SLS Projects, Theses and Dissertations

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Introduction of affirmative action in the composition of Kenya's parliament; a critical evaluation
(Strathmore University, 2016) Nyamongo, Jared Mogaka
This project aims to analyze the effectiveness of Article 97(1)(b) and Article 98(l)(b) of the Constitution of Kenya in ensuring there is substantive representation of women in the parliament of Kenya. The dissertation analyses the contributions of women in the 11 111 parliament. The study utilizes a documentary review using sources of primary data such as records of members of Parliament who spoke, bills and various policies that were introduced and by whom they were. The study finds that the Articles have increased the participation of women in the 11 111 parliament. They have also resulted in pro-female policies and legislation being discussed in parliament. The study recommends that we must not restrict women to the "role of the kitchen" and that we must legislate laws that increase the scope of affirmative action to all aspects of the public service and not just parliament.
Access to justice: epistolary jurisdiction as a means of improving access to justice in Kenya
(Strathmore University, 2016) Paranta, Edward Ritei
Access to justice is cardinal to the success and well-being of any democracy. To this effect various legislative mechanisms and avenues have been instituted in different democracies to ease enjoyment of this cardinal right especially to the poor and the under-privileged. Epistolary jurisdiction is one of such mechanisms whose roper exploitation and institutionalization would go a long way in improving access to justice. Access to justice in Kenya has faced a myriad of challenges. Resulting thereof, the poor have fallen victim to systemic barriers due to the unavailability of formal mechanisms through which they can pursue their claims. This dissertation explores the viability of epistolary jurisdiction as a means of improving access to justice in Kenya. Additionally, it seeks to explore the sufficiency of the existing legislative framework with regard to the exercise of epistolary jurisdiction. Moreover, it strives to draw some valuable lessons from other jurisdictions that have already institutionalized the practice of this jurisdiction. This research has been carried out with reference to the available secondary documents .Most of the requisite information could be accessed either through books, papers, and website or published journals.
Abuse of diplomatic immunity in bilateral relations: a critique on the vienna convention on diplomatic relations, 1961
(Strathmore University, 2016) Kolo, Nimmasoko
This study examines the abuse of diplomatic immunity and privileges. This study further gives an analysis ofthe Vienna Convention on Diplomatic Relations which has been ratified by many states. The Convention is established to govern the diplomatic relations. The study establishes the fact that diplomacy has been in existence before the adoption of the VCDR. The study notes the fact that the provisions in the VCDR has contributed to the abuse of diplomatic immunity and privileges. The hierarchy of norms is also brought into the lime light as to whether the immunity granted to diplomatic agent should be giving paramount interest to human rights of the citizens of the host state.The study notes that there have been challenges in implementing the VCDR due to the contradiction in the provisions in the Convention. The underlying theory which is the theory of functional necessity is stipulated in the preamble as the fundamental basis ofthe immunity granted to diplomats, it has been noted in this study that this theory has not been upheld in practice. In establishing the weaknesses attributed to the Convention as well as establishing the fact that an abuse has happened, the theory of functional necessity was used as a guide. Various case studies were used to highlight the abuse ofdiplomatic immunity as well as the challenges in implementing the Vienna convention. The paper further notes the fact that the persona non grata and the waver of immunity provided in the VCDR do not serve as a form of deterrence to other abuses, hence a need to include other stringent provisions to deter the abuse of diplomatic immunity.
Battle against corruption: significance of effective whistleblowers' protection law in Kenya
(Strathmore University, 2016) Gacheru, Wanjiru Christine Angelina
Whistleblowing is one of the various key detection mechanisms used to uncover corruption in both public and private sectors. Whistle-blowers are those who give up information to the relevant authorities. However, they are often in danger of various threats to their life and safety by powerful individuals whom they intend to report. It is against this backdrop that this study highlights the importance of their protection through the enactment of laws in the fight against corruption. A disappointing finding is made of the inadequacy of laws in existence in Kenya for the protection of whistle-blowers given the clear correlation between lower levels of corruption and the existence of such laws. And whilst the study finds that legislation is important, it also admits that implementation will be a challenge if the rule of law is not respected. Further, the substance of proposed laws should also be given due consideration and it is to this end that the paper highlights some key aspects (both substantive and procedural) that ought to be included in the drafting of such laws in Kenya.
Gay rights are human rights: a case for the decriminalization of homosexuality in Kenya.
(Strathmore University, 2016) Kimemia, Mary Wambui
At present, Kenya's Penal Code prescribes a punishment of up to five years imprisonment for the offense of 'gross indecency' between males; whether committed in public or private. It further criminalizes sexual relations between males which the Act refers to as indecent practice between males" and "carnal knowledge ... against the order of nature"; thus forming Kenya's anti-sodomy law clause. This is despite Kenya's ratification of international law instruments such as the ICCPR, ICESCR and the African Charter on Human and People's Rights; all which prohibit the decriminalization of homosexuality.This paper, taking a normative approach, looks at the provisions of the above instruments and the judicial decision arising from them and establishes that the said instruments do in fact prohibit their state parties from criminalizing homosexuality. It then uses South Africa as a comparative study from which Kenya can and should borrow from; with its inclusion of sexual orientation as a non-discriminatory ground in its constitution. It therefore establishes that there is in fact an international law and comparative law consensus against the decriminalization of homosexuality.It then looks at the legal and practical situation in Kenya and establishes that Kenya is in fact in violation of its international law obligations. In conclusion, it offers several recommendation key among them, the decriminalization of homosexuality in Kenya.
Data protection within the cloud: lessons for the new African data protection regime from the European data protection framework.
(Strathmore University, 2016) Mbabu, Oscar Koome
The digital wave has finally hit Africa, and its effect upon the African economy has been immensely positive. With the development of innovative products such as Safaricom's M-Pesa money transfer service, as well as iCow, a farming digital product that has optimized dairy farmers' productivity, the consumer market has developed an appetite for sound, data-centric solutions in order to enhance the various socio-economic activities present within the Continent. At the centre of the immense adoption of emergent technologies by the African populace is one of the most valuable resources present in the current technology era; data. The latter enables the adoption and execution of innovative strategies by multinational companies in order to minimise costs and maximise profits. Moreover, the widespread use of Big Data technologies and the incorporation of data into corporate strategies enables efficient market segmentation as solutions are tailor-made to suit specified clientele according to their needs. The latter leads to products that effectively lead to technological leaps and contribute immensely in terms of trickle-down benefits to the larger society. This could go a long way in combating familiar foes of African development such as ignorance (through educational platforms, such as Coursera), disease (through healthcare solutions such as HelloDoctor) and poverty (the kuhustle.co.ke application has enabled the provision of on-demand software services to the public through a bidding process, leading to access of cheaper affordable services for customers, while generating revenue for the biddee). . .~ Despite the monumental opportunities presented by the advent of emergent technologies, specifically cloud technologies whose proliferation in Africa is abundant, the African Union 's member states remain largely unprepared for the data presence within their jurisdictions. Only seven out of fifty-four African States have a working data protection policy, while the mobile phone industry continues to post sales of upto 50million units per year within the African market. The exposure to the violation of consumer rights as well as privacy rights guaranteed by the Universal Declaration of Human Rights is immense for citizens of African States . This paper intends to analyse the various data protection principles sourced from the European Union, whilst juxtaposing it with the present African data protection regime, insofar as the recent adoption of the African Union's Convention on Cybercrime and Personal Data Regulation is concerned. This paper will also critically analyse the encounter between an emergent, cloud¬based technology and the Kenyan jurisdiction, in the case of Bernard Murage v. Fine serve Kenya Limited & Three Others, in order to understand the state of Kenya's data protection standing in the current crisis. Finally, this paper will give the author's humble recommendations based on the view of more prominent Internet jurists who have dealt with the subject matter
Obligations of non-state parties to the Rome Statute to cooperate with the international criminal court : a look at Libya and the Sudan
(Strathmore University, 2016) Nzioki, Benedict Munene
For the longest period in the history and development of International Law, the main subjects of it were states, in and of themselves. However, with the coming into force of the Rome Statute of the International Criminal Court (ICC) in July of 2002, a great and substantive shift was experienced in this area of law. The Rome Statute made individuals the primary subjects of ICL; they could be held jointly and personally liable for crimes such as: crimes against humanity, genocide, war crimes and the last envisioned crime is the crime of aggression. In the Statute and thus far, the ICC has no police enforcement agency of its own; it therefore relies on states and other players in the international law arena to be the enforcers of its decisions and orders.' This is however not the case as not all states act in good faith when it comes to ICL and honoring of the orders of the ICC, since not all states are parties, and even if they are, not all of them necessary cooperate with the ICC, as was exhibited by South Africa when it failed to arrest Ornar Al-Bashir, an inductee of the ICC, whose arrest warrant remains unsealed, yet South Africa is a party to the Rome Statute. This paper therefore focuses on the concept of state cooperation with the ICC, especially cooperation of both state parties and non-state parties to the Rome Statute when it comes to situations in which the indicted persons are nationals of a non-state party. This paper shall limit itself to only two jurisdictions in which this state of affairs is currently existent: the Sudan and Libya, and shall assess their progress (or lack of it) in cooperation with the Court thus far.
The suitability of traditional dispute resolution mechanisms in adjudicating criminal matters in Kenya
(Strathmore University, 2016) Njoroge, Wairimu Jacqueline
The existence of ethnic groups in a society results in the employment of justice systems that are uniquely designed to fit the culture of such a people. These systems tend to be informal in nature as they apply only to the people in that ethnic grouping.In most cases, they exist within an already acknowledged formal justice system. One that is structurally, procedurally and substantively different. However, the two systems are similar but not identical. Similar because they purpose to achieve justice within a transparent system, but not identical because they employ different techniques in order to achieve that justice.This paper examines the position of traditional dispute resolution mechanisms (TDRMs) in the context of criminal matters following the promulgation of the Constitution of Kenya, 2010. The paper argues that although the traditional systems are lacking in some regards, they act as a complementary tool to the formal justice system.By interrogating the traditional justice systems m other states, the paper demonstrates that traditional dispute resolution mechanisms are ideal for adjudicating criminal matters in Kenya.This is against the background of the backlog of cases in the courts as well as the procedural technicalities that have rendered the formal criminal justice system to some extent ineffective.The paper suggests that the role of the State is important in order to create a complementary cord between the formal and the traditional systems. The ways in which the State can effectuate this are explained in the paper. This is removed from the situation of traditional systems coupled with the success of other systems implemented in the world .
Walking the tight rope- balancing private property rights of individuals and the right to housing of informal settlers
(Strathmore University, 2016) Matu, Doris Wanjiru
The purpose of this research is to show the conflict that arises between the right to property for owners of land and the right to housing of the informal settlers on these lands. The main objective of this research is to investigate the concept of illegal forced evictions and the legal framework that surrounds the practices that render such evictions against the principle of human dignity and the right to accessible and adequate housing in the context of informal settlements. There will be an attempt to show cause for the current homelessness situation that has been brought about by past and present irregular and illegal land allocation.The research method used is the doctrinal research method which involves itself with the analysis of legal rules and formation of doctrines. The framework that regulates forced evictions in Kenya and the right to housing in the informal settlement sector has been investigated and the obligations of the state with regards to the right to housing and the protection of prope1ty analyzed.This research has come to the conclusion that a lot remains to be done to change the culture of impunity that is usually the case during evictions. Too many rights are violated. Too many people are injured and humiliated. They are in desperate need of a court system that can correct the imbalance that seems to favor the right to prope1ty. There is a need to come up with solutions that are innovative and that can lead to justice and positive transformation of society.
Employing participatory rights in kenya's extractive sector to promote development
(Strathmore University, 2016) Mutsotso, Angela Khanali
Kenya is a country that has actively began the process of exploring its underground minerals the most famous being the discovery of oil and gas, Tullow Kenya estimates that the South Lokichar basin contains 600 million barrels of extractible hydrocarbons'. There is Titanium Mining currently going on in Kenya. As of 2015 annual Titanium exports from Kenya fetched over US$150. The Base Titanium Project adds approximately US$125 million to Kenya's GDP annually.Seeing as Kenya is a developing country and a young democracy it is important for the government,citizenry and extractive companies to be wary of the possibility of economic and environmental shock on the country, and taking from the experiences of other countries it can result in immerse wealth and economic growth or in violent conflict.This paper seeks to explore how Kenya can avoid violent conflict as witnessed by other mineral rich economies, through promotion of participatory right. In this case participatory rights are viewed from the angle of State Participation (which encompasses benefit sharing and local content) and Access to Information (which involves the right to information and free, prior and informed consent of indigenous communities. This paper discusses participatory rights in depth from the two perspectives described above. Subsequently, the paper will embark on a case study analysis comparing the experiences in Canada with regards to Informed Consent and involvement of the Aboriginal community in mining activities and Norway with regards to protection of the right to access information and state participation.Canada and Norway are of particular interest because of the shared circumstances with Kenya. Canada has had a long successful history of including its indigenous Aboriginal communities in its mining activities, agreements between the mining companies and the indigenous communities have been vital in ensuring effective inclusion of the local communities, we shall use this as a basis for how Kenya can ensure inclusion of its indigenous communities. Norway on the other hand has institutions and legal regimes that ensure access to information, we shall draw lessons from this country.
A Leap forward and a step backward
(Strathmore University, 2016) Waggema, Frashia Grace Nyambura
The prosecution of international criminal law has been introduced into the jurisdiction of the African Court of Justice and Human Rights in a move unprecedented by the international community. On the one hand, this can optimistically be viewed as an attempt by the leadership of the African continent to put an end to impunity and to mete out justice by punishing the perpetrators of the worst crimes known to human kind .However, viewing it through the lens of the African Union's rejection of the International Criminal Court, its open disregard for warranties issued from the Hague and the criticism for the indictment of sitting Heads of State and Government within Africa it may be deduced that rather than indigenizing justice, the AU seeks to pervert the course of justice. To add fuel to this fire, the Assembly of the AU has adopted the contentious Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights. This Amendments Protocol establishes absolute immunity for Heads of State and Government as well as senior government officials during their tenure from prosecution for international crimes. This study, through extensive literature review, evaluates this position and its potential implications on the criminal justice environment of the continent as well as in relation to international consensus.
Security of tenure under the community land bill 2015
(Strathmore University, 2016) Gatumo, Nella Kawira
The onset of Colonialism in Kenya dealt a blow to the customary land tenure by failing to give it legal recognition in preference for the common law private ownership tenure system. This lack of recognition deprives communities of security of tenure over community land. The Constitution of Kenya 2010 requires parliament to enact legislation on Community Land (Community Land Bill 2015) to provide for this recognition and hence security of tenure. This research evaluates the nature of community land rights in Kenya and sets out to answer the question whether the Community Land Bill 2015 will achieve this goal using respondents in Narok County as a case study. The study focuses on answering three research questions; how a community is defined by the respondents, and how this compare to the provisions in the Community Land Bill 2015. What is the bundle of rights contained in the community land according to the respondents and how this compare to what is contained in the Community Land Bill 2015. Lastly, how these first two questions are answered will determine the security of tenure under the Community Land Bill2015. The respondents of the Case Study highlighted that the bundle of rights in the community land included rights of occupancy, use among others. However, these rights are restricted and others seemingly absent. The respondents further also defined the community mostly along ethical lines. These findings are compared to the corresponding provisions of the Community Land Bill2015 which are more encompassing than the views of the respondents. This comparison attempts order to yield holistic results in the area of group ownership of land in Kenya.
Realizing animal rights and welfare: an analysis of the effectiveness of laws on the protection of domestic animals in Kenya
(Strathmore University, 2016) Kimani, Abel Githiri
Throughout human history, animals have been used to improve the life of human beings in several ways. The products they produce such as milk and meat by cows and goats have been used by man as his fonn of sustenance. Other animals such as dogs and cats provide companionship. In addition to these, you have the donkey and horses that carry heavy loads as well as transport human beings. For these animals to effectively carry out their role they require some certain level of welfare. This paper seeks to find a justification for the entitlement of animals to animal welfare. In doing this, it will look at what rights animals are entitled and why they are entitled to those rights. In addition to this, it will look at the rise of animal welfare movements throughout history. It will then look at the current state of animal welfare law in Kenya with reference to the Constitution of Kenya 2010 as well as the current legislation in place, there will be a deeper inspection of the gaps in the law as well as implementation of that law. A comparative study will then be made with the legal framework on animal welfare in the United Kingdom and South Africa. In conclusion, after the findings of the paper have been made, this paper will seek to provide recommendations to the current animal welfare framework in Kenya.
Online piracy of music in Kenya: an analysis of the legal and regulatory framework as well as enforcement mechanisms in place to prevent it
(Strathmore University, 2016) Mutero, Louisa Wanjiru
Although the internet has vast advantages, online piracy of music has posed one of the biggest threats to the music industry. Right holders to music across the world are bearing the brunt of online piracy of their music as they continue to lose revenue which would have been gained had their legitimate recordings been purchased.Online digital platforms have greatly affected how copyrighted works of music are delivered to the public. Online tools have completely changed the nature of how creators share their works with the public, what they produce and how such works can be accessed by the public. Individuals can now access creative works for example music, through an increasing variety of illegitimate online platforms. This therefore necessitates the presence of strong laws combating the menace of online infringement of copyright as well as efficient enforcement bodies and mechanisms to manage and enforce copyright effectively. This paper finds that Kenya's legal, regulatory and enforcement approach to online copyright infringement is lacking. Through comparative analyses with approaches taken in South Korea and the United States of America, the author makes recommendations on how Kenya can improve its current legal, regulatory and enforcement mechanisms so as to better protect musicians from the menace that is online piracy.
Challenge of revenue allocation facing devolution in Kenya
(Strathmore University, 2016) Wangome, Levi Muchai
The Constitution of Kenya 2010, under chapter 11, introduced the concept of the county government system of devolution to Kenya. This brought about a sense of hope to the mwananchi as it signified the return of the government into the hands ofthe people and away from the grasp of the few high and mighty. It also sought to enforce equitable sharing of resources all over the country through county governments.This paper set out to research fmiher into the legal and institutional framework around fiscal decentralization as enshrined in the constitution and find whether the legislation to cater for it, was able to meet the objectives set under chapter 11 .In carrying out the research, journal articles by various authors, statutes and internet sources gave the much needed guidance and material to complete this paper.The study takes a look at Kenya's history with regards to decentralized government, highlights the main laws in relation to fiscal decentralization, critiques the legal framework and draws lessons from South Africa and Nigeria in equitable distribution of national resources in devolved governance.The research ultimately gives various recommendations, especially with regards to legislative reform, that would ensure the growth and success of devolution in Kenya.
Analysing the exclusion of child soldiers seeking asylum under article 1F of the 1951 refugee convention on the principle of the best interests of the child
(Strathmore University, 2016) Muthembwa, Yvonne Wanza
This paper assesses the application of Article IF (a) of the Refugee Convention to child soldiers seeking asylum on the best interests principle of the Convention on the Rights of the Child. In conducting the assessment, there is an analysis of various international and regional legal instruments relevant to the rights of the child, refugee law and international criminal law. There is also an analysis of case law from select jurisdictions concerning the matter.There are several issues that have emerged from the analysis such as the lack of a uniform minimum age of criminal responsibility that has led to diverse application of Article I F (a) to child soldiers seeking asylum. There is also the issue of the legal threshold set out in Article IF (a) that has presented a challenge in applying the exclusion clause. The other issue is whether the interpretation of the Refugee Convention and the Convention on the Rights of the Child based on the Vienna Convention on the law of treaties will help to resolve the conflict. The conclusion made by this paper is that the current application of the exclusionary clause to child soldiers seeking asylum is against the best interests of the child,Thus it recommends that for the best interests of the child to be upheld, there is need for states to agree on a minimum age of criminal responsibility that will promote certainty in applying the exclusion clause as well as a revision of the legal threshold of the exclusion clause to reflect the current legal threshold in international criminal law.
Environmental justice for the Maasai community; reclaiming Land and natural resources
(Strathmore University, 2016) Muritu, Esther Gathigia
Land is man's most valuable resource supporting most basic needs and critical needs of shelter, food and business. Before the advent of colonialism, pastoral communities in Kenya governed their land through the communal land tenure system. The colonial government introduced the English property system replacing it with the communal land tenure system. The Maasai was one of the affected communities. They lost their land to the colonial government through the Anglo Maasai Agreement of 1904 and 1911. This study examines the Anglo Maasai Agreements of 1904 and 1911 during the colonial era and the manner in which it has disadvantaged the Maasai community as a result of land dispossession. It explores the Constitution of Kenya and other key legislations on past historical injustices. The methodology that was adopted was a review of the literature on land policies in Kenya in context of the historical injustices experienced by the Maasai community. The study makes proposals on how best to redress historical injustices by focusing on the National Land Commission that has been given the mandate to initiate investigations on historical injustices and recommend appropriate redress under Article 67(2) (e) of the Constitution of Kenya. Despite there been legislation relating to the redress of historical land injustice, it is inadequate. This research seeks to give proposals and recommendations on how to improve the laws to cater for the protection of the Maasai land rights. The qualitative data was gathered in context of the research objectives; the extent to which the Anglo Maasai agreements were cause of dispossession of land and the extent to which the dispossession in relation to land is a basis for claim for land in redress for the historical injustice under the Constitution of Kenya.
The Legal and regulatory framework governing cyberbullying and harassment in Kenya
(Strathmore University, 2016) Kamau, Peter Ndung'u
Cyberbullying and harassment is a developing phenomenon brought about by the development of the internet. Kenya is ranked 4th highest internet connected country in Africa with internet penetration levels of up to 28.6%. The development of the internet has led to positive outcomes such as improved communication but has also seen the rise of cybercrime. Cyberbullying is only a part of cybercrime with its nature being using information and communication technologies such as social media, email, blogs and websites to cause harm to others. In Kenya, this is on the rise and there is need to develop a working framework regulating against it. The freedom of expression theory may be used as an argument against these laws however, it is established that there are limitations to this freedom under the same Constitution that provides for it.The current legislation consists of the Constitution of Kenya 2010, the Kenya Information and Communications Act and the Cybercrime and Computer Related Crimes Bill of 2014. None of these legislations apart from the Constitution which provides a general outline, deals directly with cyberbullying and harassment.The paper uses qualitative research methodology deriving information from pnmary, secondary and tertiary sources most of these being journal articles, reports and statutes. It also draws comparisons from selected jurisdictions to provide an understanding of how various jurisdictions deal with cybercrime and harassment. This paper also finds that the framework regulating against cyberbullying and harassment is not adequate and needs to be improved on. Amendment of the Bill before its assent, institution of a specialised Cybercrimes Department in the Criminal Investigation Department of the Police and the D.P.P's office, Cyber Resource centres and education and awareness are some of the recommendations made by this paper.
International criminal justice versus state sovereignty: case study the international criminal court and Africa.
(Strathmore University, 2016) Mwai, Maryanne Ng'endo
The objective of the study is to examine the rapid issues facing the court more so problems brought about by the very states that ratified the treaty establishing the court. To analyze this the study seeks to identify the basis of having the International Criminal Court and the criminal cases from different states before the ICC and how each case entails a lot of politics between the court, state's in question as well as other International Bodies such as the United Nations that have some "influence" over the court through the UN Security council. The study will use the theory of realism which states , that states are driven by their own interests and that international law is not law because the international system has no government and no institutions of administration on which law depends on, no legislature to make law, no executive to enforce, no judiciary to resolve disputes and develop the law. The study finds that the International Criminal Court has a role to play in ending impunity since most states are not willing to prosecute perpetrators of these crimes, the ICC may provide hope for victims of these heinous crimes, that the aspect of sovereignty is not the real issue behind African states unwillingness to cooperate but is an excuse to safeguard African leaders selfish diplomatic interests that are threatened by the court's jurisdiction, states are not willing to cooperate with the ICC and are not willing to prosecute international crimes under the Rome Statute The study further demonstrates that there is need to address the root causes of the conflict.
An analysis of the viability of implementing the proposed small claims courts in the kenyan judiciary
(Strathmore University, 2016) Mwaura, Robert Muigai
This dissertation sought to evaluate the viability of introducing Small Claims Courts to the Kenyan Judiciary by investigating the legislative and institutional frameworks that would govern the small claims courts and examining the pecuniary jurisdiction that the courts would operate in if they were introduced. The proposed bill was taken into account and compared to the Small Claims Courts of South Africa. South Africa was chosen an ideal country because just like Kenya, it is a common law country. Finally, this dissertation sought to provide recommendations on the implementation of the courts.The project included a study, that was carried out on 40 advocates who were practicing within the Nairobi area. Secondary sources of information such as internet resources and books were also used in this project. It was evident that there was a lack of understanding of the proposed Small Claims Courts and that the bill had a number of ambiguities. This project recommends that the bill should be reviewed and the public should be sensitized on it thereafter.

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