LLB Research Projects (2020)

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Minor-to-minor sexual consent in Kenya An analysis of the set precedent
(Strathmore University, 2020) Odero, Tracey Auma
Rising incidents of consensual sex between minors has been an area of concern in Kenya being a disputable issue until 2014 when the High court in Eldoret set a precedent in CKW v. Attorney General and Another.1Initially, the position in law was charging the adolescent boy with defilement where he was older than the girl. This was found discriminatory against the boy and the set precedent has been appreciated for its neutrality. However, from the cases decided after this case, the courts are still facing a challenge while dealing with the issue of consensual sex between minors. Furthermore, the CKW case failed to take regard of several aspects that surround the life of the adolescent while acknowledging that they are also citizens with rights. The consequences of the criminalisation of consensual sex between minors has proved that the best interest of the child principle was not carefully assessed. Using mostly legal instruments and case law, this study analysed how both Kenyan legislation and courts have attempted to deal with the issue of consensual between minors. The study then proceeds to make a comparison with South African law. An observation is made from the study which reveals that the criminalisation of consensual sex between minors prevents a good number of adolescents from accessing information such as information on HIV and STDs, that will help them in decision making, raising the number of unwanted pregnancies and HIV infections among them. However, the consequences of allowing adolescents to engage in consensual sex are severe as evidenced by surveys done in South Africa.This study answers the question regarding the effectiveness of Kenyan courts and Kenyan legislation while dealing with the issue of consensual sex between minors Being a rampant issue, the parliament had proposed to lower the age of consent to 16 years as a possible solution. South Africa took this approach and the consequences reveal that lowering the age of consent will be endangering the lives of minors. This paper shall therefore analyse the effectiveness and the deficiencies in the set precedent and finally recommend the guidelines on how the state and courts should instead address the issue of minor-to-minor sexual consent to safeguard the future of the minors while guaranteeing their best interests.
Balance of power in kenya: analysing the contribution of the ODPP
(Strathmore University, 2020) Miano, Antony
The 2010 constitution of Kenya provides for independent institutions which play an important role in the balance of power among the different branches of government. Their major responsibilities as provided for by article 249 of the constitution includes the protection of the sovereignty of the people and ensuring that all state organs observe democratic values and principles. This research shall focus on the Office of the Director of Public Prosecution. It is understood that the purpose of the ODPP is to conduct public prosecutions. This is a shift made to make public prosecutions independent from the AG, who is also a member of the executive by the fact of being the legal adviser to the executive. The ODPP is expected therefore to carry out fair and independent public prosecutions. This research will seek to find out whether the ODPP has, since its commissioning, discharged its duties in an independent manner. It will further explore cases where its independence has been hindered and what can be done to prevent it in future circumstances. The research will use the theory of separation of powers as well as institutional independence, and qualitative research methodology consulting primary and secondary sources of information
Justice in development What is the import of section 152F 2(b) on development induced forced
(Strathmore University, 2020) Nderitu, Brayan Gitau
Forced evictions are a global issue and have led to the displacement of millions of people. The forced eviction regime in Kenya allows a person to seek redress from the court against an eviction notice that has be issued to them. This redress is enabled under Section 152F of the Land Act as well as Article 40 of the Constitution of Kenya on the right to property. The court is called upon under Section 152F (2) (b) to decide on the matter in a just and equitable manner. There is no substantial body of jurisprudence on what ‘just and equitable’ means in the context of forced evictions. This paper will attempt to answer that question in the context of forced evictions done for infrastructure projects and with the use of jurisprudence developed in South African courts on the same.
Accessing justice in Kenya: An analysis of case backlog in Nakuru environment and land court
(Strathmore University, 2020) Onserio, Michelle Nyaboke,
In Kenya, various laws such as the Constitution and Judicial Service Commission Act of 2015, guarantee the right to access to justice as a human right. However, evidence shows that people are not accessing justice expeditiously due to case backlog. This problem arises from several factors ranging from problems in the judiciary’s administrative system to the attitude of judicial officers. An attempt to solve the problem has been the transformation framework put in place by the Judiciary to increase judicial staff and the number of courts. Despite this measure, the problem persists in various jurisdictions. This study seeks to examine factors contributing to the persistence. The research focuses on the Environment and Land Court in Nakuru for the period between 2012- 2018 where the framework has not been implemented yet. The interest of study in the Environment and Land Court is determined by the fact that the Kenya National Bureau of Statistics has ranked it among the courts with the highest case backlog. Moreover, the research assesses how this phenomenon limits the right of access to justice. For the purpose of this analysis, the study uses the Human rights theory from the perspective of legal rights theory. In this regard, the research methodology adopted is the descriptive design approach which entails collecting information sought out from selected respondents by carrying out interviews and/or questionnaires. The study showed that the reforms suggested in the judiciary transformation framework have not been implemented in its entirety therefore creating a backlog problem.
Online copyright enforcement in Kenya An examination of the prospective use of intermediary liability
(Strathmore University, 2020) Sugow, Abdulmalik Adan
Copyright law vests an entitlement in the owner to exclude unauthorized use in their works. The law also vests owners with the sole responsibility of enforcing this private right, often through litigation. However, trends in digital media, have made in much harder for owners to keep track of the use of their content online. These new technologies have increased both the speed and volume of information being disseminated thereby making difficult the identification of infringements, effectively rendering the analog approach to enforcement, untenable. Regions such as the European Union (EU) and countries such as the United States (US) have enacted intermediary liability regimes so as to involve internet service providers in enforcement. These regimes have manifested in different ways: safe harbour systems which provide conditional immunity and more recently, systems which require active-preventative approaches on the parts of intermediaries. Both these regimes have raised concerns of imbalance; either in favour of intermediaries or in favour of owners. Kenya recently enacted the Copyright (Amendment) Act which adopts a safe harbour system similar to those existing in the US. In light of this, the study appraises the different approaches to intermediary liability in the context of the various interests of owners, intermediaries and users and finds that the enforcement of copyright online ought to be strengthened by wider copyright law reform in addition to intermediary liability laws. The proposed reforms include Berne compliant formalities and the encouragement of interoperability of existing copyright registries
Lifting the translucent Veil: The erroneous implementation of article 56 on Kenyan Somalis
(Strathmore University, 2020) Samantar, Asha
Article 56 of the Constitution of Kenya dictates that the state is mandated to ensure protection of the rights of minorities and marginalised groups. This provision aims to align the social, political and economic factors of minority groups with the rest of society. The state of Kenya has a history punctuated by acts of de-humanization, de-legitimization and de-nationalization of Kenyan Somalis. Through an analysis of Article 56, this paper seeks to demonstrate that as a result of preconceived notions, the state has failed to recognize the need for reform in ensuring that Kenyan Somalis are afforded utmost protection across all fronts. The community for the past decade has been shrouded with illegal raids, arbitrary arrests and restricted access to state services in dint of their ethnic and religious background. This has led to a complex and unconstitutional system of arbitrary state procedures implemented across the country, mainly in the former Northern Frontier District. Consequently, informal forms of ultra vires are employed by agents of the state, specifically the Kenyan police force. Further, the dissertation outlines that attempts by the state to integrate ethnic minorities, has produced futile results. The paper will comment on the contributions that historical events such as the Wagalla Massacre and Shifta War have had on the current situation. Lastly the paper will provide recommendations on the protection and inclusion of Kenyan Somalis, and methods through which Article 56 may be implemented efficiently to protect minorities and marginalized groups in Kenya.
Trade secrets in Kenya: A curious case of compulsory acquisition in Kenya’s tobacco industry
(Strathmore University, 2020) Kemunto, Arita Stephanie
This research paper endeavours to establish that trade secrets are ‘property’ under the auspices of Article 40 of the Constitution of Kenya, 2010, whose public disclosure without compensation amounts to unlawful and unconstitutional compulsory acquisition and thus challenge the constitutionality of the Tobacco Control Regulations, 2014. State powers of compulsory acquisition must be carried out on a balance of rights. Hence, the power is subject to limitation in that the deprivation of property must be for a public purpose and compensation must be paid to the person to whom property is deprived. The Constitution classifies intellectual property as ‘property’ and several types of intellectual property are recognised under Kenya’s property law regime with the exception of trade secrets, which are protected under English common law as confidential information. This paper examines whether trade secrets have a place in the Kenyan property regime and delves into a discussion on their compulsory acquisition. The paper, then, analyses the determination in British American Tobacco Kenya Ltd v Cabinet Secretary for the Ministry of Health & 4 others [2016] eKLR on the constitutionality of the Tobacco Control Regulations, and thereafter, conducts a comparative study into the treatment of trade secrets in the tobacco industry in Kenya vis-à-vis in the United States of America. In conclusion, trade secrets are indeed property rights and the Tobacco Control Regulations are unconstitutional to the extent that they mandate the public disclosure of tobacco trade secrets without compensation to tobacco companies. To this end, Regulation 42 should be declared void and State agencies should be mandated to maintain the secrecy of trade secrets disclosed to them pursuant to Regulation 12.
The content and context of unnecessary suffering under Kenya’s prevention of cruelty to animals act of 2012: towards an effective standard of domestic animal welfare
(Strathmore University, 2020) Cheptumo, Jean Jeptoo; Cheptumo, Jean Jeptoo
“Humanity's true moral test, its fundamental test consists of its attitude towards those who are at its mercy: Animals.” -Milan Kundera- The Prevention of Cruelty to Animals Act of Kenya of 2012 is the main legislation in Kenya that directly provides a legal framework for animal welfare. This statute declares it a crime to cause any animal to suffer unnecessarily. This effectively makes ‘unnecessary suffering’ the standard of animal welfare. On its surface, this appears to be a good standard, as it focuses on the experience of the animal, here being the presence or absence of suffering. By its nature, the term unnecessary suffering requires an inquisition into the purpose for which the animal in question at any given point is suffering. Consequently, the purpose can either be deemed necessary, hence acceptable or be deemed unnecessary hence unacceptable, and punishable by law. The focal point of animal welfare therefore is not the animal, rather it is human beings and their needs. Whereas the Prevention of Cruelty to Animals Act under section 3 sets unnecessary suffering as the standard of animal welfare, it does not give any indication as to what this consists of. This lack of clarity in the act’s interpretation leaves great discretion to the courts to determine when suffering is necessary or not. It is important to note that in assessing whether suffering in an animal is necessary, a person’s perception of animals plays a fundamental role in their assessment. This is the same for judges as they are not exempt from the workings of human subjectivity. This paper aims to discuss the meaning of unnecessary suffering, and propose a possible definition for the term unnecessary suffering for use by the courts in interpreting the provisions of the Prevention of Cruelty to Animals Act. This proposed definition is aimed at limiting the scope of judicial discretion and ensuring certain minimum protections for animals.
Sector - specific transparency and accountability mechanism for petroleum revenue in Kenya
(Strathmore University, 2020) Katunga, Norah Syokau
Transparency and accountability are principles enshrined in the constitution of Kenya (2010). In 2019, there was enactment of the Petroleum Act, which states that there shall be an establishment of a transparency and accountability framework for revenue resources in the up – stream sector. National income from petroleum operations are presumed that they should spur economic growth and social development. However, the experiences of some countries in the management of petroleum wealth offers a dramatic illustration of the problems that could arise from resource riches. Typically, petroleum exploration, extraction and revenue management are processes that are: highly technical; capital intensive; involve few people; experiences volatility in terms of production and market; take place in remote locations; and generate very large and sudden revenue inflows. At best, these circumstances challenge policy makers on how to effectively manage the new found wealth and ensure equitable distribution of benefits. At worst, they present prime opportunities for corruption and could trigger the much-dreaded “resource curse”. Kenya’s petroleum discoveries also provide an unprecedented opportunity to boost its economic growth in some of the most remote, under-developed and impoverished areas in Kenya. However, there are concerns that failure to adequately manage the revenues could prevent Kenyans from enjoying the potential benefits from petroleum revenues, as has occurred in other resource-rich countries, which among other things could result in the worsening of the living standards of the people especially the host communities. Due to the many risks related to the extraction of natural resource there is a need to have a transparency and accountability mechanism specifically for petroleum revenues which is propounded in this research. This study looks at the legal regime of transparency and accountability of petroleum revenues and its adequacy. The study also examines the adequacy of the legal regime and the efficacy of budget transparency specifically for petroleum revenues and its relevance in ensuring sustainable development. This research further looks at the impact of having a transparency and accountability for petroleum resource revenues and drawing lessons by studying Norway which has climbed the top of the human development indexes and avoided the Resource – curse at the same time
Reforming the current legal framework to enhance the preservation of endangered species
(Strathmore University, 2020) Faheema, Gatwiri Jaffer
The tourism industry is without a doubt a huge revenue earner for Kenya. Wildlife is a major tourist attraction and constitutes a large percentage of the tourism industry in Kenya. Therefore, Kenya has a responsibility to ensure protection of wildlife, being a national treasure that goes a long way in promoting the economy of the country, in addition to balancing the ecosystem. Efforts put in place by Kenya for the conservation and management of wildlife cannot go unnoticed. However, wildlife and specifically endangered species are still facing threats to date. The objectives of the research are to analyse the current legal framework with the aim of finding whether it is sufficient for the protection of endangered species and how it can be supplemented to enhance their preservation. It has critiqued a few sections in the Wildlife Conservation and Management Act that apply to the preservation of endangered species while identifying gaps in the provisions. The research has also identified the threats that endangered species face as a result to these gaps such as habitat loss and inadequate financing of conservation activities. Finally, through comparative analysis, the research has given recommendations that could reform the laws to enhance the preservation of endangered species. These include improving the identification and listing process and reconciling development projects with the preservation of endangered species
Examining the constitutionality of section 7 of the matrimonial property act
(Strathmore University, 2020) Mundia, Bill
The purpose of this study was to critically examine the current matrimonial property regime in Kenya along with the inconsistencies that have arisen over the provisions of the Constitution of Kenya 2010 and the Matrimonial Property Act. To conduct this study, rigorous desktop research was adopted to execute the main objectives of the study. That is; assessing the legal framework governing matrimonial property from colonialism to date, understanding the reasoning behind Article 45(3) of the Constitution of Kenya 2010, as well as make recommendations, if any, to the current matrimonial property regime in Kenya.
An inquiry into the limits of judicial intervention in the impeachment
(Strathmore University, 2020) Munyao, Andrea Mutete
Article 181 (2) of the 2010 Constitution of Kenya instructs Parliament to enact a law highlighting the process of impeachment of a country governor. This has been done through the County Government Act. Section 33, recognises the County Assembly and the Senate as the bodies responsible for this process. However, the Constitution fails to address at what point courts of law can intervene in this process in an instance where a fundamental right or freedom has been violated. While this is important in a constitutional democracy, courts’ ability to intervene in the impeachment process of governors at any point may unduly interfere with governors’ delivery of their constitutional mandate. Such an unregulated intervention creates confusion between the role of courts of law in the impeachment process, on the one hand; and that of the County Assembly and the Senate, on the other. It is not clear which role should be discharged first. The Supreme Court has failed to provide a solution to this problem when presented with it in Justus Kariuki Mate & another v Martin Nyaga Wambora & another. This study therefore seeks to address this confusion through analysis of judicial decisions and then suggest a way forward
Analysis of anti-homosexuality laws in Kenya The debate on constitutionality and prospects of decriminalisation
(Strathmore University, 2020) Onguti, Corley
In the last couple of years, the LGBTIQ community has been vocal about their rights and against discrimination that they suffer as a result of the criminalisation of homosexuality in Kenya. On a global basis, more countries, including a select few African states, have begun to recognise the human rights importance in decriminalising anti-homosexual laws and further securing the rights of LGBTIQ individuals in their National laws. In the wake of this, members of the LGBTIQ community filed petitions in court challenging the constitutionality of those laws, albeit unsuccessfully. This study has undertaken to establish the court’s rational for upholding these anti homosexuality laws in Kenya, some of the prospects of decriminalising same sex conduct constitutionally, some of the challenges that this exercise may face as well as the implications of decriminalising homosexuality in the event Kenya were to venture in that direction in light of the international human rights position on anti-homosexuality laws
International investment in oil, environmental degradation and the developing world A (Dis)connection
(Strathmore University, 2020) Kahumbu, Joanna Katunge
The study undertaken in this dissertation seeks to assess the position of international investment in the developing world, analysed in the context of the right to a clean and healthy environment. The study highlights the notion that countries interested in attracting international investment often have weak or unenforceable environmental standards. As a result of this, the position of Kenya is analysed with regards to the oil and gas industry with the primary question being: what lessons can Kenya learn from other developing nations that have undertaken international investment in the extractives sector, without compromising on environmental standards? The major finding is resultantly that Kenya has in place the legislative framework necessary to combat the deleterious effects of investment in this pollution heavy industry, but the same framework is found wanting with regards to enforceability and compliance.
Corporate criminal liability in Africa: The discomfiture surrounding the protocol on the amendments to the protocol on the statute of the African court of justice and human rights
(Strathmore University, 2020) Wangui, Eunice Njoki
The corporate criminal liability doctrine has not always been met with open arms in international law. The main concern being the difficulties in assessing the mens rea of a legal entity as opposed to a natural person. The derivative models of attribution of liability helped to relieve some of these concerns by first finding an individual liable and as a consequence, a corporation would be found liable too. However, the era of globalisation has made it so that corporations have developed into more complex structures that make it difficult to identify specific individuals in whom liability should be placed. Consequently, corporations have continued to benefit from their crimes without having to pay the price. It is for this reason that a new model, an organisational approach, has been developed. This model seeks to attribute liability directly to corporations. The proposed criminal division of the African Court of Justice and Human and Peoples Rights (ACtJHPR) seeks to adopt this model in attributing corporate criminal liability. The objective of this research paper is to discuss the viability of application of this model in the African context. This research has mainly been qualitatively based as it has relied on primary and secondary sources. The primary sources have included legislations from different states and international legal instruments. The secondary sources have made the most contribution to this research
The time factor A commentary on the right of a just determination of a petition arising from a presidential election under article 140 (2) of the constitution of Kenya
(2020) Ragot, Nestor
At the heart of a democracy it is the right of citizens to choose leaders who govern them. Through conducting elections, the people constitute government to preside over public affairs. However, in Kenya and other African countries the quality of the elections has many at times been vitiated by fraud, incompetence, unequal playing fieldrigging claims and violence. Partly the problem has historical roots where in the first decade of attaining independence in the 1950s and 1960s, many African regimes rapidly descended into autocracy and many countries formally recognized one-party regimes. In instances where elections are affected by anomalies and its’This leads to disputed results are disputed,and aggrieved parties have looked to theseek for redress from the Judiciary as a last resort. n institution of last hope to seek redress. The Judiciary is faced with the unenviable task of determining the ultimate outcome of the such polls in an election in which the results have been contested in the courtsan incredibly expeditious timeline. Consequently, in order to protect the peoples’ right of choice in an election, and to promote and safeguard democracy, the Judiciary must be perceived as competent, honest, learned and independent. In the view of the foregoing background, tThis paperresearch seeks ought to investigate the challenges facing of the Jjudiciary and litigants in whenever presidential election petitions arisein Kenya and briefly examine other African countries jurisdictions in the adjudication of presidential election disputes. And Iin pursuit of promoting democratic principles and good governance, the paperresearch seeksought to explore the viability of establishing a continental supranational mechanism for resolving disputed presidential elections through adjudication.according both the bench and litigants before it adequate time and resources to collectively and competently deliver the dream of democracy – credible elections.
Sexual Orientation and Employment Discrimination in Kenya A critical analysis of Article 27 of the constitution and section 5 of the Employment Act
(Strathmore University, 2020) Muindi, Annette Kamumbu
The main objective of this paper is to investigate if Article 27 of the Constitution and Section 5(4) of the Employment Act protects LGB persons in Kenya. The other objectives include interrogating the legal framework governing LGB persons in Kenya as well as comparing the Kenyan legal framework to that of USA and South Africa. The scope of this paper is focused on LGB employment discrimination in Kenya. This paper has made use of secondary sources such as books and journal articles. It has also used case law from Kenya and other countries. The major finding of this paper is that sexual minorities are not protected under Article 27(4) of the Constitution and Section 5(4) of the Employment Act. Thus, to this end the paper recommends amending the Constitution and the Employment Act to protect sexual minorities and passing LGB anti-discriminatory laws among other recommendations.
Corporate criminal liability the need to reconceptualize existing corporate criminal liability laws in Kenya
(Strathmore University, 2020) Wambutta, Clementina Isabella
Corporate criminal liability is not a foreign concept in Kenya. Numerous legislations are in place and acknowledge its existence and importance in society. However, the statutes assume that there exists no distinction between natural and artificial persons hence imagines that the implementation of criminal law towards them is analogous. This poses interpretation and implementation challenges as a result of the wide discretionary gap left to judicial officers to decide on how to implement the concept without relying on natural persons. As a result, corporate crimes go without punishment despite the negative impact those actions pose to the society. It denies the implementation of a ‘just regime of punishment’ for crimes orchestrated by corporations. This paper seeks to examine the methods through which corporate criminal liability is addressed by the judiciary and how is established with regard to ascertainment of corporate mens rea. A proposition will be made on the need to create guiding rules and regulations for allocation of corporate mens rea to ensure efficient allocation of guilt.
Under bits and through class actions: Subjecting transnational mining corporations to environmental rights in the DRC
(Strathmore University, 2020) Nciko Wa Nciko, Arnold
In recent times, transnational mining corporations have gained an abundance of powers that few could have foreseen at the institutionalisation of the international human rights regime. Their activities have resulted in dire violations of human rights, especially environmental rights. The international human rights regime has left states with the duty to impose the respect of human rights on all persons, including legal persons such as transnational mining corporations, that are within their respective jurisdictions. However, fulfilling this duty has been a herculean task in many Third World states, in which these corporations have been able to interfere with judicial accountability. Thus, despite violating human rights, they continue to enjoy immunity. In response to this, a few attempts have been made to subject these corporations to human rights at an international level. This study examines these attempts and concludes that they are inadequate. Relying on Third World Approaches to International Law (TWAIL), the study progresses the discussion by proposing an international law mechanism that may subject these corporations to the international human rights regime. This is what it has coined the ‘Under BITs and through Class Actions’ mechanism. This mechanism entails inserting human rights obligations in bilateral investment treaties (BITs) and enforcing them with the help of the class actions. To critically present this proposition, the study takes as case study environmental rights violations by transnational corporations that are mining in the Democratic Republic of the Congo (DRC).
An analysis of Article 32(c) of the EAC treaty the efficacy of arbitration in bolstering the EAC integration agenda
(Strathmore University, 2020) Gathoni, Faith Wanjiru
The EAC has committed itself to the economic integration of the Community. The achievement of economic integration naturally results in the rise of commercial disputes given the increase in cross-border commercial engagement. Arbitration is regarded as the preferred mode of disputes settlement for the private sector. The EACJ boasts of an arbitration mechanism under Article 32(c) of the EAC Treaty. However, this mechanism remains underutilised with only one arbitration case having been heard by the Court. Therefore, this research assesses the Arbitration Rules of the Court with a view to determining whether or not they are desirable for private sector disputants. Furthermore, it examines the role which arbitration can play in augmenting the EAC economic integration agenda. This research employs a qualitative method of data analysis using both primary and secondary sources and inductive reasoning. It reveals that the Arbitration Rules of the Court as they are formulated are not desirable for private sector disputants because they are marred by numerous weaknesses. Furthermore, the research concludes that arbitration can play a key role in ensuring private sector participation in cross-border trade thereby strengthening the economic integration agenda of the EAC

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