LLM Theses and Dissertations (2021)

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The Promise and reality: winning ways for retail companies in Kenya through corporate governance
(Strathmore University, 2021) Kitonga, Noel Mwende
Kenya’s retail sector stands at the second-largest in Africa with 30 per cent formal retail penetration following South Africa’s 60 per cent. As at 2013, the retail sector growth rate was at 8.4 per cent, the highest growth rate ever recorded in Kenya. However, the high growth rate was short-lived as from 2013 to 2017 there was a consistent decrease. Notably, there is a slight increase over the years since 2017, with a 3.9 per cent growth rate recorded in 2019. The retail sector is the 5th largest contributor to Kenya’s gross domestic product with a contribution of about 5.7 per cent as at 2017. With the strong growth rate and major contribution to the GDP, there is no doubt as to why the retail sector is a major area of focus for the Kenya’s Vision 2030 strategy. Unfortunately, a dark cloud of company collapses threatens the retail sector. In corporate governance lies the key to keep corporate failure at bay. This is the promise companies in Kenya have been offered by the extant regulatory framework. However, the reality is a wave of retail company collapses has plagued the Kenyan retail sector. By conceptualizing, problematizing and theorizing retail companies’ practices, the study was able to answer the research questions whether the legal and regulatory compliance framework on corporate governance for retail companies in Kenya is adequate, what is the government’s role in corporate governance and does it influence the collapse of retail companies, what ties bind retail company collapses to regulatory compliance issues as a challenge facing the implementation and practice of corporate governance as drawn from the case studies, and whether there is need for review on corporate governance regulatory compliance by retail companies in Kenya. The study was able to establish that the massive retail company collapses were due to mismanagement exacerbated by the regulatory compliance conundrum facing retail companies. Looking into Uchumi supermarket Plc, Ebrahim supermarket, Ukwala supermarket, Nakumatt Holdings Ltd and Tuskys supermarket there is need for retail companies to establish a proper governance structure as theorized by the stewardship and stakeholder theories, and adherence to the corporate governance principles. The findings of the study have informed the recommendations made herein that call for corporate governance regulatory compliance reforms.
The TAP-Plus Approach to good governance in the oil and gas sector: legal and institutional framework for implementation in Kenya
(Strathmore University, 2021) Ndunyu, Lumen Kazuri Wanjiku
In 2012, Kenya discovered a substantial amount of commercially viable oil and is well on the way to becoming an oil-exporting country. However, there are many perils linked to exploitation of natural resources, the most prominent being the resource curse. Many resource-rich countries find themselves grappling with corruption, bribery and rent-seeking which have made it difficult for the said countries to exhibit economic growth and development. Extensive research in this field has identified good governance as an important aspect in beating the resource curse. In an endeavor to establish how Kenya can mitigate the nullifying effects of resource abundance, this research examines the role of good governance in Kenya’s oil and gas sector. It focuses specifically on theories that support combining transparency, accountability and participation as key factors in promoting good governance. This is because growing evidence shows that adopting and implementing these concepts in isolation can lead to a lack of coordination, incoherence and fragmentation which ends up having a detrimental effect on the socio-economic development of the country. Given that Kenya currently lacks a coherent and integrated legal framework on transparency, accountability and participation in the oil and gas sector, this seems to be a ticking time bomb. The TAP-plus framework, as proposed in this research, provides a normative guideline derived from international law principles and instruments, on how resource-rich countries can achieve coordination, coherence and systemic integration of anti-corruption efforts in order to avoid the resource curse. Through a thorough desk review of existing literature, this study examines how Kenya can effectively implement the TAP-plus framework in oil and gas governance to achieve greater coherence in anti-corruption efforts. The resulting conclusion is that by adopting and implementing the TAP-plus framework, Kenya will stand a better chance of escaping the resource curse. This research and its findings will be of great assistance to stakeholders in the oil and gas sector especially when it comes to creation and implementation of laws on good governance in the sector.
Women’s economic empowerment in the upstream petroleum sector - assessment of the right to access equal economic opportunities in Kenya
(Strathmore University, 2021) Arrumm, Christina Achieng
Focus has only recently shifted to upstream petroleum operations in Kenya following the discovery of commercially viable reserves of oil in Turkana County. Like in many other industries, the local communities in and around resource rich areas have a glimmer of hope that their lives will improve with some of these communities being marginalized and languishing in poverty. They anticipate the realization of socio-economic rights including their right to gainful work and employment. Women are no exception to the rule. They too seek to access the available economic opportunities within the sector. Owing to biological differences and traditionally ascribed roles, women have borne the brunt of gender inequality in the economic sphere with their right to employment and access to gainful work being greatly hampered. There has been a persistent cry for gender equality in the realization of rights with non-discrimination clauses being included in laws and policies. Using the socio-legal methodology, this research demonstrates the gendered impact of the oil and gas sector on local women’s right to access equal economic opportunities and the existing barriers to women’s economic empowerment owing to gender relations. In accordance with the United Nations ‘Protect, Respect and Remedy’ Framework, an in-depth analysis of the laws and sector specific policies governing upstream oil and gas operations in Kenya was also undertaken to establish the extent to which the State protects and business enterprises respect, women’s economic rights as well as highlight the existing gaps. This study argues that a gendered approach must be adopted in law and policy for economic empowerment of women in oil and gas to be realized. It concludes with recommendations to the Government, oil corporations and their relations on affirmative action measures that can be incorporated in law and policy to advance women’s economic empowerment.
Fintech lending in Kenya - an analysis of the gaps in consumer protection regulation
(Strathmore University, 2021) Ndwiga, Daisy Karimi
Traditional banks are sufficiently regulated compared to fintech. This is both an advantage to fintech as it allows for financial inclusion but it is also a disadvantage as consumers are exposed to risks. However, if fintech lending is overregulated, it will cease to have its current advantages such as financial inclusion over banks. The overarching issue, in this case, is how far the law and regulation should go in bridging the gap. To this end, this study explores whether consumer protection in fintech lending is predicated on incorporating efficient regulations to seal the potential and existing gaps. In assessing the viable and feasibility of regulations, this thesis relies on the lessons from other jurisdictions such as South Africa and the UK that have enriched strategies capable of being adopted in regulating fintech lending in Kenya.
Exploring financial inclusion in Kenya through cryptocurrencies: a case for a regulatory framework
(Strathmore University, 2021) Nyikuli, Elisha Odeyo
The use and reliance on cryptocurrencies have gained significant popularity around the world and developing countries such as Kenya have not been left out of this trend. In Kenya, which is the focus of this dissertation, the Central Bank of Kenya has gone as far as to warn the Kenyan population about the use of cryptocurrencies, without at the same time declaring them illegal in Kenya. This dissertation demonstrates that relevant Acts of Parliament; namely, the Central Bank Act, the Central Depositories Act, the Income Tax Act, the Insolvency Act and the Proceeds of Crime and Anti Money Laundering Act do not form a regulatory framework that is fit for the regulation of cryptocurrencies. Further, Kenyan courts of law have also not provided a way forward on this matter. It is against this backdrop that this dissertation hypothesises that for any comprehensive homegrown regulatory framework on cryptocurrencies to promote financial inclusion in Kenya, it should appreciate the areas in which Kenyans are most likely to interact with money. With admitted selectivity, it isolates currency (money), taxation, contracts and succession as some of the most important of such areas. To carve a way forward for a robust framework on cryptocurrencies in Kenya, the dissertation demonstrates that there are important lessons to be learnt from United States of America and Japan.
Legal protections accorded to minority shareholders in Kenya in corporate entities
(Strathmore University, 2021) Alfayo, Ongeri Wycliffe
The House of Lords had good intentions when it decreed in 1897 that a company had in law a fictitious separate personality distinct from its subscribers and promoters. With this decree the court in effect established an iron curtain in the name of a corporate veil between the company and the people in the backstage_ the real minds behind the company. Ever since there have been a myriad of instances when the iron curtain has been lifted to hold responsible those that have attempted to benefit fraudulently from behind the shield that is the separate legal personality of the company and its corporate veil. The study gives a historical background on the legal framework that existed prior to the enactment of the Companies Act No. 17 of 2015. The study considers the high threshold required of minority shareholders whenever they seek a remedy for infringement of their interests. Arising from that background the study considers the extent to which the principles of separate legal personality and corporate veil hamper the utilization of the legal avenues for the protection of the interests of minority shareholders. The study considers the fiction and contract Arian theories of corporate governance. It considers the proposition of their proponents and the criticisms advanced against them. In the end, the study considers the justification for departure from the theories in order to make a case for corporate law to be invoked to protect the interests of minority shareholders. The study analyses the provisions of the Companies Act, Capital Markets Act and subsidiary regulations that enshrine avenues meant to protect the interests of minority shareholders. The study points out the lacunas that are still persistent. In the penultimate the study analyzes a case study in order to contextualize the hindrances of the principles of separate legal personality and corporate veil in the pursuit for the protection of the interests of minority shareholders. Ultimately, the study makes recommendations that are meant to improve the corporate environment in which the minority shareholders can invest their resources.
Critical assessment of public participation in Environmental Impact Assessment process in the upstream petroleum sector in Kenya
(Strathmore University, 2021) Nyanchama, Sandra Sophy
Public participation is at the centre of Environmental Impact Assessments (EIA) around the globe and is considered critical in environmental decision making. EIA in oil and gas projects are key indicators of whether a proposed project has positive or negative effects. Oil and gas projects have far-reaching environmental harm which may affect the local communities around the project area, the environment and property. Therefore, effective public participation is very important because it acts as a preventive measure in ensuring the safety of the environment at all stages of the project. The EIA process in Kenya involves various process, public participation is the cornerstone and involves comments by lead agencies which play an advisory role and submission of comments and public hearing. In oil and gas projects, public participation involves an open, accountable and structured process involving mostly local communities and allied stakeholders through interactions, exchange of views and in certain cases some influence in government decision on granting licenses to a project for exploration. Public participation is not without challenges as there has been no defined structure of how the government has put in place capacity building initiatives on the citizens to enable them to engage effectively with this process and ensuring that the process is well informed, structured and meaningful to the target audience. This research study attempts to propose that a citizen centered approach to public participation should be adapted because of its focus on public knowledge rather than a mechanical process of ticking boxes for compliance. The citizen centered approach is how citizens exercise influence and control over the decisions that affect them. This research study proposes to critically analyse the role of public participation in an EIA process in Kenya with a specific focus on the upstream oil and gas sector. This research seeks to identify the current legislative and institutional framework of public participation in an EIA process in Kenya, seeks to understand the nature, scope and content of public participation and identify any gaps in the process and finally conduct a comparative analysis with other countries to establish best practice and lessons that Kenya can learn. This research study concludes that a citizen-centered approach is the most effective public participation approach to efficient EIAs in Kenya.
A Review of Kenya’s Public Private Partnerships legal framework for implementing infrastructure projects by county governments
(Strathmore University, 2021) Kaburu, Mildred Gakii
A Public Private Partnership (PPP) allows a public authority to benefit from the participation of the private sector in managing and financing public service expansion by outsourcing risk and by harnessing the innovative capacity and capital of the private sector. Consequently, the public agency can focus on policymaking, planning, and regulation. Thus, the PPP model can hasten delivery to curb Africa’s current dreary state of infrastructure. Therefore, this study examines the legal, institutional and procedural framework for carrying out PPPs at the county level in Kenya. The aim is to find out whether the current legislative framework is one of the key causes for the low uptake of PPPs at county level despite the apparent benefits of PPPs as a means for sourcing funds for infrastructure development. This study compares the legal framework for carrying out PPPs by South Africa and Nigeria which are the two African countries that have achieved great success in their local PPP projects and are the market leaders in infrastructure development in Africa. The study’s key finding is that the Kenyan PPP laws should be customized to suit County Governments because they are constitutionally mandated to provide critical services through infrastructure development. The study recommends the implementation of some of the lessons learnt from the two countries such as to customize the legal, institutional and procedural framework and for PPP arrangements by county governments in Kenya and to have the national government have a supportive role rather than a supervisory role in county government PPP projects.
Preventing bank failure: an assessment of the risk regulatory framework for banks in Kenya
(Strathmore University, 2021) Mwangi, Gladys Wahura
Inherently, inefficient banks should be allowed to fail. However, all banks are susceptible to failure, but not all are inefficient. The failure of a bank, whether it is considered to be efficient or inefficient, may impact the stability of other banks. Thus, it is not the failure of a bank, but the impact of its failure that may be catastrophic. Such vulnerability to failure, which may considerably affect efficient banks, has promoted the concept of safe and sound banking systems in laws, regulations, and best practice principles on a national and international level. This paper discusses bank failure with a bias to Kenya. The objectives that it seeks to meet include establishing to what extent Kenya has adopted international best practice standards in the regulation of banks, analysing measures to mitigate the risk of systemic failure in Kenya’s banking industry and determining if and how Kenya’s bank regulatory framework can be improved to foster bank stability and reduce bank failures. To put it into context, the paper reflects of the history of bank failures in Kenya and briefly highlights the most recent failures of Dubai Bank, Chase Bank Limited, and Imperial Bank Limited, all of which descended into receivership from the year 2015, and some which have since been liquidated. It establishes that in all the banks, there was a violation of market conduct and some prudential requirements that banks are mandated to adhere to by legislation and the Central Bank of Kenya. Further, that Kenyan legislation and adoption of international best practice is sufficient basis for banks generally to manage their risk profiles, and for the Central Bank of Kenya to apply the necessary supervisory interventions. However, there is an opportunity to implement and enhance existing legislative provisions. The paper concludes by putting forth various recommendations towards these, all aimed at preventing bank failure.
Sub-national Public Private Partnerships in Kenya: an appraisal of the legal and institutional framework against the constitutional principles on devolution and public procurement
(Strathmore University, 2021) Rono, Naphtaly Kipchirchir
The study appraises the legal and institutional framework for sub-national PPPs in Kenya with a view to assessing their conformity with the constitutional principles on devolution and public procurement, and by extension, their impact on the adoption of sub-national PPPs by county governments in Kenya. The conformity with the identified constitutional principles and efficacy of the legal and institutional framework is assessed through the lenses of Economic Analysis of Law Theory as well as the Soufflé Theory. The study evaluates the legal and institutional framework for sub-national PPPs in Kenya and identifies the gaps and deficits therein. It also evaluates the legal and institutional framework for Sub-national PPPs in comparative jurisdiction. The above-mentioned legal appraisal, survey and comparative analyses largely confirm the hypotheses of the study, which are, that the procurement regime and institutional framework established under the PPPs Act is not in conformity with the constitutional principles on devolution, and to some extent, with some of the constitutional principles on public procurement; that the existing legal and institutional framework is not efficacious and is partly to blame for the low adoption of sub-national PPPs in Kenya. Arising from the findings, the study recommends appropriate reforms of the legal and institutional framework for sub-national PPPs in Kenya. It also recommends for enhancement of capacity and credibility of county governments to undertake PPPs. Finally, the recommends for further research on areas not covered by the present study.
Occupational health and safety framework in the upstream oil and gas sector: a case study of Rwanda
(Strathmore University, 2021) Mukanjishi, Specioza
Rwanda’s upstream oil and gas sector has realized the benefit for exploring its natural resource having recently discovered commercially viable quantities of oil and gas. Rwanda is still at its nascent stages of oil and gas operations. There is however, the need for the sector to legislate the inescapable ‘occupational health and safety’ concerns exposed to workers. The study explored the legal and institutional framework that mirrors the sector aspects of occupational health and safety. The inadequacy of occupational health and safety provisions under Rwanda’s Petroleum Act to establish whether the requirements meet international best practices remains problematic. This study was guided by two research questions. The first (1) research question determined whether upstream laws of Rwanda have catered for occupational health and safety concerns within the sector. The second (2) research question determined whether occupational health and safety requirements in the upstream sectors should be enforceable in Rwanda, and if the said meets international best practice standards. As a yardstick, the study underscored the presence of occupational health and safety framework within other jurisdictions. These include Norway, Angola and UK for Rwanda’s sector placement as a proposed methodology. This study was conducted through analysis of primary and secondary data such as statutes, Text books, scholarly Articles, Journals, and Reports. This study hopes to inform the Government of Rwanda(GOR), and policy makers within the upstream sector on how best to implement the occupational health and safety framework through making reforms so as to incorporate the concerns within the sector.
Regulation of Fintech: analysis of data protection provisions aimed at protecting consumers in Kenya
(Strathmore University, 2021) Nyawara, Delbert Ochola
There is no single universal definition of financial technology (Fintech). Fintech can be defined as the delivery of monetary solutions using technology or even the integration and use of technology within finance. The use of Fintech has resulted in a shift in the mode of operation of most financial markets leading to increased opportunities and access to financial services. All the benefits of Fintech aside, Fintech has presented a huge challenge for regulators as there has been lack of clarity in regulation of Fintech leading to various risks being occasioned upon consumers. Additionally, most Fintech solutions do not integrate into the existing regulatory framework leading to more exposure of risk to its consumers, particularly posing risk in the protection of consumer data. In addition, there has been numerous attempts to generate certainty within the existing legal framework for regulation of Fintech. This has been argued to be stifling innovation. To this end, this thesis will assess the regulation of Fintech while protecting the interests of the consumer, particularly on data protection and fostering innovation by analyzing the prevailing regulatory framework in Kenya and across the region while drawing lessons from the United Kingdom on the need for the supervisory authorities to have appropriate mechanisms including investigative and corrective powers.
Combating insider trading in securities markets: a review of Kenya’s legal framework
(Strathmore University, 2021) Makanga, Silvia Muhongo
The idea of a fair market is dependent on all parties to a transaction possessing similar information when executing a transaction or trade. However, because of unfair market practices such as insider trading, this is rarely the case. Insider trading is a form of market abuse where one party deals in the securities of a public company while in possession of material non-public information. Often, a person practicing insider trading gains an advantage because of the information they possess over the other party. Today, insider trading is one of the most condemned corporate vices. As a result of its adverse effects on the market, insider trading has been prohibited by many countries in the world. In Kenya, insider trading is contemplated as an offence that attracts criminal sanctions under the Capital Markets Act 2013. However, as jurisprudence witnesses, it is difficult to sustain a conviction on a charge of insider trading in Kenya. As a result, the practice of insider trading often goes unpunished. The purpose of this paper is to examine the effectiveness of criminal sanctions in prohibiting the practice of insider trading in Kenya. The researcher also assessed the feasibility of employing alternative sanctions, that is, administrative and civil sanctions, in place of criminal sanctions in an effort to curb the practice of insider trading in Kenya. This paper argues that non-criminal sanctions are a more effective deterrent to insider trading than criminal sanctions. The study, therefore, suggests that the Capital Markets Authority should put emphasis on the use of noncriminal sanctions in the prohibition of insider trading rather than criminal sanctions.
Protection of depositors’ interests within the banking sector in Kenya – an analysis of directors’ duty to promote the success of the company and the suitability of the compensation fund when the bank fails
(Strathmore University, 2021) Omaya, Caroline Apiyo
Kenya witnessed systemic bank failures between the years 2015 and 2016. As a result, most depositors suffered financial losses given the fact that they could not have immediate access to their funds held in the bank accounts of the collapsed institutions. The failures have been partly attributed to failure by directors to efficiently carry out their duties. The primary legislation regulating companies in Kenya, the Companies Act, Act No 17 of 2015 (CA), stipulates that the general duties are owed by directors to the company. Directors’ therefore owe their duties to the owners of the company that is, the shareholders. There appears to be no primary duty owed to other stakeholders and for purposes of this study no direct duty of care is owed to the depositors. This has led to questions arising on the adequacy of protection of depositors’ interests as provided in our legislation in the event of systemic bank. In an attempt to answer this question, this study examined the existing banking and corporate legal and regulatory framework to determine whether and to what extent depositors’ interests are protected in the banking institutions in Kenya. Further, the study examined the applicable banking and corporate laws in the United Kingdom and the Republic of South Africa and has made recommendations on the best practices that can be borrowed and adopted within the Kenyan context. The study focused on the directors’ duty to promote the success of the company whilst fostering the company business relationships with its customers, with the aim of recommending the broadening of section 143 (1) (c) of the CA when applied to banks; to include depositors as customers of banks as one of the ways of ensuring depositor protection; additionally, the study focused on the adequacy of the compensation mechanisms to depositors, as provided by the Kenya Deposit Insurance Corporation. From the research findings, there is need for subsidiary legislation/guidelines to be introduced so as to help directors know how best they can balance the interest of shareholders (while promoting the success of the company) and the interests of depositors (as directors try to foster the company relationships with the customers). Further as depositors’ interests are protected (given the special relationship they have with banks) there is need to have sufficient and timely compensation mechanisms to cater for their interests should a systemic bank failure occur.
Evaluating the case for a unified model of regulation in the financial services sector in Kenya
(Strathmore University, 2021) Ndichu, Lilian Wanjiku
The Financial services sector plays a crucial role in the economy of any country. To make sure that the financial sector is stable, it is prudent to regulate it. A sound regulatory framework is thus important to safeguard the smooth operation of the financial sector. In Kenya, the current regulatory framework has been marred by a multitude of challenges due to the dynamic changes that have been experienced in the sector such as technological innovations. This has resulted to regulatory gaps and overlaps which have led to regulatory arbitrage. To resolve some of these challenges, reforms in the regulatory framework have been proposed including the introduction of a unified model of regulation. A unified model of financial regulation is one where there is one single regulator for the whole financial services industry. The current regulatory framework in Kenya is set along sectoral lines such that there is a single regulator for every sector in the financial industry and this has been marred by multitude of problems including regulatory overlaps and gaps. In its search for the most optimal model of financial regulation in the financial services sector, Kenya has introduced reforms towards improving the current regulatory framework and to also ensure alignment to international practices. This paper analyses effectiveness of the current regulatory framework in the Kenyan financial market and the rationale for the proposed model of a unified regulator for the Kenyan financial services against the background of the general objectives of financial regulation and the different models of financial services regulation adopted in other jurisdictions to determine the most suitable model of regulation for the financial services sector in Kenya.
Consumer protection in Kenya in the age of decentralized virtual currency
(Strathmore University, 2021) Kibwage, Caroline Buyaki
Virtual currencies are an outcome of technological progression and the evolution of money both in form and function. The increased popularity of virtual currencies is by dint of digital confluence of markets from all over the world. The uptake and adoption of decentralized virtual currencies in Kenya continue to grow and there are significant risks associated with their uptake and adoption. This study makes the case for consumer protection regulation with respect to decentralized virtual currencies by employing a doctrinal approach. The study considers the regulatory provisions in Kenya, South Africa and Mexico and outline the risks posed to Kenyans by the regulatory gaps. The key findings are that the consumer protection regulatory framework in Kenya is insufficient with respect to decentralized virtual currencies. The legal ambiguities expose Kenyan decentralised virtual currencies users to further risks. Further, consideration of South African and Mexican regimes showed the varied approaches to consumer protection in decentralized virtual currencies: South African takes a limited approach while Mexico, though it does not recognize it as legal tender, allows transactions with approved decentralized virtual currencies therefore offering a layer of consumer protection. The main recommendation offered is the reviewing of existing consumer protection provisions and other secondary provisions in Kenya to encompass decentralised virtual currencies and ensuring extraterritorial cooperation to ensure judicial compatibility.
Critiquing immunities of serving Heads of State under Articles 27 and 98 of the Rome Statute of the International Criminal Court: a case study of President Omar al-Bashir warrant of arrest
(Strathmore University, 2021) Gitobu, Imanyara
Whether there is an obligation on states to honour requests issued by the International Criminal Court (ICC) to arrest serving or sitting Head of States has been a controversial area of concern given the apparent contradiction between Articles 27 and 98 of the Rome Statute establishing the International Criminal Court (ICC). The problem with which this thesis is concerned with is the internal tensions created by what appears to be contradictory language of the Statute and the differing interpretations which have tended to reduce the effectiveness of the Rome Statute in ensuring accountability and ending impunity. In particular: Do Articles 27 and 98 of the Rome Statute give immunity from arrest of serving Head of States as argued by the African Union in opposition to the issuance of warrant of arrest against President Omar Al-Bashir? To answer the question whether these two provisions of the Rome can be reconciled, the decision of the Pre-Trial Chamber on the Omar Al-Bashir case is examined in the context of scholarly writings, contemporary debates and examination of international cases. The principal argument is that Article 27’s removal of immunity must be interpreted in the context of the rationale forming the basis of the establishment of the International Criminal Court (ICC) by the Rome Statute. This way Article 98’s true intent must be understood. If the International Criminal Court (ICC) is to attain the preambular purpose of ending impunity at the international field then national authorities must be obligated to serve the International Criminal Court (ICC) and this can only be achieved by purposive interpretation of the Rome Statute. In this regard, the thesis examines the application of Article 98 of the Rome Statute in the context of United Nations’ Security Council referrals to the Court with the conclusion being made that the effect of the Security Council referral of the Sudan Case is to be regarded as binding by virtue of Article 27. The thesis concludes by making the case for the interpretation of the Statute in a way that ensures removal of immunities of persons before the International Criminal Court (ICC), notwithstanding status accorded to those individuals by any other statute or practice.
An Evaluation of Kenya’s profit petroleum fiscal regime under the Petroleum Act 2019 and the contractual implication of migrating from DROP to R-Factor
(Strathmore University, 2021) Ogutu, Castro Kevin
Abstract Countries with developing oil and gas sectors have in the past years centered on the volumes of crude oil produced as a basis of their profit petroleum share with International Oil Companies (IoC). However, there exist other profit petroleum sharing fiscal regimes which focus mainly on profitability arising from the production rather than the volumes produced in light of current global prices and cost recoverable allowed. As a result, Host Governments (HG) are in the process of relooking at their petroleum contracts with IoCs in light of this development. Kenya has not been left behind either and it has proceeded to change its petroleum laws to reflect this new development, which may trigger the need for renegotiating its Production Sharing Contracts (PSCs) with the International Oil Companies (IOCs) in accordance with the terms of the PSC. The current PSCs are based on a profit petroleum sharing mechanism known as Daily Rate of Production (DROP) where the government and IOC share profit petroleum based on volumes produced. Amongst the changes made in Kenya’s petroleum legal sector is the introduction of the R-factor fiscal regime to replace DROP as a basis of profit petroleum sharing between the IoC and the Government of Kenya. This research attempts to qualitatively evaluate the two profit petroleum fiscal regimes namely Daily Rate of Production and the R-factor mechanism with a focus on the contractual implication of the migration from DROP to R-factor mechanism. As a yardstick, the research analyzes the legal framework governing Mozambique’s profit petroleum fiscal regime in order to draw key lessons for implementation by Kenya. This study finds that Mozambique had changed its petroleum laws and successfully implemented the R-factor profit petroleum sharing in its concessions with IoC’s which in turn has increased the Government’s profit petroleum share. This study was conducted through analysis of primary and secondary data such statutes, journals, scholarly books and reports of various international organizations. The study aims at informing the Government of Kenya and other countries on the need to develop and implement sound petroleum sharing fiscal regimes for their countries so that they can maximize on the profitability of the oil and gas sector.
Kenya’s oil and gas industry local content framework: an analysis of Sections 50, 51 and 52 of the Petroleum Act 2019
(Strathmore University, 2021) Odhiambo, Mildredtinnah Adongo
Following the discovery of commercially viable oil in the North Western region of Turkana by Tullow Oil, Kenya realized that need to promote local content in its petroleum industry and as a result, the Petroleum Act 2019 was enacted into law. This study analyzes the local content framework under sections 50, 51 and 52 of the Petroleum Act 2019 to establish their efficiency and adequacy for the country’s petroleum industry. This study analyzes the various factors that challenge the successful implementation of local content within Kenya’s petroleum industry in comparison to the local content framework of both Nigeria and Brazil. The research evaluates the efficiency and adequacy of the local content provisions under the Petroleum Act with the aim of establishing whether the requirements meet international best practice legislative standards. This study compares Kenya’s local content framework to that of Nigeria and Brazil and examines that mechanism that have been put in place that to measure and monitor local content to draw lessons from which Kenya can learn and adopt within her petroleum industry in order to achieve success and positive local content outcomes within the petroleum industry. This study particularly analyses the legal and institutional local content frameworks that have promoted local content in both Brazil and Nigeria and compares them to that of Kenya to gauge the Petroleum Act 2019’s efficiency and adequacy for the country’s petroleum industry. This study finds that both Nigeria and Brazil’s local content frameworks are well structured and are specific to the needs of each of the countries and the result of this is that both countries have been able to achieve positive local content outcomes within their petroleum industries. The specificity in the local content policies and requirements has boosted local content within the petroleum industry and this study recommends that Kenya should draw lessons from the two countries in order to achieve positive local content outcomes.
Assessment of tax incentives for contractors in Kenya’s upstream oil and gas legislative framework
(Strathmore University, 2021) Ahmed, Mohamed Bulle
Tax and tax related incentives applicable in Kenya’s upstream oil and gas sector are defined in two main statutes: The Income Tax Act and the Petroleum Act, 2019. Since 2010, Kenya’s taxation regime has undergone numerous developments and of key relevance to this study is the introduction of a separate schedule to the Income Tax Act on taxation of the extractive industry in 2014. The Ninth Schedule separates the taxation treatment of mining and petroleum operations from other sectors of the economy. The incentives provided for under the Ninth Schedule to ITA can be placed into three categories namely: income tax deductions; custom duty exemptions; and value added tax exemptions. This thesis critically analyses the tax incentives available for international oil companies in the Kenyan law. It identifies the gaps and inconsistencies in the provisions for tax incentives under the Ninth Schedule to the Income Tax Act and the model Production Sharing Contract (PSC) under the Petroleum Act, 2019. The research methodology used is qualitative research design, utilizing primary and secondary sources of data. It involves review of the legal framework for taxation in the oil and gas sector. Literature materials reviewed included books, journal articles, theses, online sources; as well as statutes, rules and regulations governing taxation in the oil and gas sector. Literature materials analyzed apply to the Kenyan context as well as other jurisdictions such as Ghana and Nigeria. Kenyan literature especially touching on or analyzing the incentives under the fairly recent laws was found to be scanty as few authors have written about them. The findings of the research are that there are inconsistencies, overlaps and gaps in the Ninth Schedule to the Kenya Income Tax Act (KITA) and the model Production Sharing Contract (PSC) relating to tax and tax-related incentives in the upstream oil and gas sector. The inconsistencies, overlaps and lack of clarity in effect tend to blur the incentives intended to attract International Oil Companies (IOCs). Ghana and Nigeria have made commendable efforts to establish and impendent tax incentives for IOCs in their oil and gas sector, and few lessons can be drawn from them. The study makes appropriate recommendations on how Kenya can address the challenges identified.

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