LLB Research Projects (2018)

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Right to privacy in the wake of mobile money transfers in Kenya: is the data protection bill a step in the right direction?
(Strathmore University, 2018) Gichana, Eric Wagura
Mobile Money Transfer has, in just a little over ten years, transformed the lives of millions of Kenyans in addition to greatly improving the economy of the county. Mobile money penetration in Kenya currently stands at 68% of the adult economy. This has not only made Kenyans the most banked people in Africa but has also greatly contributed to improving the lifestyles of many Kenyans who don't live within urban areas. The success of mobile money in Kenya is greatly backed by the rise in mobile phone penetration and advancement in technology. This success is however greatly threatened owing to the fact that the telecommunication companies operating mobile money services do so in an environment where there is no clear law or regulation on data protection. A mobile money environment is synonymous with generation of big data. Big data here includes large and complex sets of data that arc usually collected by the telecommunication companies offering mobile money services. This data includes, but is not limited to information relating to an identified or identifiable natural person by which this person can be identified, directly or indirectly in particular by reference to an identification number or to one or more factors specific to his/her physical, physiological, mental, economic, cultural or social identity. If left unprotected, such information is vulnerable to potential abuses and misuse. A data protection framework is thus not only vital to guarantee right to information privacy of individuals but also to necessary to ensure the continued success of mobile money as such a framework would give individuals increased confidence in using mobile money services. This paper thus outlines the need to have in place a clear data protection regulatory framework in Kenya that clearly outlines the processes of data collection, retrieval, processing, storage, use and disclosure of personal data associated with mobile money transfers. The paper does this by discussing the need for privacy protection with regards to mobile money transfers, critically examining the Data Protection Bill 2013, and lastly looking at best practice from Ghana.
Regulatory challenges of banc-assurance: a comparative analysis between Kenya, India and south Africa
(Strathmore University, 2018) Nungari, Ivy Kiguta
The provision of insurance and banking products and services through a common distribution channel or to a common client base is referred to as banc assurance. Today the situation has totally changed wherein each and every individual in relatively every edge of our country has access to insurance products because of the role played by banks in the distribution. The part that banks play as intermediaries in the distribution of these products to consumers through their tremendous networks produce enormous business incomes all around. In Kenya, banks and insurance agencies have collaborated to offer insurance products to customers regardless of want of regulations governing these partnerships. This issue is aggravated by the way that these partnerships between banks and insurance agencies have for a long time been prohibited by express provisions of law. Here lies the issue that this paper tries to investigate and resolve. The paper recommends direction of banc assurance and proposes a system, which such control should take. The main strategy adopted in this paper is the risk based research approach.
The Regulation of digital credit in Kenya - The Case for consumer protection
(Strathmore University, 2018) Mitheu, Joy Makena
This dissertation seeks to makes a case for consumer protection for digital credit. Digital credit is a form of lending of short term loans while leveraging digital infrastructure. Digital credit is automatic and easily accessible even to those unserved and underserved by the formal financial institutions. Digital credit is therefore a technological tool of financial inclusion. However, if digital credit is not properly regulated, there are chances of the consumers being exploited. This is because of the vulnerable nature of the consumers who are unbanked, poor and financially illiterate. There are various consumer risks that arise as a result of digital credit. The risk of over-indebtedness is the focus risk of the dissertation. The dissertation also makes a comparison with India’s regulatory framework given the rampant use of digital credit in the country and the economic similarity of Kenya and India. The dissertation finally gives a regulatory framework that can be adopted in Kenya to protect these consumers.
The Use of traditional dispute resolution mechanisms in resolving human-wildlife conflicts in Kenya
(Strathmore University, 2018) Mwenda, Tevin Gitonga
Human-wildlife conflicts are not adequately addressed in the current legal framework. This is because the current legal framework mainly relies on litigation, compensation and killing of animals to resolve human-wildlife conflicts. The problem with these forms of resolving conflicts is that they do not achieve any form of restorative justice. In addition to this, they create a rift between the involved parties and end up affecting wildlife conservation efforts. This has created a need to come up with alternative methods of resolving human wildlife conflict. Since most human-wildlife conflicts occur in areas which border community land. The most appropriate method to resolve disputes would appear to be the use of Traditional Dispute Resolution Mechanisms. The Constitution of Kenya 2010 under article 159 recognizes Traditional Dispute Resolution Mechanism as a method of resolving conflicts. The constitution recognizes the benefits of using these methods to resolve conflicts. The Wildlife Conservation and Management Act 2013 contains provisions that allow for the formation of wildlife associations. These associations are formed by the community. One of the purposes of this associations is to resolve Human-wildlife conflicts. This study found out that if this association adopt Traditional Dispute Resolution Mechanism to resolve human-wildlife conflict, they will promote restorative justice. It did this by first looking at the current legal framework governing Traditional Dispute Resolution Mechanisms in Kenya. It then looked at the current legal framework used in resolving human-wildlife conflict. In addition, it then looked at the viability of using TDRMs in resolving human-wildlife conflict. The study elaborated on how TDRMs can be used to resolve human-wildlife conflict. It contends that, this can be done by the wildlife associations including the people in charge of resolving disputes in communities in the associations to handle any cases of human-wildlife conflicts that touch on the community.
An Analysis of the status of cohabitants in Kenya law and the challenges they face
(Strathmore University, 2018) Watiri, Salmer Karimi
The Marriage Act1 does not provide for cohabitation as a legal union m Kenya. It only recognizes Customary, Hindu, Islamic, Christian and Civil marriages.2 The Marriage Act does however provide a definition for the word cohabit to mean, "To live in an arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage."3 The statement of the problem of this dissertation is that, failure of the law to recognize cohabitation as a legal union subsequently results in the lack of a clear stipulation with regards to the status of cohabitants in Kenyan law and more so on the protections allowed under such a union. The assumption is that parties in a cohabitation union are entitled to some of the rights and protection that parties in a legal union enjoy and that the parties are aware of these rights. The courts have attempted to accord these rights to the said parties and recognize cohabitation unions by applying the common law principle of presumption of marriage. The application of this principle in the Kenyan legal system has consequently attempted to provide a better understanding of cohabitation. This is discussed in the land mark case of Hortensiah Wanjiku Yawe v Public Trustee4 which set out the factors that are now considered when determining if there is a presumption of marriage between two parties.
The Investigation and prosecution of sexual and gender based violence in Kenya
(Strathmore University, 2018) Wambui, Rose Mburu
The objectives of this research project are to outline the laws currently enacted to govern and combat Sexual and Gender Based violence in Kenya (SGBV), to outline the investigation and prosecution process of SGBV by laying out the roles of the participants in the process and to determine whether the process has been successful in responding to SGBV. The process shall also be examined from the lens of SGBV in Post-Election Violence. The participants are the victim, police officers, medical officers, and the prosecution. The scope of the project is the practice of investigation and prosecution of SGBV and does not assess the causes and effects of SGBV. The methodology used is desk based research with a focus on internet and library qualitative resources. The project finds that the practice of investigation and prosecution of SGBV in Kenya has not been successful in its response to SGBV. It is concluded that it is mainly because the roles of the participants in the process are not fully performed by them as required by law and policy thus creating gaps in the investigation and subsequently the prosecution of SGBV. The main suggestions are the proper implementation of the legislation and comprehensive policies already in place, creation of gender desks at all police stations and for the continued training of the participants.
The Case for structural interdicts in the protection and fulfillment of socio-economic rights in Kenya
(Strathmore University, 2018) Doc, Cephas
In 2010, Kenya promulgated a new constitution that bore all the hallmarks of progress and which is widely considered transformative. One stark example of this was the unprecedented inclusion of Socio - Economic Rights under in the constitution under Article 43, thereby granting very high legal status to these rights which have been traditionally considered the results of proper social and governmental order crystallized in protection and fulfilment of civil and political rights. This in effect created the possibility for a plethora of transformative jurisprudence in the Kenyan legal landscape with the judiciary leading the way through proper interpretation of the law concerning human rights and defining contours of enforcement of the same. This new order brings with it novel remedies for compliance in the event of a breach of economic and social rights. One such remedy is the Structural Interdict (supervisory orders) which allows a court to monitor compliance with its orders over a specific and determined period of time after a declaration of rights has been made. Although now nipped in the bud, this remedy was in use in Kenya and increasingly gained legal notoriety up until the Court of Appeal capped its use in the landmark case of Kenya Airports Authority v Mitu-Bell Welfare Society & 2 others [2016} eKLR (herein after referred to as 'The Mitu-Bell Case'). This dissertation analyses that decision in light of the transformative ideals of the Kenyan constitution and proffers a contrary perspective. It considers the judgment of the court of appeal, although well-reasoned, severely retrogressive and inimical to the ideals of progress espoused by the Constitution of Kenya 2010. The arguments of the Court of Appeal are considered, analyzed and countered; hence the case for structural interdicts in Kenya.
Cyberwarfare regulation - A Liability and jurisdiction disquisition
(Strathmore University, 2018) Makory, Jade Cynthia
This dissertation addresses cyberwarfare regulation through the lens of liability and jurisdiction, seeking to address its three objectives: an analysis of the legal framework regulating cyberwarfare in international law; an analysis as to how liability with regard to cyberwarfare may be addressed; and, a further analysis as to how jurisdiction with regard to cyberwarfare may be established. The methodology used to conduct this research was desk research with the relevant materials being analysed to give relevant insight. It was not possible to carry out field research because of how sensitive matters pertaining to warfare are, and to this regard, most of the information not published is confidential. Chapter 2 addresses the first objective. It looks at both positive and normative international law as they both constitute important dimensions of international law. It goes a step further to mention the two Tallinn Manuals on cyber operations which constitute soft law. Chapter 3 addresses the second objective. It looks at both individual and state liability. Chapter 4 addressed the third objective. It looks into the principles of establishing jurisdiction under international law. Sovereign immunity and inviolability are also looked into because they provide exceptions to the establishment of jurisdiction. Chapter 5 addresses the recommendations and provides a conclusion to the dissertation. The legal solutions recommended include: there ought to be established an international treaty that will address the issue of cyberwarfare; if it is not possible to have consensus about a treaty, there ought to be an international tribunal for cyberwarfare established by the Security Council drawing its mandate from Chapter VII of the Charter of the United Nations; the mandate of the World Trade Organisation should be expanded to deal with digital industrial espionage; the definition of aggression should be expanded to incorporate cyberwarfare; and, capacity should be built on the international level to address the issue of cyberwarfare.
An Analysis of epistolary jurisdiction as a viable means of access to justice for Kenyans
(Strathmore University, 2018) Kavenya, Sophie Muya
Access to justice consists of the dispute resolution mechanisms which are affordable, within reach and ensure justice without undue delay and whose processes and procedures are understood by anyone seeking redress from the courts. 1 Consequently, this population as a whole might not easily access justice; there is need for mechanisms through which they can seek redress aside from the formal justice system. The situation in Kenya right now does not allow for the easy commencement of court proceedings without the usual rigorous process that comes before it. This process, as outlined in the Civil Procedure Rules under order 3, is very hard to understand for the average Kenyan and often discourages most if not all people who cannot understand the process of starting proceedings. Tills is one of the reasons why Epistolary Jurisdiction would be a welcome approach for access to justice. It will ensure that justice for all is sought according to the Article 22 (1) which talks about the right of every person to institute court proceedings based on the claim that a right or fundamental freedom has been infringed, 2 and that the system accommodates the poor in society as well which is in accordance with Article 22 (3)(b) which allows for the Chief Justice to make rules providing for court proceedings under clause (1) which minimize formalities relating to the commencement of proceedings. Moreover, without equal access to justice, the poor are unable to seek redress against those who wrong them. This is very dangerous as a lot of these people are pushed into an endless cycle of unfair treatment. This further weakens their ability to seek redress, as the lack of a means to justice almost becomes the norm and is dealt with in the silence of homes, never to be spoken of
A Critical analysis of article 24 on the limitation of rights and fundamental freedoms under the constitution of Kenya 2010
(Strathmore University, 2018) Maingi, Patience Syekonyo
This study sets out to critically examine and assess the main limitation provisions of Kenya's constitutional framework in providing a safeguard to the limitation of rights and fundamental freedoms vis- a-vis the international legal instruments that protect human rights thus setting out an internationally agreed upon standard for the limitation of rights. This study breaks down the provisions and examines it to see if they comply with the minimum requirement of a standard that is derived from an examination of three international instruments that set the stage with regard to the limitation of rights and fundamental freedoms. These instruments are, the African Charter on Human and Peoples Rights (ACHPR), the International Covenant for Civil and Political Rights (ICCPR) and The International Covenant for Economic, Social and Cultural rights (CESCR). Generally, limitation of human rights must take into account the protection of public interest and the rights of the individuals. The structure of a limitation form may take a general form, meaning that it limits all sets of rights or a rights specific clause that limits specific rights. However, under article 24 of the Constitution, if the enjoyment of an individual's right and fundamental freedoms prejudice the rights and fundamental freedom of another, the law provides a limit to that enjoyment. This paper will attempt to identify and discuss the jurisprudence of Kenyan courts on the limitation of human rights, the process by which Courts in Kenya have interpreted this limitation and how this provision measures up against international instruments which provide the International threshold on limitation of rights. The study eventually reveals that in order to legally limit rights, the state must balance rights and interest of the individuals with that of the state so that the limiting measures should not outweigh the actual circumstances that necessitate the restriction, they must be non-discriminatory and finally not make a country avoid her obligation under international law.
A Critique on prosecutorial independence in Kenya: the Office of the Director of Public Prosecutions and its effects on the attainment of the rule of law
(Strathmore University, 2018) Dido, Diana Madina
A Critique on prosecutorial independence in Kenya: the Office of the Director of Public Prosecutions and its effects on the attainment of the rule of law Prosecution is a key role within the criminal justice system. In Kenya the Office of the Director of Public Prosecutions (ODPP) is responsible for prosecution. The ODPP being a relatively new institution that is critical within the criminal justice system, makes it important to gauge its progress early enough to ensure it operates optimally. Therefore, the main aim of this paper is to analyze the effects of prosecutorial independence to the ODPP's role in the attainment of the rule of law. The study gives a critical analysis of the development of prosecutorial independence. in Kenya. It goes further to analyze the effects of this independence to the functions of the ODPP in a bid to assess the consequent impact on the attainment of the rule of law. The study is undertaken through a comprehensive data analysis of cases and reports. The study hence finds that prosecutorial independence has facilitated the attainment of the rule of law through the ODPP's mandate. The study further goes ahead and gives recommendations aimed at improving the ODPP's operations consequently facilitating the attainment of the rule of law.
An Evaluation of the efficacy of the the current land laws in resolving public land grabbing in Kenya
(Strathmore University, 2018) Mburu, Ivy Nyambura
Public land grabbing in Kenya traces its roots to the post-colonial era when the government of Kenya began buying back Kenyan land from the colonialists so as to settle the landless natives. However, this process was marred with irregularities which saw politicians, the elite and their associates benefit and amass large tracts of land. Over time, by different governments, various land reforms have been put in place to address the issue. When the new Constitution of Kenya was promulgated in 2010, it in turn led to an overhaul of the land laws in Kenya. Resultantly, three new Acts: the Land Act, the National Land Commission Act and the Land Registration Act were enacted in 2012. This study explores the causes and impacts of public land grabbing and evaluates the efficacy of the new land laws in addressing the problem of public land grabbing in Kenya. It explores the limitations of the legal framework in solving public land grabbing. The study also evaluates the institutions mandated with land administration and management and their ability to deal with the public land grabbing problem.
A Study on community service orders in Kenya
(Strathmore University, 2018) Chemeli, Mercy Simatwo
This dissertation is a study on the extents to which community service orders are utilized in Kenya as a sentencing option. The research for its writing proceeded on the hypothesis that community service orders meet the restorative justice goal, thus more should be done to ensure that more are meted, especially for petty offences. The dissertation explains the legal framework of these orders by drawing from national as well as international legislation. The statistics presented regarding the number of these sentences meted in the last year establish that they are generally few, and this has been attributed to the general lack of consistency in sentencing that existed before the sentencing policy guidelines were launched in 2016. However, the reforms made toward increasing the number of community service orders meted as opposed to incarceration are highlighted in the fourth chapter, are a testament that eventually the number of inmates in prison will decrease because criminal offenders will be serving CSOs for the petty offences they have committed.
An Analysis of Article 26 (3) on the death penalty in the Kenyan 2010 Constitution
(Strathmore University, 2018) Mwendwa, Kavutha
This study analyses article 26 (3) on the death penalty in the Kenyan 2010 constitution. The Kenyan judiciary continues to sentence convicts to death based on the formulation of the right to life in article 26(3) of the constitution and the death penalty provisions in the penal code. However, the rare occurrence of actual execution has made many view Kenya as a de facto abolitionist state. Moreover, the death penalty though codified is applied only through sentencing and not execution. Using the theories of contextualism, constitutionalism and human rights, this study examines the extent to which the death penalty complies with the constitution, particularly the bill of rights. Through qualitative analysis of case law and secondary sources, the study found that Kenya’s de facto abolitionist status allows for violations of constitutional provisions on the right to life, human dignity, access to justice and freedom and security of the person. This study concludes on the extent to which the death penalty is antithetical to the constitution. To harmonize the penal code with the constitution the study recommends that the death penalty should be legally abolished.
Compulsory acquisition and the right to property - The gaps in the legal framework, practices and possible solutions
(Strathmore University, 2018) Bonaya, Angela Gumato
Compulsory acquisition of land has to be carried out in a manner that strikes a balance between private and public interests without arbitrarily infringing on individual or community rights to property. In order to achieve this, laws governing compulsory acquisition must be clear. The aim of this paper is to find out if there are gaps in the current laws. In particular, it shall focus on the inadequacy of the law in terms of compensating ancestral property rights in land and the lack of a clear time frame within which compensation must be made to the affected land owners. It shall also discuss the current trends of irregular acquisition practices that do not observe the law. This paper shall explain how these inadequacies in the law and irregular acquisition practices infringe on the right to property. This shall be explained with the aid of case law, journal articles, reports and both local and foreign laws. In the end, it shall suggest possible solutions that lawmakers may take into consideration in order to create a watertight legal framework with regards to compulsory acquisition.
Kenya’s duty to ensure implementation of Article 26(4) in enhancing the right to reproductive health
(Strathmore University, 2018) Owino, Lisa Achieng
The Constitution of Kenya (2010) established an entitlement to therapeutic abortions under article 26(4) following advocacy by women 's and international human rights groups that the strict rules regarding abortion in the repealed Constitution were contributing substantially to the country 's high maternal mortality and morbidity. Article 26 was an attempt at compromise between preserving the right to life, which begins at conception as per the Constitution, and the right to obtain an abortion when the life and/or health of the mother is in danger and where it is provided under any other written law. This provision however, has done little to aid the situation on the ground with many women who would fall under the protected class of article 26(4) still obtaining abortions through illegal and unsafe means. Human rights groups have argued that this situation is aggravated by the hesitation of medical practitioners to perform abortion due to the lack of information on the legal parameters of article 26(4). This study suggests that the lack of a framework within which protected women can exercise their article 26(4) entitlement leads to a violation of women 's rights including their rights to reproductive health services under Article 43(l)(a) of the Constitution.
Property rights in cohabitation unions in Kenya
(Strathmore University, 2018) Muniu, Moses Muiruri
Change is one thing in life that is inevitable. One of the changes the world has experienced in the late 20th century and early 2151 century is the emergence of the cohabitation institution. The Kenyan Marriage Act takes notice of the change by recognizing the existence of cohabitation unions. This positive step is negated by the fact that the law goes silent in providing for how property ownership in this unions should be governed. It leads to a case where a cohabitant’s right to own properly as enshrined in the constitution is not realized by them. The situation as explained above has been confirmed through the qualitative research carried out in this paper. The primary sources of data (the statute, books and cases) show that the law goes silent on the issues of property rights, and the cases prove that the cohabitees are affected in a detrimental way. The comparative study on the other hand, supports these papers view that it is possible to avail property rights to persons in cohabitation unions. Scotland has successfully codified these rights while England has drafted a bill set to cover these rights. This paper goes on to identify the opportunities and challenges which Kenya will face in borrowing from the comparative study in formulating a legal framework protecting the property rights of cohabitants. The paper concludes that the solution to this problem will be the legislators drafting a law which helps the cohabitees realize their right to own property as provided by the constitution.
Legal recognition of style as an expressive right under the Kenyan constitution
(Strathmore University, 2018) Chioma, Augusta Offokansi
The main objective of this research project is to show that style is an artistic right whose freedom of expression should be protected by the law. This research is based on various sources of information such as; study of already conducted interviews and polls from independent, accredited organizations, professional opinions, statutes, international legal instruments and analysis of case law. The most important finding from this research project is that style discrimination more often than not leads to violation of ones' human dignity. Lastly, my major recommendation is that style be recognized as an expressive right by the law, that is, freedom to express style should be included as a right by law makers'.
To assess the role of the National Land Commission to resolve the problem of historical land injustices in Kenya
(Strathmore University, 2018) Kabue, Sharon Wamucii
Land matters are commonly dealt with by way of litigation. Historical Land injustices however, are complex because of the web of interests and rights involved; as such they cannot properly be resolved through litigation. Furthermore, Kenya's litigation process is adversarial whereas to adequately resolve these injustices a process that ensures a win-win solution is desired. This study, investigated: the use of Alternative Dispute Resolution pursuant to Article 252 (l) of the Constitution of Kenya to resolve historical land injustices; that is the power of the National Land Commission to utilize mediation, conciliation, and negotiation in addition to traditional dispute resolution mechanisms. The study anal ysed the Commission's powers as well as the inherent limitations of alternative dispute resolution in resolving land matters. A qualitative approach was taken in examining research on Alternative Dispute Resolution and the history of Historical Land injustices. It established that one of the benefits of ADR that makes it a suitable option in resolving historical land injustices is that it looks at each dispute on a case by case basis; and the parties curve out the process to best meet their needs. The history of historical land injustices dates to Kenya as a British Protectorate and the laws enacted some of which were still in place after Kenya attained independence. Kenya's' history showcases that various commissions were established which made recommendations on how historical land injustices would be resolved ranging from a change in laws to the establishment of a commission to specifically investigate claims. The National Land Commission is mandated to carry out investigations into complaints after which its recommendations are furnished to the relevant authorities. Moreover, they have the duty to encourage parties to utilize Alternative Dispute Resolution. The procedure utilized to Investigate claims was analysed in addition to the effect of the recommendations issued by the Commission. The Commission has no enforcement powers and relies on the relevant authorities to implement its recommendations. History however, showcases that when enforcement is left to other parties ' enforcement rarely takes place. The study thus recommends that the mandate of the National Land Commission as pertaining to historical land injustices is that it be established as a quasi-judicial body and as such will have the power to enforce its recommendations but under supervision of the High Court.
The Unlawful impact of counter - terrorism operations on freedom from torture
(Strathmore University, 2018) Agiso, Christine Adhiambo
Terrorism has greatly affected Kenya for over a decade, with recent attacks occurring as a result of the deployment of the Kenyan military to neighboring country Somalia. Terrorism is a matter that affects national security and the well-being of society. The government has been prompted to take drastic measures to counter terror attacks. The measures employed by the government to counter terrorism have had a profound impact on human rights. There has been a violation of human rights more specifically, freedom from torture. Freedom from torture is an absolute right and derogation from this right is not justified under any circumstance. This research provides a case study that highlights the various ethnic and religious groups that have been targeted during counter-terrorism operations and whose freedom from torture has been violated. The study seek to provide ways in which security agents responsible for the violations are held accountable and ways in which further violation could be prevented.

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