, taxpayers are far from having their matters determined in a fair, straightforward, affordable, and efficient manner. This study adopted a doctrinal legal research approach, which included an in-depth review of administrative law, its development process, and legal reasoning. It critically examined Kenya's tax administration system by studying various provisions of the relevant laws to fully grasp what procedural requirements Kenyan law mandates. This research investigated two questions: a) Are administrative law principles relevant in tax administration? and b) Do KRA administrative practices adhere to the principles of administrative law? To answer these questions, this research reviewed and critically analysed Kenya’s tax administration regime from an administrative law perspective. To investigate the extent to which KRA adheres to the principles of administrative law, this study analyzed six cases against KRA and observed that the Courts, have on several occasions found fault in KRA’s decision-making process. The study concludes that, notwithstanding administrative law developments, the KRA's decision making process falls short of administrative law principles’ standards. The study highlights the plight of taxpayers and the need to balance the State’s and taxpayers’ competing interests and ensuring administrative justice. On this basis, it is desired that this research influences Kenya’s tax policy and steer it in a direction to ensure that these interests are balanced in practice.
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    Money laundering and real estate sector in Kenya: towards robust regulation
    (Strathmore University, 2022) Ssekubwa, Rogers Githinji
    The problem this study seeks to address is how the failure to impose money-laundering reporting obligations on all non-financial actors who play a critical role in land transactions where the real estate sector falls is linked to the promotion of money laundering in Kenya. With the over-regulated financial system, smart money launderers move to the underregulate real estate sector with many unregulated actors. Laundering money through real estate has led to negative consequences such as increased prices, destabilisation of the property market, and, most importantly, providing a safe investment for criminals. The legal regime on anti-money laundering and land laws does not explicitly address money laundering through real estate. The existing gaps can be exploited to invest dirty money into real estate. This study is done through a doctrinal research methodology to investigate the research problem. The study takes land laws, POCAMLA, Anti-Corruption and Economic Crimes Act as a case study. A review of the gaps in land laws generates new insights and informs the formulation of regulations for safeguarding Kenya's real estate sector against money laundering. The study also looks at best practices in jurisdictions such as the United States of America (USA) and South Africa (SA) to draw lessons on how to address money laundering through the real estate sector. The lessons drawn from these two jurisdictions are intended to inform the formulation of robust, sector-specific legislation to curb money laundering through real estate based on Kenya's local context. This research poses and investigates three questions to achieve its overarching purpose. First, in answering the questions on the difficulties of using the current land laws and anti-money laundering regulatory framework, the study establishes that the laws are not specific to addressing money laundering through Kenya's real estate. As a result, they are ineffective in solving the problem. This inefficiency originates from challenges arising from the non-inclusion of all non-financial actors as reporting agents. Furthermore, there is a disconnect between land laws and anti-money laundering regulations when addressing money laundering, specifically in real estate. The research shows that there are no robust safeguards to anticipate and lock out money laundering activities from the onset of a conveyancing transaction to the completion stage, during which the title is registered in favour of a purchaser. A specific anti-money laundering regime for real estate transactions would be effective because it will enable the implementation of context-specific and appropriate strategies for the real estate sector. The study further concentrates on measures to curb money laundering through real estate in the USA and South Africa. The findings have important implications for the general understanding of the effectiveness of Kenya's anti-money laundering regime in dealing with real estate money laundering. Additionally, other East African countries with similar legislation to Kenya could from seeing the weaknesses identified in the Kenyan regime and the possible solutions they may borrow from.