LLB Research Projects (2017)

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Access to employment for persons with disabilities: the case of Kenya.
(Strathmore University, 2017) Njoroge, Esther Nyaguthii
This study sought to investigate access to employment by PWDs in Kenya, the law surrounding the issue of disability, the factors impeding the application of these set out laws and to come up with recommendations on the ways in which the state of persons with disabilities (PWDs) can be improved within the employment sector.The study was done through assessing the adequacy of the current legal framework in curbing discrimination faced by PWDs in accessing employment. It established that the laws in place create a sound legislative framework, that at its current state should, to a larger extent, protect the right of PWDs to accessing employment save for various loopholes in the law. Through brief case studies of good anti-discrimination practices and laws, the study was able to bring out the prominent features of practices that allow PWDs to effectively access employment. Reasonable accommodation of PWDs was seen as a major factor that would contribute to allowing PWDs to confidently access employment.In order for PWDs to access and secure employment in Kenya, the study recommends that the barriers hindering the application of the laws concerning disability be dealt with. It also proposed that the government should take initiatives to obligate employers to make reasonable accommodation. In the end, the study makes the findings that the laws pertaining to PWDs are sound, save for some loopholes, but a more pragmatic way of approaching the subject should be considered. Through case studies of other legal frameworks that are purportedly better in other jurisdictions, the study was able to bring out the prominent features that are necessary for a sound system of laws that would sufficiently ensure PWDs the right to employment without hindrances. The study then recommends various changes aimed at curbing this discrimination.
Socio-legal justifications for youth suffrage in South Sudan
(Strathmore University, 2017) Tetteng, Thaloka Gaduel
This paper is about Youth Suffrage and discusses minimum voting age in South Sudan. It questions the validity and appropriateness of the prevailing minimum voting age of 18 and proposes a minimum voting age framework of 16 years in line with socio-legal justifications in the country. The paper presented in six chapters which outlay specific contents. Chapter One is the introduction and formulate the research hypothesis, the research questions, research method, theoretical underpinnings, and contextual background of the research the encompasses a brief history of South Sudan in the context and background analysis of the problem that necessitate the research. Chapter Two reviews the literature that discuses Universal Suffrage and Youth Suffrage. It also reviews the experiences of countries that have had minimum voting age lowered including lessons learnt from those countries. The Chapter also looks into the intellectual arguments presented on the questions of maturity and democratic prudence more in more depth. Chapter three and Four analyse perceptions and international standards respectively on the ages of participations. Chapter Five attempts a framework for minimum voting age in South Sudan. In conclusion, this paper is a report of an original research on a question
Community land tenure and exploration of oil in Turkana, Kenya.
(Strathmore University, 2017) Asati, Bathsheba Mong’ina
Land tenure, which is who owns what interest over what land, has always been a contentious issue, this is because of the finite nature of land. Land in Kenya has been a sensitive issue due to the historical land injustices which date back to colonial times. Discovery of oil in Kenya in 2012, which led to oil exploration activities mainly in the Turkana region, has led to the emergence of new issues concerning land rights in the area. Kenya lacks proper legislation to secure community land rights as exploration of oil continues in Turkana. This has led to alienation from land for some communities and also increased competition for the limited natural resources such as water. This paper shall look into the history of land law in Kenya and the current legislative framework governing the use, ownership and management of community land to identify the gaps in the law. The paper shall also look into best practices from the Inter- American Human Rights System. Canada, and South Africa to identify best practices that can be incorporated in Kenya’s legislative framework.
Effectiveness of the Ethics and Anti - Corruption Commision in combating corruption within the executive in Kenya
(Strathmore University, 2017) Abass, Hamida Ahmed
One of the impediments that hinder Kenya’s economic growth is corruption. It has crept into the various arms of the governments and its respective institutions and as a result has stifled Kenya’s economic growth. Corruption has invariably costed Kenya a lot from being blacklisted by the International Monetary Fund, the World Anti-Doping Agency and being poorly ranked in the Corruption Index Reports. This study explains the very core of the cognitive dissonance in Kenya’s fight against corruption. In as much as this endemic has affected various arms of government, this study particularly focuses on the corrupt practices within the Executive. This study will commence by giving the historical discourse of corruption in Kenya citing the most notorious scandals associated with the Executive. It will then address the various regimes that have been in power in Kenya since 1963, when Kenya gained independence, to date and bring to light the scandals associated with each regime. Thereafter, it will conclude by giving the findings gathered from it and draw out recommendations for the fight against corruption. Its recommendations will revolve around the best practices from the countries used for the comparative analysis.
Corporate governance for state corporations: a case for the twotier board structure
(Strathmore University, 2017) Waweru, Cynthia Njeri
State corporations are essential as they are mandated to provide public goods and services and cater to the general welfare of members of the public. State corporations in Kenya have served different purposes in different industries since their establishment during the colonial period. However, they have been plagued by a number of issues over the years, chief among them, mismanagement. Other issues that have arisen as a result of mismanagement include pilferage, wastage and bureaucracy. This has greatly undermined the achievement of their objectives. This paper seeks to investigate the suitability of applying the two-tier board structure to correct this corporate governance failure. The paper is anchored by the concept of governance and its important role in the management of a corporation. Corporate governance guidelines, frameworks and mechanisms are implemented to ensure that the management team of a corporation act and administer their duties in the interest of all stakeholders. With this in mind, the paper shall look into the state of state corporations in Kenya and the laws that govern their administration. It shall particularly look into the one-tier board structure, the rationale behind its use, its benefits and the shortcomings and how these shortcomings have undermined the activities of state corporations. The paper shall discuss the applicability of the two-tier board structure as a remedy to the corporate governance failures that plague state corporations. In order to do so, it shall delve into the application of the two-tier board structure in two jurisdictions; namely Germany and the Netherlands whose economic success can be partly attributed to the nature of their corporation laws. Finally, the paper shall give recommendations that can be tailored to meet the needs of Kenyan state corporations.
Plant variety protection: a path to agricultural development in Kenya
(Strathmore University, 2017) Chege, Curtis Gachiri
Proprietary rights date back to Stone Age in Kenya. Individuals, families, clans and communities have always held a profound, almost divine, attachment to property such as land, cattle, and wives among other things. Communities and societies upheld laws and culture that respected a man’s right to his property. However intellectual property is a fairly recent import. The exclusion of others from the expression of an idea or work was introduced globally to protect innovators and inventors from exploitation. The protection of varieties of plants is particular foreign. Ancient communities subsisted on agriculture and communal labour. Therefore no single individual could be credited with the invention of a plant variety. The growth and exposure to new technologies from industrialized states has influenced the social and legal framework of Kenyan society and created a new market for innovation and exclusionary rights. This study seeks to address the scope of PVP mechanisms in the Kenyan context. It will seek to clarify the barriers inhibiting this application and how they can be overcome. The study is conducted through literature review of plant variety protection systems and the global obligations Kenya has as a member of several universal agreements.
Demystifying the concept of peremptory norms: the nature and scope of jus cogens
(Strathmore University, 2017) Oyugi, Craig Douglas
Humanity must be governed by a set of ideals. Ideals that stretch beyond what can be seen, a law that exists outside the realm of time and legislation, a law that invalidates what does not coincide with it. This law is jus cogens. As a concept, it enshrines the very essence of what makes mankind humane, it is shrouded in the notion of human dignity. However, as humanity develops, so do the contents of jus cogens? This study seeks to answer this question, firstly by ascertaining the correct formulation of what jus cogens actually is. This naturally leads to the question of how jus cogens comes about, in other words, what are the theoretical underpinnings. I posit that jus cogens arises out of a fiduciary relationship between the state and its citizens, and will always permeate to cater for the needs of its citizenry because of the same fiduciary relationship. As a result, it is this fiduciary relationship that is the foundation in determining the future of jus cogens and its scope. In order to bring clarity to the concept of jus cogens, the study recommends that a formula should be enshrined in treaty law for making such a determination, on what can and can’t be considered jus cogens. Secondly a code, law or statute enshrining all the jus cogen violations and bringing to life the legal principle of legality.... namely that the law should be “certain.” Lastly a mode of enforcement of sanctions that is able to circumvent the obstacles that international politics presents to the fair and universal application of jus cogen violations.
Effect of wide judicial discretion on the legality of sentencing at the Icty
(Strathmore University, 2017) Kinyanjui, Ivy Nyambura
This dissertation looks into the jurisprudence of the International Criminal Tribunal for the former Yugoslavia and identifies that the judges enjoyed unfettered judicial discretion in sentencing due to the minimal provisions on sentencing within the Statute and Rules of Evidence and Procedure. This wide judicial discretion has led to inconsistency in the determination of gravity of crimes, aggravating and mitigating circumstances and reference to the general practice of the former Yugoslavia. The study then uses Hart’s theory of judicial discretion within the larger context of positivism, in order to determine that the inconsistent jurisprudence of the tribunal has violated the principle of legality. The hypotheses was that there was inconsistent sentencing in the ICTY. The dissertation looked into the sentencing practice of the International Criminal Court as the future of international criminal justice and determines that there are possible challenges to sentencing there and offers recommendations. One of the recommendations is to have the Assembly of State Parties pass a document with sentencing ranges or a more detailed sentencing policies in order to make the sentencing more consistent.
Capital market integration in East Africa: inadequacy of East African Council of Ministers directives on capital market integration
(Strathmore University, 2017) Rono, Brian Kipkorir
The East African Community (EAC), formed through an agreement between Uganda, Tanzania, Kenya, Rwanda and Burundi has provided the impetus for the integration of affairs in the region. The integration especially of capital markets in the region is expected to bring the following benefits to the people of the region; risk sharing and diversification, better allocation of capital among investment opportunities and financial development. This form of integration anticipated by the treaty establishing the East African Community is to be realized through the formation of a Custom Union, a Common Market, a Monetary Union and ultimately a Political Federation. This academic work shall explore regional integration in the region from the context of capital markets. The body with the responsibility of setting up the legal framework for the integration of capital markets through the enactment of directives is the East African Council of Ministers. The paper shall argue that in as much has the council has enacted a number of directives there are some key areas that have not been legislated on which is hindering the process of integration. It shall conclude by providing recommendations on the directives that should be enacted to smoothen the integration process
Embryo personhood and how it affects disposal procedures in IN vitro fertilization
(Strathmore University, 2017) Nyakundi Tony Areri
Assisted reproduction technologies are fairly new to Kenya and therefore have not been subjected to the necessary legal scrutiny. This is especially true of in vitro fertilization which describes the process where the female egg is fertilized in a laboratory after being retrieved from the lady and the now fertilized egg is guided into the uterus of either the biological mother or a surrogate who carries it to term. This study aims to bridge the gap in academic and particularly legal commentary on the issue especially as regards the disposition of embryos. The issue of disposal of embryos raises the basic question of how the legal system sees the embryo. The Kenyan Constitution views the embryo as persons and this study analyses the effect of this personhood approach. Any legislation that pertains to in vitro fertilization will therefore have to consider this key issue when considering matters such as disposal, storage and conveyance. However, as the study will demonstrate, this should not translate to excessive measures such as absolute bans since the practice is part of the greater framework on reproductive freedom. The study investigates various jurisdictions to ascertain their approach to in vitro fertilization and finds that it is possible to preserve reproductive rights while remaining true to the Constitution. To achieve this, the study recommends careful legislative drafting and balanced interpretation of rights as has been the case in various jurisdictions the world over. Fidelity to the Constitution is never a reason for unnecessary restrictions on basic rights and this is true in this case as well. It is the recommendation of this study that Parliament should pass laws to adequately legitimize the practice of in vitro fertilization in the country and provide ethical and medical standards on the same. The reproductive rights and freedoms of couples should also be respected in drafting of the same. The study also recommends that more research should be done on the practice in Kenya in order to provide better informed legislative, judicial and executive decision making. Finally, this study has adopted a qualitative approach based on journal articles, case law, books and other internet sources.
Effect of crop patents on small scale farmers in Kenya
(Strathmore University, 2017) Magenya, Dione Vugutsa
Agriculture innovation in Kenya is shifting from the public sector to the private sector through the research in the use of recombinant DNA techniques to develop new plant varieties. Consequently, these biotechnology companies secure their investments through the patent framework. Most farmers in Kenya are small scale farmers, who play an important role in conserving local plant genetic resources. Restricting farmers on the free access to improved seeds will essentially decrease global biological diversity
A Critique of the victim protection act, 2014 from the point of view of women as victims of crime
(Strathmore University, 2017) Cherotich, Viola Anne
Women in African societies have always been "victims" of their own societies with lower status and fewer rights than their male counterparts. They have been considered inferior to men, with the consequence that power, prestige and property are unequally distributed on the basis of gender. Regarding crimes and abuses against women in more modern times, accessing justice has often been futile owing to ridicule, discrimination, victimization and fear. All this is as a result of discriminatory laws as well as customary beliefs and practices.
A Critical analysis of the legal, ethical and international perspectives to altruistic gestational surrogate motherhood in Kenya: whose baby is it?
(Strathmore University, 2017) Kirubi, Mumbi Mariah
In 2014, the Reproductive Health Care Bill was introduced in Parliament. The Bill affords a chapter for the regulation of altruistic gestational surrogacy arrangements, a non-commercial agreement between two parties, in which one party agrees to bear a child of which the party is not genetically related to and upon the birth of the child relinquish all parental rights over the child to the other party. The determination of legal parentage of the child born from such an arrangement has been a legal tussle for courts in Kenya to contend with since neither the current laws nor the proposed Reproductive Health Care Bill provide direction as to whom parental rights are entitled upon the birth of the baby. The objective of this research paper is to determine which party is entitled to these parental rights. On the one hand, these rights may be entitled to the surrogate since she carried and gave birth to the child while the rights may also be entitled to the intending parents who contracted the surrogate and initiated the whole process. Either way, the lack of legal direction on the issue has led to uncertainty and controversies. Therefore, this paper conducted a qualitative study which comprised of a literature review of the determination of legal parentage in gestational surrogacy arrangements. First, this paper explored the theoretic framework underpinning altruistic gestational surrogacy arrangements. Second it addressed the state’s and the societal interest in the determination of legal parentage in these arrangements and third, it undertook a comparative review of the legal framework in the United Kingdom and South Africa which offer guidance for the determination of legal parentage in an altruistic gestational surrogacy agreement in Kenya. Consequently, this paper finds the law of contract is sufficient to ensure the validity of the terms of an altruistic gestational surrogacy arrangement. Thus, the intending parents should have primary parental rights upon the birth of the child. Furthermore, this paper also asserts that the inevitable role played by the state in implementing a legal framework that recognises the intending parents as the legal parents of the child born from an altruistic gestational surrogacy arrangement in Kenya.
Kenya’s laws of succession and the bill of rights of the Kenya constitution (2010): a study in legal reform.
(Strathmore University, 2017) Kimiriny, Doris Soyian
The Law of Succession Act Cap 160 came into force in 1981 and was meant to create a single legal succession regime applying uniformly to all Kenyans; and to comply with international obligations including those enshrined in the Convention on Elimination of Discrimination against Women (CEDAW) adopted by the General Assembly of the United Nations in 1979. Even in its present revised form, the Law of Succession Act (2015 revised), the Act has provisions that apply specifically to Muslims and to the customary laws of the people located in specific areas in the country. As a result the Act discriminates against women on the basis of gender and is inconsistent with the constitutional rights enshrined in the Bill of Rights of the Kenya Constitution (2010). This study seeks to assess the compatibility of the Law of Succession Act (2015 revised) provisions with the new constitutional dispensation in Kenya whereby the right not to be discriminated against on the basis of gender is guaranteed in accordance with article 27(4) of the Kenya Constitution and also international human rights standards and practice. The study shows that there are numerous factors such as the Kenya marriage laws and practices, judicial enforcement mechanism and political circumstances that affect how succession claims are practised and enforced. A comparative analysis with South Africa is alluded to because it shows how statute law and customary law used to apply to the whites and black people respectively and how they managed to change these laws and eventually created a uniform legal succession regime.Part of the study focused on Narok County; several interviews there confirmed that the practise of customary succession laws is prevalent in rural Kenya and that women undergo duress and discrimination whenever they try to defend their legal and constitutional rights and to find legal assistance on the same.The study recommends, among other solutions, that the Law of Succession Commission should enact a new succession law with uniform application excluding discriminatory provisions and also ensure an accessible, cost-effective and reliable enforcement mechanism throughout the country
The Applicability of traditional dispute resolution mechanisms in criminal cases in Kenya
(Strathmore University, 2017) Chepkoech, Carol
Before the advent of colonialism, Africans had their own mechanisms of dispute resolution which were based on the customary law applicable at the time. These mechanisms, otherwise referred to as traditional dispute resolution mechanisms (TDRMs), had provisions for all kinds of disputes arising including those of a criminal nature. Colonialism resulted in the importation of laws from other jurisdictions, particularly England, specifically through the reception clause. Pursuant to the repugnancy clause, customary law could only be used to the extent that it was consistent with written law and was not repugnant to justice and morality. Article 159 of the Constitution of Kenya (2010) states that in discharging its mandate the judiciary has an obligation to promote Alternative Dispute Resolution Mechanisms, under which it specifically mentions TDRMs. The objective of this study is to establish whether TDRMs are currently applicable in criminal cases in Kenya, and if establish the scope of their application. Chapter 1 lays the background, states the objectives and explains the theoretical framework of this study. Chapter 2 looks into the historical development of TDRMs in Kenya as it pertains to the resolution of criminal disputes. In answering the question as to whether TDRMs are applicable in criminal matters, chapter 3 examines the various enabling constitutional and statutory provisions as well as the jurisprudence that has been developed by the court on the same. Chapter 4 seeks to address the question of the extent of TDRMs in criminal cases; whether it can be used for both felonies and misdemeanours, at what point it can be invoked during a trial and which parties should be involved in the course of resolving disputes through TDRMs. Chapter 5 explains the findings of this study then goes ahead to make the conclusions and recommendations.
Realising article 53(1)(f) of the constitution: pretrial detention as a meseaure of last resort
(Strathmore University, 2017) Nereah, Mary
This study explores the principle of detention as a measure of last resort, particularly pre-trial detention and whether it is in keeping with first, Article 53(1)(f) of the constitution of Kenya and second, the international standards with regard to children held in remand.The study adopts the labelling theory of juvenile delinquent behaviour and the principle of detention as a measure of last resort. It further examines the experiences of how juveniles have been dealt with historically in the pre- colonial era and colonial era. It then follows to examine the experiences of how juveniles are dealt with, the barriers within the Kenya Juvenile Justice System and effects of detention of juveniles. In doing so it seeks to identify the gaps between the legal provisions and the practices in relation to the detention of juveniles.Following this, the study examines some of the alternatives to detention of juveniles through acomparative analysis of three states, namely: USA, UK and Sweden in contrast to the practices in Kenya. In doing so it provides a platform through which Kenya can adopt some of the practices from these states which will enable Kenya to have a comprehensive juvenile justice system that enables juveniles to be reintegrated back into the society and reduce recidivism. In this study, it is the peer role model.It finally concludes by giving recommendations to various state actors and stakeholders on the way forward that can be put into consideration. Some of the recommendations include, entrenchment of diversion programmes in the Constitution and Children Act, training of child protecting stakeholders and developing legal and policy guidelines on alternative care systems.
The FIFA rule of non-interference: how it contributes to corruption and how it contravenes Kenyan law
(Strathmore University, 2017) Khan, Walid
The FIFA rule of non-interference was created undoubtedly with good intention, that is, for the betterment and development of football around the world by preventing governmental and political interference in football matters. However, this rule protects corrupt football officials because they cannot be summoned by the courts or governmental institutions of their own states to answer for their malpractices. As a result, the FIFA rule of non-interference contravenes national law. This dissertation aims to discuss how the FIFA rule of non-interference contributes to corruption and how it contravenes Kenyan law.
Should the intellectual property laws be amended to provide for a distinct legal framework on image rights in Kenya?
(Strathmore University, 2017) Mumbua, Fidelma
The laws of Kenya do not sufficiently cater for Image Rights and neither do the courts acknowledge it as a common law right. Disputes resulting from dishonest business practices such as the commercial appropriation of a person’s image lack an appropriate forum in Kenya’s formal justice. Image rights is an essential intellectual property right that shields a person from any unauthorized commercial use by third parties of his image in advertising,endorsing or merchandising their goods and services. This research paper sought to explore the scope of image rights including the theory of property that advocates for its justification,the proprietary interest it protects, examine its application in other jurisdictions where it is well established and lastly provide recommendations on its identification and implementation in Kenya.The study was carried out through the literature review of various legal scholars well versed with image rights and intellectual property law as a whole and took a qualitative analysis. It found that image rights also known as the Right of Publicity evolved from the right of privacy, a right that was first talked about in 1890 which was meant to protect the privacy and intimate details of an individual from the prying eyes of the press. Over the years however it was discovered that celebrities have an economic value in their name and likeness and an appropriation on the same resulted in an economic injury instead of mental distress and for this reason, the US courts appreciated the economic interest present in one’s image and introduced the right of publicity. Chapter one of the study shall introduce image rights and discuss the current situation in Kenya outlining the objectives of the study and the research questions, chapter two explores the theoretical framework while chapter three conducts an examination of image rights frameworks in the US and the UK. Chapter four shall apply the findings of the comparative analysis identifying certain lessons that Kenya can borrow and lastly chapter five shall provide recommendations to resolve the gap in the Kenyan legal system.
The Correlation between forced evictions and housing right violations in developing nations hosting the FIFA world cup
(Strathmore University, 2017) Zoher, Shabbir Mohamedali
For quite some time, the FIFA World Cup has been linked to Human Rights violations. However, forced evictions and housing rights violations seem to occur more severely in developing countries which host the International sporting event. This dissertation shall attempt to show how FIFA’s Football Stadiums: Technical Recommendations and Requirements induce forced evictions in developing host nations by carrying out a study on the World Cups hosted in South Africa(2010) and Brazil(2014). Additionally, this dissertation will discuss reasons why such evictions and violation were not experienced in Germany (2006) even though all three countries had to abide by the same FIFA requirements. Finally, this paper shall contain recommendations which aim to ensure such evictions and housing right violations do not occur again.
Environmental refugees: exposing their protection gaps in international law
(Strathmore University, 2017) Wanjala, Dean George
This dissertation explores two principal research questions: first, whether international law provides for a mechanism that protects those moving away from harsh environmental conditions and secondly, whether existing international refugee laws can be adopted with necessary modifications to contain ‘environmental refugees’.The point of departure of this dissertation will be the existing 1951 Geneva Convention relating to the Status of Refugees enacted six decades ago to protect people fleeing persecution of their civil and political liberties. It will be argued that this Convention is an antiquated form of protection for the recent wave of migration patterns across international borders to escape environmental calamities witnessed from across the Sahel and the Horn of Africa, as well as the Soviet Union, Latin America and low-lying islands such as Tuvalu and Kiribati. As such there is a new breed of refugees who will be named ‘environmental refugees’ for purposes of this study, who cannot find solace in the existing refugee laws. The dissertation will investigate the existing international and regional laws in detail, as well as alternative protective regimes before recommending a holistic approach in dealing with this emergent crisis.

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