LLB Research Projects (2018)

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Access to and benefit sharing of genetic resources in Kenya
(Strathmore University, 2018) Nyororo, Alex Gatawa
Access to and benefit sharing of genetic resources, which are defined as including microorganisms, plant and animal material including indigenous seeds, genetic plant varieties and traditional animal breeds that contain functional hereditary units, has been a topic of debate in international law. Previously genetic resources were regarded as a common heritage of mankind, this granted free access, collection and utilization of genetic resources belonging to local communities without the informed consent of those community. This study examined the current legislative and regulatory globally and in Kenya and came up with recommendations which Kenya can implement to facilitate the participation of local communities in the process of access to genetic resources and to ensure that local communities benefit from exploitation of their genetic resources. The study was conducted through comparative analysis of the approaches taken by India and Philippines.
An Analysis of Article 26 (3) on the death penalty in the Kenyan 2010 Constitution
(Strathmore University, 2018) Mwendwa, Kavutha
This study analyses article 26 (3) on the death penalty in the Kenyan 2010 constitution. The Kenyan judiciary continues to sentence convicts to death based on the formulation of the right to life in article 26(3) of the constitution and the death penalty provisions in the penal code. However, the rare occurrence of actual execution has made many view Kenya as a de facto abolitionist state. Moreover, the death penalty though codified is applied only through sentencing and not execution. Using the theories of contextualism, constitutionalism and human rights, this study examines the extent to which the death penalty complies with the constitution, particularly the bill of rights. Through qualitative analysis of case law and secondary sources, the study found that Kenya’s de facto abolitionist status allows for violations of constitutional provisions on the right to life, human dignity, access to justice and freedom and security of the person. This study concludes on the extent to which the death penalty is antithetical to the constitution. To harmonize the penal code with the constitution the study recommends that the death penalty should be legally abolished.
An Analysis of denial of women's rights, with regard to access of matrimonial property in Kenya
(Strathmore University, 2018) Okello, Mildred Aoko
Since time immemorial, there has been an imbalance in women's and men's rights with regard to division of matrimonial property in Kenya. This study delves into the protection of women's rights to matrimonial property upon the dissolution of a marriage. The starting point of the study is the history, and what property rights were enabled to each back then, versus now. As the study is relevant to Kenya, Kenyan law and common law will be evaluated. By way of case law, the study examines how women's rights to matrimonial property are protected by the statutory provisions in Kenya, and how adequate these are.
An Analysis of epistolary jurisdiction as a viable means of access to justice for Kenyans
(Strathmore University, 2018) Kavenya, Sophie Muya
Access to justice consists of the dispute resolution mechanisms which are affordable, within reach and ensure justice without undue delay and whose processes and procedures are understood by anyone seeking redress from the courts. 1 Consequently, this population as a whole might not easily access justice; there is need for mechanisms through which they can seek redress aside from the formal justice system. The situation in Kenya right now does not allow for the easy commencement of court proceedings without the usual rigorous process that comes before it. This process, as outlined in the Civil Procedure Rules under order 3, is very hard to understand for the average Kenyan and often discourages most if not all people who cannot understand the process of starting proceedings. Tills is one of the reasons why Epistolary Jurisdiction would be a welcome approach for access to justice. It will ensure that justice for all is sought according to the Article 22 (1) which talks about the right of every person to institute court proceedings based on the claim that a right or fundamental freedom has been infringed, 2 and that the system accommodates the poor in society as well which is in accordance with Article 22 (3)(b) which allows for the Chief Justice to make rules providing for court proceedings under clause (1) which minimize formalities relating to the commencement of proceedings. Moreover, without equal access to justice, the poor are unable to seek redress against those who wrong them. This is very dangerous as a lot of these people are pushed into an endless cycle of unfair treatment. This further weakens their ability to seek redress, as the lack of a means to justice almost becomes the norm and is dealt with in the silence of homes, never to be spoken of
Analysis of succession of property in Kenya in the case of cohabittees
(Strathmore University, 2018) Wafula, Taria Trixy
Bromley’s Family law book1 defines cohabitation as couples living together outside marriage. With the increase of cohabitation unions which are not recognized by the law, more marital problems seem to emerge. Succession laws in Kenya do not clearly provide the procedure of how cohabiting couples can inherit their property. Since this property cannot be termed as matrimonial property, the rights accrued to married people are different from the rights that are availed to cohabiting couples. The problem that this paper is addressing is that when one of the partners in a cohabiting union dies, the law does not clearly stipulate how the surviving partner will inherit the property that was acquired in that union.
An Analysis of the disposition espoused by international law with regard to same sex marriage
(Strathmore University, 2018) Anzabwa, Ian Omutimu
The purpose of this study is to establish the disposition espoused by international law with regard to same sex unions. Article 23 of the International Covenant on Civil and Political Rights contains an express right to marry. This dissertation analyses this provision, other United Nations human rights treaties, and relevant jurisprudence to determine whether art 23 applies to same-sex couples. In the only authoritative interpretation of art 23, Joslin v New Zealand, the United Nations Human Rights Committee found that it does not apply to same sex couples. However, that decision is more than 12 years old and arguably would not be decided in the same way should a similar case come before the Human Rights Committee in the future. Using the principles of treaty interpretation, this dissertation asserts that Joslin v New Zealand is no longer good law, and concludes that the right to marry should be interpreted in a non-discriminatory manner and should not be restricted exclusively to opposite-sex couples. Moreover, this dissertation juxtaposes the United Nations framework to the European one in so for as the LGBTQI agenda is concerned.
An Analysis of the law on service pay in Kenya
(Strathmore University, 2018) Maina, Shalmar Esther Nyambura
This dissertation analyses the current legal framework in Kenya with regard to service pay. In addition, it analyses the legal framework in other jurisdictions such as India, Sri- Lanka and the Gulf Cooperation Council countries with due regard to Kenya's legal system and methods. It highlights how other jurisdictions have properly and conclusively legislated on service pay and provides suggestions such as statutory reform in order to improve the law on service pay in Kenya.
An Analysis of the legal rights of intersex people in Kenya
(Strathmore University, 2018) Koe, Gloria Kariro
According to the proponents of the natural law school of thought, human rights exist as result of higher law than that made by man. There are certain moral norms that bind us as rational beings regardless of where a person comes from. John Locke thus states that all human beings were by their own nature to respect one another as equals. He explored this concept in "The second Treaties of Civil Government". In his Chapter 2 'The State of Nature ' he affirms that all men are free to direct their actions and disposes of their possessions without seeking permission from anyone except within the limits imposed by the law of nature. In line with this state of equality no person has more power and authority that another as they are creatures of the same species and status. The protection of the life and dignity of men is thus a function of a legitimate government and a lack of such protection is a threat to the stability of human rights. The objective of this study was to investigate whether the current legal framework protects and promotes the rights of intersex people. This was achieved by analyzing certain domestic legislation. It emerged through the discussion that there are hopeful signs towards the protection and the promotion of the rights of intersex people at the national level through the constitution of an intersex taskforce. The Constitution has not specifically made reference to the rights of intersex people but has put up mechanisms where there can be redress, where fundamental rights and freedoms have been infringed. The inclusion of the word intersex in the interpretation of sex would ensure the instances of institutional discrimination are reduced.
An Analysis of the prosecution of hate speech in Kenya - The Common good perspective
(Strathmore University, 2018) Opiyo, Charles Lwanga
Hate speech is the new narrative in Kenya’s political discourse. This rhetoric has been employed to galvanise one’s supporters against an opposing group. The opposing group is often another ethnic community. This is validated by the sources of information considered in this study: journal articles, statute, and case law all seem to recognise that ethnicity is central in Kenya. Over and above being ethnic, hate speech presents a tangible danger to the fabric of society, the common good. A damning example of the realisation of this threat is the 2007 Post-Election Violence. The Director of Public Prosecutions has been charged with dealing with instances of hate speech via prosecuting them, with the aim of convictions. In this way, the law can act as a deterrent. The reality however, paints a different picture. Instances of acquittal of politicians based on procedural technicalities and the use of nolle prosequi orders without sufficient legal cause have become the norm. The inconsistency in the application of prosecutorial powers has rendered hate speech laws in Kenya nigh ineffective in dealing with hate speech perpetrated by persons of influence. This study seeks to elucidate the extent of these inconsistencies and attempt to establish a root cause. It will also show that there is in fact, a cause and effect relationship between hate speech and the occurrence of violence. In doing so, another approach to prosecuting hate speech will be suggested, based on instances of effective hate speech prosecution in case law and theories of legal scholars.
An Analysis of the status of cohabitants in Kenya law and the challenges they face
(Strathmore University, 2018) Watiri, Salmer Karimi
The Marriage Act1 does not provide for cohabitation as a legal union m Kenya. It only recognizes Customary, Hindu, Islamic, Christian and Civil marriages.2 The Marriage Act does however provide a definition for the word cohabit to mean, "To live in an arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage."3 The statement of the problem of this dissertation is that, failure of the law to recognize cohabitation as a legal union subsequently results in the lack of a clear stipulation with regards to the status of cohabitants in Kenyan law and more so on the protections allowed under such a union. The assumption is that parties in a cohabitation union are entitled to some of the rights and protection that parties in a legal union enjoy and that the parties are aware of these rights. The courts have attempted to accord these rights to the said parties and recognize cohabitation unions by applying the common law principle of presumption of marriage. The application of this principle in the Kenyan legal system has consequently attempted to provide a better understanding of cohabitation. This is discussed in the land mark case of Hortensiah Wanjiku Yawe v Public Trustee4 which set out the factors that are now considered when determining if there is a presumption of marriage between two parties.
An Analysis of uber drivers' employment status in accordance with the Kenyan labor law
(Strathmore University, 2018) Wambaa, Ida Wangari
This dissertation is an analysis of the Employment Status of Uber Drivers according to Kenyan Labor Law. The dissertation seeks to answer the question of whether the Kenyan Labor Law is sufficient in safeguarding the labor rights of Uber Drivers in Kenya as anticipated under Article 41 of the Constitution of Kenya. It further seeks to find out if the classification of the employment status in Kenya should be broadened to accommodate the reality of Uber Drivers Labor relationship with Uber. In conducting the study, case law is used to understand the current relationship between Uber and the drivers. After analyzing the relationship, it becomes apparent that the Kenyan Labor Law is not sufficiently established to properly categorize Uber drivers and needs to be developed further. Having understood the relationship, a comparative analysis is conducted with the United Kingdom who seems to have settled the matter. The study proposes that legislators need to embark on creating protections for Uber drivers and other workers of companies who find themselves in a similar predicament.
The Application of Jus-sanguinis during post -colonial state succession and the creation of statelessness: a comparative study of Kenya and Tanzania.
(Strathmore University, 2018) Gichuhi, Tabitha Mumbi
Among the reasons why Africans are le.fi without a nationality is the colonial history of their respective states. Following the attainment of independence, these newly independent African states had to grapple with the formulation of citizenship laws that would apply to political units comprising of people from different cultures, religions and languages. In a bid to achieve this, governments had to decide whether to grant citizenship on the basis of the law of descent (jus sanguinis) or the law of the soil (jus soli). The general objective of this paper is to investigate the motivations that would lead a state to choose either mode of granting citizenship as well as its resultant effect on the creation of statelessness. it will additionally look into the nation-building processes of Kenya and Tanzania, which apply Jus sanguinis and jus soli respectively, as well as their citizenship policies before and after the attainment of independence. This examination hopes to eventually determine whether these policies, from the point of state succession, have lived up to the obligation to grant nationality to persons within their territories and prevent the occurrence of statelessness
The Application of the defense of duress and mental incapacity in relation to former adult child soldiers: a case study of Dominic Ongwen
(Strathmore University, 2018) Awene, Aska Okeyo
Child soldiers tend to be viewed as either victims or perpetrators. Child soldiers are seen to be victims because of the forceful recruitment and the inhumane treatment that they endure under the hands of their recruiters. They are exposed to violence; with most of them being forced to participate or witness the violent acts while being abused. exploited, injured and some even killed. 1 The act of recruiting child soldiers and using them to actively perpetuate crimes is a crime under international criminal law. 2 The view of d1ild soldiers as perpetrators is based on the fact that they have inflicted harm against members of their community and that it becomes difficult to ignore the atrocities they committed based on their status as children. The question that then arises is which of the two views is more beneficial towards attaining justice and what then would be the most appropriate defense that a former adult child soldier such as Ongwen, whose case will be discussed in the subsequent chapters, can possibly raise as an accused in the ICC. International Criminal Law requires that during the prosecution of an alleged perpetrator of war crimes and crimes against humanity, it is necessary that the prosecution proves the existence of actus reas (act) and mens rea (intent).3 In relation to former child soldiers, the challenge does not arise in proving that the act was committed but it arises in proving whether there was any intent to catTy out the prohibited act. In determining the existence of intent, it is important to examine the circumstances that surrounded the accused. This paper will argue that a former child soldier that is appearing as an accused at the International Criminal Court, can successfully plead U1e defense of duress and mental illness. To advance this argument, the paper will rely on decided cases of the lCTY and the studies of psychologists that will prove the correlation between the mental state of a person and their involvement in crime
Approval and licensing of buildings in Kenya: challenges and corrective measures taken in Nairobi county.
(Strathmore University, 2018) Wendy, Kanorio Muchai
Approval and licensing of buildings is an important aspect of building regulations, by virtue of which developers, project planners and licensing authorities can be held liable for substandard buildings. haphazard developments and unauthorized structures that are leading to the loss of lives of many people and massive destruction of property. Regardless of the robust laws and policies that have been enacted to regulate urban planning and evaluate development projects, Kenyan urban areas, and more specifically Nairobi, still faces a myriad of issues concerning poor urban planning and frequent collapsing of buildings. This study aims to look into the current legal framework governing approvals and licensing of buildings in Kenya, and to examine the effectiveness or lack thereof of the enforcement mechanisms undertaken to effectuate such approvals and licensing of developments, as well as to investigate the factors that contribute to the challenges in implementing the licensing and approval of buildings as established by law
Assessing the effectiveness of custodial sentence in Kenya
(Strathmore University, 2018) Muiruri, Sylvia Nyathira
The issue of effectiveness of custodial sentence in Kenya is one that needs to be analyzed especially since imprisonment is expected to be used as a means of rehabilitating offenders and in the end, reduce the crime problem in the society. The main reason for conducting this study is based on the claims that there is an increase in the likelihood of offenders released from prison reoffending. The media in the past has highlighted stories of the public sending released inmates trooping back to prison because they have reoffended within a short period after release. To do this, the study sought to analyze the effectiveness of custodial sentence as a form of punishment in the criminal justice system in Kenya. The specific aim was to assess the legal framework for sentencing in Kenya and discuss the utilization of the types of sentences in Kenya. This study is limited to prisons in Kenya, and the primary focus is the criminal justice system. The study makes the assumptions that; there are similar factors that may impact reoffending by both men and women and the prisons are not effective due to the Over utilization of custodial sentence in Kenya. A lot of focus in the past has been on the situation within the prisons in terms of living conditions, however this has failed to adequately address the cause of the ineffectiveness of prisons. This is because there is limited information on the factors affecting prison management and this may be attributed to the somewhat closed nature of the prions. It was therefore against this background that the main objective of the study was to assess the factors outside prisons that lead to the ineffectiveness of the custodial sentence. To achieve this, the study employed a research design that is qualitative mainly through the collection of data from published reports, journals, books and internet resources. The theory of utilitarianism particularly the objective proposed that is rehabilitation is the backdrop of this study. A major finding of the study was that prisons are faced with the problem of overcrowding as the number of inmates in prison has by far surpassed the expected capacity. This in turn has led to a burden placed over prison staff and strains on the facilities and therefore the objective of rehabilitation is difficult to achieve. The study therefore recommends that some measures need to be employed to ensure that the courts increase the use of alternatives to imprisonment and the legislature introduces early release measures such as parole.
Benefit sharing in Kenya's extractive industry: a look into what entails fair and equitable sharing of natural resources
(Strathmore University, 2018) Ndirangu, Lemmy Kamau
Exploitation of natural resources has often resulted in one affected party losing out or being exploited. This is because of the legal framework not making provisions to ensure that all citizens gained something from the natural resources being exploited. This created the need to come up with the Natural Resources (Benefit Sharing) Bill of 2014 pursuant to article 69 of the Constitution of Kenya which made provisions for the natural resources should be shared in a fair and equitable manner. This study will therefore be looking at what entails a fair and equitable sharing of benefits arising from the exploitation of natural resources in the extractives industry. The findings of what it entails will then be juxtaposed to the existing legal framework for purposes of deciding whether the framework reflects what fairness and equity entails.
Beyond elections rituals - Rethinking public participation in Kenya's public finance management
(Strathmore University, 2018) Wanjiku, Francis Njoroge
Public participation is one of the edicts of the Constitution of Kenya, 2010 which aims to promote transparency and accountability of public resources to the people of Kenya. One of the principles of public finance in Kenya is to promote transparency and accountability in the process of public finance. This paper seeks to find out ways in which different levels of government have breathed new life into this principle of good governance. Before the enactment of the Constitution of Kenya, 2010 Kenya did not have any kind of legislative statute that promoted transparency in the public finance system; it was done at the whim of the executive. Budget statements would be read at the request of the President; finance bills would be legislated in Parliament at any period during a financial year, parliament would rubber stamp budget statements without scrutiny and most importantly the people of Kenya were not involved in the process-apart from watching the Minister for Treasury annually posing with the popular briefcase engraved with the court of arms and thereafter reading the budget statement live on state television. This events allowed the researcher to explore what really is public participation. Public participation is the process by which government consults with interested or affected individuals, organizations, and other necessary stakeholders before making a decision. Other terms sometimes used are “public involvement,” “community involvement,” or “stakeholder involvement. The study has gone further to identify important principles that should be adhered to in order to build a successful model of public participation. In conclusion, the study proposes a two way communication system which allows deliberation rather than mere participation. In order to strengthen the democratic principles upon which the country is founded upon, the executive and legislature must go beyond legislative intent and allow the people’s contribution to influence public debate and policies. It cannot be that public finance matters are left to the few technocrats at the Ministry of Treasury and Parliament.
A Call for reform of international refugee law: the need for an expansion of the definition of a refugee under the 1951 refugee convention
(Strathmore University, 2018) Motaroki, Deborah Nyanduko
In recent times, the UNHCR has been accused of railing in the fulfilment of its mandate as provided for under its statute. However, the entirety of fault is not to be borne by the UNHCR, owing to the fact that the Agency relies on laws drafted for a different time. The main aim of this research is to investigate whether there is a need for reform of the international refugee law regime. The objects of the study were to distinguish the circumstances that led to the formation of the 1951 Convention from the prevailing circumstances and to establish the role of the UNHCR in the enforcement and development of international refugee law, in a bid to determine the applicability or the existent laws to the modern refugee crisis.
The Case for structural interdicts in the protection and fulfillment of socio-economic rights in Kenya
(Strathmore University, 2018) Doc, Cephas
In 2010, Kenya promulgated a new constitution that bore all the hallmarks of progress and which is widely considered transformative. One stark example of this was the unprecedented inclusion of Socio - Economic Rights under in the constitution under Article 43, thereby granting very high legal status to these rights which have been traditionally considered the results of proper social and governmental order crystallized in protection and fulfilment of civil and political rights. This in effect created the possibility for a plethora of transformative jurisprudence in the Kenyan legal landscape with the judiciary leading the way through proper interpretation of the law concerning human rights and defining contours of enforcement of the same. This new order brings with it novel remedies for compliance in the event of a breach of economic and social rights. One such remedy is the Structural Interdict (supervisory orders) which allows a court to monitor compliance with its orders over a specific and determined period of time after a declaration of rights has been made. Although now nipped in the bud, this remedy was in use in Kenya and increasingly gained legal notoriety up until the Court of Appeal capped its use in the landmark case of Kenya Airports Authority v Mitu-Bell Welfare Society & 2 others [2016} eKLR (herein after referred to as 'The Mitu-Bell Case'). This dissertation analyses that decision in light of the transformative ideals of the Kenyan constitution and proffers a contrary perspective. It considers the judgment of the court of appeal, although well-reasoned, severely retrogressive and inimical to the ideals of progress espoused by the Constitution of Kenya 2010. The arguments of the Court of Appeal are considered, analyzed and countered; hence the case for structural interdicts in Kenya.
A Case for the abolition of the death penalty
(Strathmore University, 2018) Karanja, Waweru
Kenya has had the death penalty through 70 years of colonization and 54 years of independence. The punishment is handed down to capital offenders and although no one has ever been hanged in Kenya since 1982 the number of death row inmates is quite high. The death penalty involves the deprivation of the supreme right to life. A right which is protected under article 3 of the universal declaration of human rights, l article 6 of the ICCPR,2 article 4 of the ACHPR3 and article 26 of the Kenyan constitution.4 Thus its existence not only violates the human right to life but also international norms and standards and human rights law. This paper will provide a case for the abolition of the death penalty by suggesting that the death penalty does not mitigate nor deter crime, that it infringes on the right to life and amounts to human torture, a practice that has no place in our modem society, that without a fool proof justice system, the risk of executing innocent persons cannot be ruled out and Such a miscarriage of justice would be permanent and finally that the is an alternative to the death penalty which is reform and rehabilitation. The study mainly relied on case law, internet articles and various international and domestic legislation. It was mainly conducted through a desktop research and the use of books. This study found that there existed no evidence that the death penalty deters crime in Kenya. It also found that the death penalty infringes on the basic human right to life and amounts to torture. It also found that instances of miscarriages in justice have been quite numerous in the world. Many have been the times that scores of innocent persons have been wrongfully executed. This paper also found that there exist alternatives to the death penalty. It found that rehabilitation and reform have the possibility of changing some. This paper recommends that Kenya should with immediate effect ratify the second optional protocol of the International Covenant on Civil and Political Rights (ICCPR) that aims towards the abolishment of the death penalty. It further recommends that Parliament makes the necessary amendments to the constitution and the penal code to abolish the death penalty from Kenya completely.

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