LLB Research Projects (2019)

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The Legal consequences of failure to obtain consent of the Land Control Board in agricultural land in Kenya
(Strathmore University, 2019) Sifuna, Stephanie Namalelo
The courts in Kenya have had a myriad of opportunities to interpret salient legal issues arising from the application of the Land Control Act (Cap 302 of the Laws of Kenya) and in particular section 6( 1 ). It has been the subject of many legal disputes owing to the fact that many dealing in agricultural land have negligently, ignorantly or otherwise failed to seek the consent of the Land Control Board and, therefore, rendered their transaction void for all purposes. 1 When such disputes are brought to court some Judges have tried to circumvent the provisions of the Act whereas others have helplessly refrained from any bold attempts to bypass the provisions of this Act. 2 This study investigated the adequacy of the laws that address the legal consequences of failure to obtain consent and analyzed different approaches taken by the courts in reaching a decision regarding section 6 (1) of the Act. The study took a legal approach in examining the theoretical framework on the freedom to contract and the requirement of consent of transactions in agricultural lands. Through the review of court decisions, the study was able to bring out the inconsistency and ambiguity in the approaches taken by the courts in interpreting section 6( 1 ). The study recommends that: consent should be amended by deleting the word void and replacing it with the word voidable and compensation for improvements on the land should be available. In the end, the study makes the finding that the law does not adequately address the consequences of failure to obtain consent of the Land Control Board.
Heaven forbid: interrogating the right to discriminate against homosexuals under Article 32 of the constitution
(Strathmore University, 2019) Otieno, Gregory Junior
Concerns have been raised about the compatibility of religious laws and practices with norms guaranteeing the rights of same-sex couples. Given that some religious teachings declare that same-sex sexual conduct is immoral, and some religions condemn not only same-sex sexual activity but also LGBT individuals, conflicts between the right to freedom from discrimination and the right to manifest one's religion are inevitable. This study considers how conflicts between both rights should be addressed in law. It is particularly concerned with whether religious individuals should be allowed to discriminate in the secular marketplace. It starts from the basis that both these rights are valuable and worthy of protection and contends that a proportionality analysis provides the best method for resolving these conflicts. In particular, it argues that proportionality is a conciliatory method of reasoning because it provides a context-dependent and nuanced answer to these issues, providing scope for re-assessment in future cases. It is also argued that proportionality is advantageous because it inherently demands justification where rights are infringed. The analysis in this study draws primarily upon the recognised sources of Law in Kenya, namely the domestic law of Kenya and the general rules of International law. The study also takes a comparative approach, examining the law in Canada to demonstrate the clash of rights and to compare how these issues have been dealt with by Canadian courts and legislatures.
Implementation of the two-thirds gender rule in Kenya: an analysis of the two-thirds gender rule law (amendment) bill, 2015
(Strathmore University, 2019) Mbaja, Yvonne Apiyo
The purpose of this paper is to analyse the two-thirds gender rule in Kenya and to determine whether there are sufficient mechanisms ~o implement it. This will be done through an analysis of the two-thirds gender rule law (amendment) bill. The two-thirds gender rule was included in the Constitution 2010. 1This analysis will focus on the affirmative action programmes contemplated in the Constitution of Kenya.2 The methodology used to undertake the research is qualitative through library and online research.
Interrogating an african approach to maritime boundary delimitation between adjacent coastal states under Article 83(1) of the United Nations Convention on the Law of the Sea
(Strathmore University, 2019) Alibhai, Azmaira
A natural prolongation of a State's boundary envisioned by the 1945 Truman Declaration favoured a unilateral approach to maritime delimitation proclaiming that 'coastal States have an entitlement to neighbouring seabed areas whether they are in a position to vindicate the claim or not'. 1 Although an attractive form of appropriation of the common heritage of mankind,2 the Declaration is in no way reflective of the dynamics of Third World States, landlocked, and geographically disadvantaged States, unlike Article 83( 1) of the United Nations Convention on the Law of the Sea (herein UNCLOS).3 One of the major concerns that was brought to the fore at The Third United Nations Conference on the Law of the Sea (UNCLOS III) was the initial lack of participation by the newly independent Third World States in the delimitation of maritime boundaries. This study shall evaluate whether the application of Article 83( 1) by international institutions in respect of adjacent coastal African States is indicative of a common African approach to the delimitation of the continental shelf. This study recommends that the regime of international law ought to be more receptive of the effects of equity as demonstrated by international institutions discussed herewith, especially in the adoption of equitable principles in achieving a just global standard. Even though the African approach strives for an equitable standard, those coastal States that prefer (based on their relevant circumstances) the adoption of one of the various technical methods, can employ it through peaceful negotiations and international adjudication.
Choosing the ballot not the bullet: an analysis of the prospects of resolving Unconstitutional Changes Of Government in Africa under Article 28E of the Malabo Protocol
(Strathmore University, 2019) Njoroge, Olivia Wambui
The focus of this study is on Article 28E of the Protocol on the Amendments to the Protocol of the African Court of Justice and Human Rights Protocol (Malabo Protocol) which provides for the crime of Unconstitutional Changes of Government (UCG). The jurisdiction to try international crimes was conferred on the African Court of Justice and Human Rights in 2008 when the AU decided to streamline the existing Protocols. This study assesses how far Article 28E can go to resolve the phenomenon of UCG in Africa. It takes a critical approach to the framing of the provision by comparing it to Statutes that previously provided for UCG such as the African Charter on Democracy, Elections and Good Governance. The challenge presented by Article 28E is the failure to provide a clear and precise definition for UCG that can serve as a guide for the Court when interpreting and applying the provision. The study thus poses that the likely consequence of this oversight is that At1icle 28E will prove inadequate to tackle the diverse manifestations of UCG in the continent. This requires a revision of the provision to take into account the realities of a diverse Africa.
Assessing the infringement of copyright in light of the defense of fair dealing in the digital age of photography
(Strathmore University, 2019) Siganga, Christopher
Photography is described as the art of taking photographs of different subjects which may include people, buildings, food, cars and other objects. Photography is also referred to as an original art, and, within the Kenyan Jurisdiction, arts of a photographic nature are protected by The CA of Kenya1 as well as the CoK2• However, with the advancements in technology and the digital media age where image sharing is encouraged across different platforms, there has been an increase in the risk involved with photographs and photographer's rights being infringed upon by others. This is aggravated by the fact that there is a sense of ignorance amongst the photographer community about the law and how they can protect the rights that are given to them by the CA of Kenya as well as the CoK.
The Use of expert testimony on the Battered Woman Syndrome in the criminal justice system
(Strathmore University, 2019) Ayako, Timothy Ombachi
This project seeks to analyse the use of expert testimony on the Battered Woman Syndrome (BWS) in cases involving women who have killed their abusive husbands. This dissertation scrutinises case law and statutes in two jurisdictions that have allowed BWS testimony to be presented in criminal proceedings: USA and Canada while also assessing the Kenyan criminal justice system and how it handles cases involving battered women who kill their abusive spouses. This study finds that BWS testimony has been used successfully in the said jurisdictions to help courts understand the battered woman's mind-set. The study further establishes that Kenya's approach to the defense of self-defense is insensitive to the realities of abused women.
A Critical analysis of Article 63(1) of the constitution of Kenya: vesting community land rights on urban communities
(Strathmore University, 2019) Nabang'i, Carey Barasa
Land is critical to the economic, social and cultural development of Kenya. 1 Land is also an emotive issue and it was at the core of the resistance to British rule during the struggle for independence.2 Before colonisation, native communities owned land communally through the commons proprietary system.3 The arrival of the Arab traders and British colonialists led to large scale disruption of this system and the introduction of foreign land tenure systems that were alien to the native inhabitants ofKenya.4 After independence, the independence government further neglected community land by not providing it with adequate protection which was as a result of not putting in place adequate laws that would grant it legal recognition. 5 Despite all these, the commons proprietary system remained resilient and did not succumb to the onslaught of suppression and subversion. 6 In 2010 Kenya promulgated a new Constitution and one of its salient features was the recognition of community land.7 Furthermore, the Constitution provides that community land shall vest in communities identified on the basis of ethnicity, culture or a similar community of interest. 8 This dissertation seeks to examine the efficiency of vesting community land on urban communities identified on the basis of a similar community of interest as opposed to culture and ethnicity.
Epistolary jurisdiction: a means of making courts responsive to the needs of the poor in Uganda
(Strathmore University, 2019) Namawejje, Barbra Justine
The objective of this study to suggest the adoption of epistolary jurisdiction by the courts in Uganda to improve access to justice for persons living in poverty. Of the 37.7 million people living in Uganda, 10 million are living below the poverty line and as a result they are unable to access quality services such as transport, food, water, communication and legal services. In the previous years, the government of Uganda has tried to improve access to justice for the Ugandan population but often times these efforts exclude poor persons. A number of legislations have been enacted to enhance access to justice but these are in favor of only certain marginalised groups such as the disabled, women and children. Poor people are left out of the picture. A number of legal aid centres have also been set up but these centres operate in only 30 out of the 127 districts in the country. Additionally, legislation in Uganda has failed to recognise legal aid as a fundamental right and the government has not approved any legal aid policy. However persons living in poverty still face a number of obstacles in accessing justice and often times they are forced to give up. Most poor people actually prefer informal justice mechanisms because they have no confidence in the Ugandan courts. Using the example of India's epistolary jurisdiction, this study asserts that epistolary jurisdiction in Uganda will improve access to justice for persons living in poverty. And concludes that the courts in Uganda should adopt epistolary jurisdiction as a means of lobbying and advocating for the right of persons living in poverty to access justice.
Denial of a fair trial - does a trial in absentia constitute as denial of a fair trial
(Strathmore University, 2019) Owino, Eunice Anyango
A fair trial is one of the most fundamental right that the judicial system can give an accused person to a criminal trial. This is due to the fact that the violation of the right to a fair trial my render the whole trial process unjust. A trial in absentia on the other had means that the accused person was absent from This dissertation seeks to show that in absentia trials are in themselves a violation of the right to a fair trial, the right of the accused person to be present during their own trial therefore accommodations should be made for the accused person to be present during their trial.
Child protection in the family home: the state's role in enhancing the best interests' principle
(Strathmore University, 2019) Ngano, Joy Murugi
The family is regarded by some as a private institution in society that does not require any intervention nor interference by the state. This is in consideration that the state has an interest in its citizens' wellbeing and owes them the duty of protection. This is also linked to the interest in having a society that ensures its members are thriving so as to have productive members. The state's interest intensifies when the members in question are considered to be vulnerable. Children are considered vulnerable in society for they need care and protection to thrive and attain their maximum potential. For the purposes of this research, I will focus on children and how the state ensures their protection in a private family institution while enhancing the best interests' principle. A comparative study between the US, South Africa and Kenya will be used to see the various ways states afford protection to children in the family institution.
Expanding the scope of sexual harassment laws in Kenya: a legal scrutiny of the adequacy of the laws dealing with sexual harassment
(Strathmore University, 2019) Thuku, Faith Muthoni
Sexual harassment IS a violation of human dignity and this paper seeks to analyse the adequacy of sexual harassment laws in Kenya. In doing so, the researcher shall indeed prove that there is a gap in sexual harassment laws in Kenya and illustrate the need for a wider understanding of sexual harassment. Specifically, this paper shall champion for the recognition of various contexts in which sexual harassment can take place, in addition to those that the current legal framework has envisioned. The primary question that drives this research is: What definition and contexts of sexual harassment need to be recognised by the law, in order to provide a legal framework that not only provides recourse for survivors of sexual harassment, but also upholds human dignity and gender equality In order to properly answer the research question, the research shall be conducted using the qualitative research model through desktop research. A comparative study against Australia shall also be conducted in order to contrast the current legal framework in Kenya. It is in doing so that the gaps in the Kenyan law will be realised. Ultimately, the end goal for this research paper is to identify the gaps within the Kenyan law and propose ways in which the identified gaps can be filled thus expanding the current provisions of sexual harassment within the Kenyan law.
Intent to destroy an ethnic group: a failed promise of in Dubio Pro Reo?
(Strathmore University, 2019) Kitur, Roy
" ... the crime of genocide is singled out for special condemnation and opprobrium. The crime is horrific in its scope; its perpetrators identify entire human groups for extinction. Those who devise and implement genocide seek to deprive humanity of the manifold richness its nationalities, races, ethnicities and religions provide. This is a crime against all of humankind, its harm being felt not only by the group targeted for destruction, but by all of humanity ... "2 The year 1948 brought with it the Convention on the Prevention on Punishment of the crime of Genocide (hereinafter the Convention), the first form of codification of law with regards to the crime of genocide.3 Subsequent statutes like the Rome Statute4, the ICTR statute5 and the ICTY statute 6 borrow the language put down in the Convention verbatim. Naturally, one would conclude that the considerations and conclusions of the drafters of the Genocide Convention were indeed the most universally accepted such that subsequent drafters adopted their language almost entirely.7

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