Strathmore Law School (SLS)

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Strathmore University social and political philosophy senior students personal development projects 2009
(Strathmore University, 2009) Branya, John
INTRODUCTION This is a collection of Personal Development Projects reports done by some of the 66 evening class students of Principles of Ethics during the 2nd Semester of the year 2009. There are not necesarily the best, but they are significant. They show how «applied philosophy» could benefit all of us. A sound grounding of philosophical concepts improves our way of seeing ourselves, others and our environment. Because actions follows knowledge, proper knowledge of what we are and what we are meant to do, improves our actions, for our own and others benefit. The reports included in this sampler have been modified to preserve the privacy of the authors. Except for names and companies, the rest are «real life» situations, perceptions, actitudes and behaviours. The purpose of this sampler is to help each one of us to «budget our life» seeing how our colleagues do it. For those who want to try I have included the instructions given to the students for the project. The results of these projects are not the consequence of one subject, or one lecturer, but of the sum of efforts of the students themselves, many lecturers, mentors and other personnel who remain, as the authors, anonimous in the background, for example the project methodology was developed by Ms. C. Dean among others. edit this entry delete this entry
Stein’s ethic of care: an alternative perspective to reflections on women lawyering
(Routledge publishing, 2011) Gachenga, Elizabeth
The book features significant and timely contributions which take contemporary and non-mainstream perspectives on the current and future shape of the legal profession. The essays not only describe the rapidly changing profession but canvas different approaches to scholarship on the legal profession. The collection seeks to explore a diverse and contextualised profession from a number of angles. Authors examine how the public sees lawyers and how lawyers see their own profession; how we practise law and how this practice shapes lawyers; how such cultural and professional practice intersects with institutional structures of the law to create certain legal outcomes; and how we regulate the legal profession to modify or institute ethical practice. The volume provides insights into legal culture and ethics from the perspective of authors from Australia, Canada, England, the United States, New Zealand and Kenya – a diversity of national perspectives that give valuable insights into developments in the profession at the local and global level. It also illustrates diversity within the profession by tracing differing professional career trajectories based on raced or gendered barriers, alternative ethical strategies and the impact of organisational cultures in which lawyers practice.
Kenya's water act : opportunities for integration of customary institutions of water governance through water resources users associations and water service providers
(LawText, 2011) Gachenga, Elizabeth
The need to develop sustainable systems for water resource governance in an environment of increasing scarcity and climatic variability has led to the re-evaluation of institutional frameworks. There has been a growing appreciation of the need to coordinate institutions involved in order to achieve sustainable water resource governance. Law and regulatory frameworks for water governance in some countries face the challenge of integrating parallel institutional arrangements such as community-based or customary institutions with statutory institutions. The provision for water users associations (WUAs) in the water statutes of several developing countries is an example of the attempt to bring these parallel institutions into the statutory framework. By recognizing WUAs, the statutes provide pre-existing institutions with the opportunity, upon registration, to participate in water resource governance issues. It is argued that this makes them a potential tool for integrating pre-existing customary institutions into the statutory system and in some way providing an interface between statutory and customary law systems. In Kenya's Water Act, the concept of WUAs is embodied in Water Resources Users Associations (WRUAs) and to some extent in Water Service Providers (WSPs). This article analyses the extent to which WRUAs and WSPs are effective in integrating customary institutions into statutory frameworks using a case study of the customary water resource governance system of the Marakwet.
Thinking about Thinking (Theory of knowledge)
(Strathmore University Press, Nairobi, 2013) Branya, John
We are continuously thinking but we are not aware of the process unless we stop what we are doing and pause to think about our thinking. The same hap- pens with breathing. Once we are conscious of our breathing we can start experiment to know our powers: we can try to breathe faster, deeper, stop breathing for a while. We can then change impressions with our friends and even devote time to study the process of breathing as a scientist does. To think about thinking is to pause and try to go as deeper as we can into this tool that makes it possible we think about any other thing than thinking itself. While it is true that we can think very well without stopping to consider
Governing the commons through customary law systems of water governance
(CEESP and IUCN, 2014) Gachenga, Elizabeth
The resilience of customary law systems of natural resource governance in many parts of the world lends credence to Ostrom’s theory on the governance of commons. Ostrom argued that resource users who enjoy relative autonomy in the design of rules for governing and managing common-pool resources, frequently achieve better economic (as well as more equitable) outcomes than when experts do this for them.2 In support of this theory and acknowledging that most common pool resource governance regimes are based on a customary law system, Bosselman has sought to demonstrate a link between customary law systems and positive outcomes for sustainable development.3 Using a case study of the customary law system of water governance of the Marakwet community of Kenya, this paper tests and builds on the design principles and tools developed by Ostrom, to study normative institutions in a dynamic environment.4 The paper proposes an analytical framework that helps identify the features that strengthen customary institutions and ensure their adaptability and resource sustainability. This exercise illustrates the parallels between commons governance and customary law governance of natural resources.
ADR, access to justice and development in Kenya
(Kariuki Muigua and Company, 2014-05) Kariuki, Muigua; Kariuki, Francis
Development is not feasible in a conflict situation. Conflicts and disputes must be managed effectively and expeditiously for development to take place. Formal mechanisms for conflict management have not always been effective in managing conflicts. Mechanisms such as courts have been inaccessible by the poor owing to technicalities, complex procedures, high costs and delays. There has been a shift towards informal mechanisms for conflict management, including alternative dispute resolution (ADR) and traditional dispute resolution mechanisms (TDRM). ADR and TDRM processes contribute to enhanced access to justice by all, and in particular among the poor people. Enhanced access to justice strengthens the Rule of Law. Existing literature in development studies has shown a correlation between the Rule of Law and levels of development. ADR and TDRMs are thus quintessential from a developmental perspective. The Kenyan legal framework has recognized the role of ADR and TDRM in development. Existing laws require the use of ADR and TDRM in resolving a myriad of disputes such as those relating to land, family matters, commercial and political questions. In this paper the authors argue that the recognition of ADR and TDRMs within the legal framework in Kenya, will contribute towards economic, social, cultural and political development. This recognition expands the array of mechanisms that parties to a dispute can employ in ventilating their disputes. Enhanced access to justice will also contribute to respect for the rule of law, which is an essential precondition to development. ADR is also becoming a lucrative economic venture with many professionals now working as full-time or part-time ADR practitioners. In addition, a number of organisations have established ADR centres. Some of these centres are expected to be major attractions for foreign investments in the country as they will handle international arbitrations. ADR is also being taught in schools and in universities, and is thus expected to contribute to social development.
Legal and policy frameworks for climate-friendly energy generation in Africa : energy security for future development
(Macmillan Education Namibia, 2015) Gachenga, Elizabeth; Paul Martin; Sadeq Z. Bigdeli; Trevor Daya-Winterbottom; Willemien du Plessis; Amanda Kennedy
Energy security is one of the most important future challenges for the international agenda of security, peace, and stability worldwide. Increasing energy supply needs and the aim of achieving greater energy independence are playing a mounting role in politics, not only in the United States, Europe, Russia, China and India, but also in Africa as the continent with the highest potential for energy resources for the future. The quest for control and commercialisation of energy resources is also a reality in sub-Saharan Africa. Nigeria and Angola are the biggest oil-exporting countries after the countries of the Middle East. Namibia is one of the biggest uranium-exploiting countries, while Tanzania may in future become one of the most important gas-exporting African countries to world markets. The United Nations forecasts that the African population will be around 2 billion people in 2050, and therefore the expanding demand for energy will be one of the challenges with which Africa is faced, along with poverty reduction, food security, water security and combating the impacts of climate change. But Africa’s challenges are also world challenges, because energy security is a global priority, with global markets, interests and needs. More than ever, a reliable discussion about the importance of coordinating secure energy supplies worldwide, and especially the impact on Africa, is essential for the future of this continent, as part of the international energy security structure. The African Union represents a continent which is faced with different aims, security interests and needs, if one compares the destabilising developments over the past 10 years in the north, south, east and west of Africa. Which path will Africa take in respect of rapidly growing energy demands on the continent – the European or the Asian path?
Anthropology for Rebels (A different way of doing philosophical anthropology)
(Strathmore University Press, Nairobi, 2015) Branya, John
Anthropology for Rebels is a highly recommended book for those interested in discovering what our person is and how it has been understood over the centuries. The title reflects the underlining attitude of the author, of not accepting any approach that reduces the human person to something inferior to its total splendor. This attitude contrasts with the common points of view one may find in pseudo–scientific and popular articles that try to reduce the human excellence to the method used to study rocks, plants, animals or numbers. The method to study the person should be above the normal use of the abstractive intelligence, or the intelligence limited to reason. There is a higher level of knowledge to the discursive knowledge, which some authors call intuitive knowledge and that Professor Sellés calls habitual knowledge. The book gives also profound insights on human affections, education, ethics and politics as part and parcel of the world created by the person. Another added advantage of this book is to be a good introduction to the Philosophical Anthropology initiated by the Spanish Philosopher Leonardo Polo and the understanding of the four personal transcendental, which give a deeper vision of the social nature of man, its radical freedom, a new view of the acting intelligence of Aristotle and a profound view of personal love.
Gender dimensions of customary water resource governance : Marakwet case study
(Weaver Press, 2015) Gachenga, Elizabeth
This book approaches water and sanitation as an African gender and human rights issue. Empirical case studies from Kenya, Malawi, South Africa and Zimbabwe show how coexisting international, national and local regulations of water and sanitation respond to the ways in which different groups of rural and urban women gain access to water for personal, domestic and livelihood purposes. The authors, who are lawyers, sociologists, political scientists and anthropologists, explore how women cope in contexts where they lack secure rights, and participation in water governance institutions, formal and informal. The research shows how women – as producers of family food – rely on water from multiple sources that are governed by community based norms and institutions which recognize the right to water for livelihood. How these ‘common pool water resources’ – due to protection gaps in both international and national law – are threatened by large-scale development and commercialization initiatives, facilitated through national permit systems, is a key concern. The studies demonstrate that existing water governance structures lack mechanisms which make them accountable to poor and vulnerable waters users on the ground, most importantly women. Our findings thus underscore the need to intensify measures to hold states accountable, not just in water services provision, but in assuring the basic human right to clean drinking water and sanitation; and also to protect water for livelihoods.
Customary law systems for water governance in Kenya
(Edward Elgar Publishing, 2015-07-31) Gachenga, Elizabeth
In many jurisdictions including Kenya, the term ‘law’ is generally assumed to refer to enacted rules emanating from the state. Consequently, legal systems for water resource governance are considered largely as consisting of statutory law – rules enacted by state organs. Nonetheless, in many countries aspects of water resource management, particularly at the local level, include systems of rules that are beyond the scope of statutory frameworks, with local users developing informal norms and institutions to govern their water resources. This chapter uses the term ‘customary law’ to refer to these informal/ non-statutory normative and institutional frameworks. Customary law systems for natural resource governance continue to exist in many countries. The resilience of customary water governance regimes has led water law practitioners and researchers in the last two decades to acknowledge that these regimes constitute a factor to be reckoned with when preparing ‘modern’ legislation for water resource governance. Research has demonstrated that in some cases, their resilience is the result of an inherent adaptive capacity that makes customary law systems more sustainable than state developed systems. Further, as these customary governance forms are self-developed, they represent a more democratic process of development of law and thus are more likely to be successful at achieving sustainability.
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.

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