LLM Theses and Dissertations (2022)

Permanent URI for this collection

http://hdl.handle.net/11071/12880

Browse

Now showing 1 - 14 of 14

The Rationale for and enforcement of continuous disclosure frameworks in securities regulation in South Africa
(Strathmore University, 2022) Mamvura, Enodias
Companies listed on financial markets are expected to disclose new non-public material information to investors and market participants. Continuous disclosure entails that investors always envisage being promptly informed of any new price-sensitive information concerning a listed entity as a sine qua non for their informed investment decisions. Enforcement of continuous disclosure obligations through criminal actions, civil penalties and private enforcement mechanisms instils investor confidence and, most importantly, enhances the integrity and efficiency of the market. South Africa’s continuous disclosure framework does not have civil and criminal statutory liability penalties for issuers’ and directors’ breach of continuous disclosure obligations. The study utilised doctrinal legal research and comparative legal analysis in analysing South Africa’s continuous disclosure framework. The absence of civil and criminal statutory liability provisions was found to undermine both private and public enforcement of continuous disclosure obligations. The study also found that international instruments on securities regulation highlight the rationale for continuous disclosure and encourage public and private enforcement of continuous disclosure obligations. The research recommends the enactment of criminal and civil liability provisions to change the status quo. The study is fundamental to policymakers, retail and institutional investors and financial regulators.
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.
Women trafficking in Kenya: assessing the policy, legal and institutional framework
(Strathmore University, 2022) Kimeu, Winnie Wausi
Kenya has been identified as a tier 2 Country when it comes to combatting human trafficking this is according to the Trafficking in Persons Report 2020, this means that Kenya does not quite comply with the standards put in place to combat human trafficking. Currently Kenya has one of the highest number of women and girls trafficked in the East Africa region. Human trafficking in not a new phenomenon, however over recent years it has turned out to be a grave problem. Women and girls in particular are the majority of individuals affected, they make up 80% of the total number of trafficking victims all around the world.1 Women have become the major prey when it comes to human trafficking, circumstances such as unemployment, social economic factors and lack of education have catalyzed the situation therefore making them more vulnerable to human trafficking. Kenya has been identified as a transit and destination point for human trafficking. This means that victims from neighboring East Africa regions are being trafficking into Kenya and others out of Kenya into international destinations. It has been noted that Kenya houses the headquarters for the human trafficking ring in East Africa, these rings use recruitment centers as covers to conduct these heinous acts.2 This thesis seeks to address the inadequate nature of Kenya, policy, legal and institutional framework in support of the fight against human trafficking mostly in women and girls. It shall look at what causes human trafficking in women in Kenya and why Kenya has one of the largest numbers of trafficked women and girls in East Africa. It will also look at the legal, policy and institutional framework that has currently been put in place to combat human trafficking in women. The main agenda of this thesis is to uncover the difficulties in policy and regulation so that Kenya’s position in the global arena when it comes to human trafficking can be improved.
Flattening the insolvency curve: the adaptability and responsiveness of Kenya’s corporate insolvency law in tackling pandemic and economic depression insolvencies
(Strathmore University, 2022) Kieti, Denis Ndolo
The covid-19 viral pandemic has negatively affected global economic growth prompting governments across the world to set up fiscal and monetary policy interventions to mitigate the adverse effects of the pandemic on their economies. Kenya, as a consequence, similarly set up economic and financial support measures to forestall economic depression. Unlike some major economies such as the U.K. which modified their insolvency regimes to forestall pandemic insolvencies, there were no such amendments made to the Kenya’s Insolvency Act. This is despite the unpredictability presented with new more deadly covid-19 variants coming up, which has further dampened the pace of economic recovery. Utilising doctrinal and comparative research methods, this thesis has examined whether Kenya’s corporate insolvency law is adaptive and responsive in the event of an emergency and whether the objectives of the Insolvency Act, (Act No.18 of 2015) have been achieved following the ongoing pandemic. It has evaluated the adaptability and responsiveness of Kenya’s insolvency law to support companies during an economic depression; the kind brought about by the current pandemic. By referring to the vital elements of an efficient and effective insolvency framework outlined in the UNCITRAL Legislative Guide on Insolvency Law, it has been confirmed that Kenya’s current insolvency law is inadaptable and unresponsive to the unprecedented challenges of the pandemic or other emergency, such as an economic depression. Therefore, by examining how the United Kingdom has responded to the emergency, it has been established that Kenya can borrow critical lessons. The thesis has laid out recommendations on emergency policy and legislative reforms that could make the Kenyan insolvency framework better suited to supporting businesses during emergencies. There is limited research on insolvency law and legal reforms in Kenya touching on the pandemic and the thesis contributes to this literature on Kenyan corporate insolvency law by outlining the legal framework as it currently is and its limitations. The study contributes knowledge by analysing the theoretical framework underpinning insolvency law. It also outlines the international insolvency benchmarks by the IMF, World Bank and UNCITRAL and how these can influence Kenya. This literature on Kenyan corporate insolvency law is limited, and on this, the thesis is enlightening.
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.
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.
Sovereignty and the legality of collateralization of strategic national assets as security for loan procurement: China-Africa Relations
(Strathmore University, 2022) Chuma, Eric Mwendwa
In the early years of the new millennium, African countries long starved of development finance found a new partner in China, with many governments eager to procure readily available loan facilities to spur much needed impetus to economic plans. China looking to tap into new sources of raw material and new markets for Chinese goods have been more than generous with financing especially because the terms of the loans mean Chinese companies are contracted to do the work especially around infrastructure projects. However, the particulars of these loans are shrouded in secrecy, with confidentiality cited as an integral component of the terms and conditions. China is not a member of the Paris Club of creditors and thus operates outside the terms that govern that group of creditors as far as disclosure rules for debtor countries is concerned. There have been concerns about the use of national assets of borrower countries as collateral and what impact a default in repayment would have on the sovereignty of the affected countries. It is from this point of view that this study examines the three countries of Kenya Uganda and Zambia in their relationship with China probing whether their respective legal regimes offer effective protection to strategic national assets. The study in finding significant loopholes around the use of strategic assets as collateral in Kenya and Zambia, recommends various interventions to cure the ambiguity and provide for legal protection to them.
Advancing transparent disclosure in petroleum governance: a comparative study of the transparency provisions in the model petroleum agreements in Kenya and Nigeria
(Strathmore University, 2022) Mkalama, Lynda Mwisiwa
Natural resources, especially oil and gas, play a pivotal role toward the socio-economic development of a country. However, despite makings steps towards maximizing the full socio-economic benefits of oil production activities, several countries are still marred with mismanagement of the revenues that emanate from the oil and gas sector. Scholars have argued that one of the enablers of mismanagement of public resources is the aspect of governmental secrecy and lack of transparent and accessible information on petroleum contracts entered between governments and the oil companies. The deeply entrenched culture of secrecy has thus led to poor resource governance in several African countries, with Nigeria being a prime example. Though Nigeria has been in oil and gas extraction for a longer period of time in comparison to Kenya, it has not however achieved good resource good governance due to non-disclosure of the contracts. Concerns are already emerging that Kenya, though still in its infancy extraction stage, is closely following the footsteps of Nigeria in terms of transparent disclosure of fiscal terms, which may ultimately hamper its quest for good resource governance. This thesis examines gaps in Kenya’s petroleum contract which may hinder transparent disclosure of fiscal and other important sustainability information by oil and gas companies. It thus argues that if not comprehensively addressed, lack of transparent disclosure of fiscal terms in Kenya may hamper good resource governance just as it is the case in Nigeria.
The Adequacy of the legal framework in guaranteeing the equitable distribution of profit oil to the local community in the oil and gas sector in Turkana, Kenya
(Strathmore University, 2022) Waigwa, Faith Waguthi
The discovery of minerals and petroleum in a country is often a cause for celebration to its citizens. This is rightly so as it is expected that trading in these resources will result in growth of an economy and improve livelihoods for the nation at large. Kenya’s oil and gas sector is a relatively new sector, but the journey towards ensuring equity is well on course. The interests of communities in profit oil are a murky area, considering that the Constitution of Kenya, 2010 declares all minerals and mineral oils to be public and not community land ousting any individual or community ownership. The Constitution and statutes enacted thereunder guarantee local communities rights to a share of profit oil. They also cater for other related interests of the local communities such as the right to compensation with respect to upstream petroleum activities. This study employs a review of the law and relevant secondary materials to analyse the share and interests of local communities in the oil and gas sector, whether local communities have a stake in profit oil, and to what extent. The study proceeds on the understanding that the interests of local communities in the petroleum activities are realized through sharing of profits and the relevant aspects of compensation accruing to the community in the process, hence substantial reference is also made to compensation aspects. While profit sharing and compensation are distinct concepts, they constitute the local community’ interests in the oil and gas activities. Additionally, a comparative analysis with Nigeria, Papua New Guinea, Venezuela and Norway is carried outThe study identifies gaps in the Kenya’s compensation mechanisms in compulsory acquisition and argues that ultimately, communities have a stake in profit oil that needs to be identified and upheld.
Arbitration of oil and gas disputes in the upstream petroleum sector in Kenya: a critical appraisal
(Strathmore University, 2022) Ngachu, Connie Nkirote
Arbitration is a private mechanism for dispute resolution that is selected and controlled by parties and the final determination made by an arbitral tribunal is final and binding. Upstream petroleum operations are regulated by petroleum contracts that contain dispute resolution clauses which outline the arbitral system that guides the arbitral process. This study was a critical appraisal on arbitration as a way of settling oil and gas disputes in the upstream petroleum sector in Kenya. The study was guided by two main objectives namely: to examine the suitability of the arbitration provisions provided in the Model Petroleum Agreement in the settlement of upstream petroleum disputes in Kenya and to interrogate the effectiveness of arbitration provisions in international instruments in resolving upstream petroleum disputes in Kenya. The data reviewed was journal articles, Kenyan laws the provisions of the UNCITRAL Arbitration Rules, the ICSID Arbitration Rules, New York Convention and notable international case law on arbitration. The study was aimed at providing important pointers that will help stakeholders better understand the suitability of the arbitration provisions contained in the model petroleum agreement anchored in the Kenyan Petroleum Act. This study has found that international law is suitable for the settlement of upstream petroleum disputes because they anchor the cardinal principle of party autonomy and thus promote mutual acceptance and cooperation between parties. The study has also found that arbitration may not be tenable in resolving differences and disputes that include third parties to a petroleum agreement. The study recommends that a policy should be developed by the Kenyan Government to guide negotiations between the state and an investor in petroleum agreements.
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.
The Impact of contract disclosure regulations on the competitiveness of the Kenyan upstream petroleum industry
(Strathmore University, 2022) Abira, Thomas Louis
In this study, the researcher examines the relationship between contract disclosure laws in the recently published Kenyan Petroleum Act, 2019 and the competitiveness of Kenya’s upstream petroleum industry. The researcher delves into literature around contract disclosure examining arguments for and against the rule against the backdrop of the mandatory constitutional provisions on the values and principles of national governance. This study examines the Kenyan Cabinet Secretary’s discretion to publish petroleum contracts and its impact on transparency hence the competitiveness of petroleum corporations as well as the Kenyan petroleum industry in Kenya. The researcher, through this lessons learnt study draws examples from two African countries being, Nigeria and Ghana in a bid to explain the lessons learnt on the impact of contract disclosure laws to the competitiveness of other petroleum corporations and fellow African petroleum industries. Through the infamous lenses of Michael Porter’s (Harvard) five forces of Competitiveness, the researcher measures the competitiveness of the Kenyan upstream petroleum industry drawing a relationship between contract disclosure, transparency and the competitive strength of the Kenyan upstream petroleum industry. The research provides examples of corporations whose competitiveness has been measured against Porter’s model and the role of government policy in impacting the competitiveness of such corporations. Aided by the stakeholder and shareholder theories, this study supports the hypothesis that contract disclosure laws have an impact of the competitiveness of corporations in the upstream petroleum industry and in turn petroleum industries.
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.
Inclusion of lawyers as reporting entities for money laundering in Kenya: implementation challenges and way forward
(Strathmore University, 2022) Gitari, Judy Wanjiku
This research is examines the implementation challenges faced by the legal profession in Kenya in complying with their intended gatekeeping role, in an effort to detect and prevent furtherance of money laundering activities. The importance of their role comes into play mainly because of the professional privilege they possess and their predisposition to be misused by criminals as there is an unwritten assurance that their illegal dealings shall be kept confidential, in acquiescence to their ethical obligations. Despite their vulnerability, the anti-money laundering framework in Kenya is not robust and has been subjected to numerous challenges hindering effective implementation. Accordingly, this study shall rely on the Constitution of Kenya, relevant statues, regulations, journal articles, internet sources as well as case law to investigate the main enforcement obstacles and assess how they can be overcome along with determining whether it is possible to enforce compliance without infringing on the professional duties of lawyers. Additionally, this research examines the degree of compliance of the FATF recommendations within the legal professions in USA, United Kingdom and Malaysia. It also looks at what lessons Kenya can learn from these jurisdictions and what practical steps can be taken to assist in bridging the implementation gap. Moreover, this research shall demonstrate that the susceptibility to use lawyers to launder money is very high. It shall also highlight the importance of including the legal profession in drafting money-laundering legislation and appreciate why this legislation should also take their duties to uphold rule of law into consideration. Finally, this research gives recommendations focused on the way forward towards a fully compliant bar with their reporting role.

Browse

Browsing LLM Theses and Dissertations (2022) by Issue Date

Results Per Page

Sort Options