LLB Research Projects (2020)

Permanent URI for this collection

http://hdl.handle.net/11071/12217

Browse

Now showing 1 - 20 of 112

Access to private deliberations of administrative bodies The case of the judicial service commission
(Strathmore University, 2020) Peacela, Cherotich Atim
Administrative functions in Kenya are devolved to administrative bodies. Three categories of administrative bodies exist: public bodies, private bodies exercising public functions, and private bodies exercising de facto private functions. Administration by these bodies is governed by certain principles and values. The principles of administration dictate that the processes within the administrative bodies be just and fair. The principle of accountability states that the administrative body should be able to justify its actions and decisions. The Judicial Service Commission is an independent administrative body; hence, it must be subjected to administrative principles. These principles include legality, fairness and procedural fairness. This paper aims to determine whether in subjecting the Judicial Service Commission to accountability, private deliberations of the commission can be publicised. The main method of date collection used is review of cases, legal instruments, books, journals and other periodicals
Accessing justice in Kenya: An analysis of case backlog in Nakuru environment and land court
(Strathmore University, 2020) Onserio, Michelle Nyaboke,
In Kenya, various laws such as the Constitution and Judicial Service Commission Act of 2015, guarantee the right to access to justice as a human right. However, evidence shows that people are not accessing justice expeditiously due to case backlog. This problem arises from several factors ranging from problems in the judiciary’s administrative system to the attitude of judicial officers. An attempt to solve the problem has been the transformation framework put in place by the Judiciary to increase judicial staff and the number of courts. Despite this measure, the problem persists in various jurisdictions. This study seeks to examine factors contributing to the persistence. The research focuses on the Environment and Land Court in Nakuru for the period between 2012- 2018 where the framework has not been implemented yet. The interest of study in the Environment and Land Court is determined by the fact that the Kenya National Bureau of Statistics has ranked it among the courts with the highest case backlog. Moreover, the research assesses how this phenomenon limits the right of access to justice. For the purpose of this analysis, the study uses the Human rights theory from the perspective of legal rights theory. In this regard, the research methodology adopted is the descriptive design approach which entails collecting information sought out from selected respondents by carrying out interviews and/or questionnaires. The study showed that the reforms suggested in the judiciary transformation framework have not been implemented in its entirety therefore creating a backlog problem.
Addressing the challenges of stateless minority groups: case study of the Nubians in Kibera
(Strathmore University, 2020-11) MURAGURI, MONICA WAHURA
The focus on the study of minorities has been driven by both international and national desire to create peace and stability for all. Currently, the major problem is how to best extend protection towards this group at both national and international law levels. While many agree that there is a need to protect minority groups from discrimination as well as preventing the infringement of basic human rights, there is a clear dearth in terms of measures in place that will protect and extend to the group fundamental equal rights. Thus, the problem at hand is that Kenya does not have sufficient legal avenues to address the challenges facing minorities and protect the rights of its stateless minorities.
Addressing the inadequacies in the bail and bond provisions in Kenya: focus on corruption cases.
(Strathmore University, 2020-11) Kilungya, Charity Mumbe
The Constitution of Kenya does provide for the right to bail for arrested persons, however, there are no clear guidelines to govern the granting of bail and bond for corruption cases. The discretion has been left at the hands of the court to decide the amount of bail and bond to be granted to those arrested for corruption. This is a challenge as the cases have increased over time. There is, therefore, a need for clear legislation that will govern the courts. Through a keen study of past precedent in Kenya, it has been realized that indeed there is a gap that needs to be filled by legislation regarding the bail and bond for corruption cases.
Alternative means to a method: introducing informal methods of policing in Kenya to improve police accountability and transparency.
(Strathmore University, 2020-11) KARANJA, LYNETTE MUTHONI
The Constitution of Kenya 2010 clearly posits that members of the National Police Service have the mandate to prevent corruption and beyond practicing, promote the notions of accountability and transparency. The transformation of the police sector began in 2002 during President Kibaki’s regime. However, even with the laws put in place and the formation of relevant commissions and authorities such as the Independent Police Oversight Authority, some of the members of the police service still continue being corrupt by asking for bribes from the general public amongst other vices. Additionally, as seen in the media and news reports, some still mistreat the citizens of Kenya and infringe of fundamental rights and freedoms such as freedom from physical or mental maltreatment and inhumane treatment.
Analysis of anti-homosexuality laws in Kenya The debate on constitutionality and prospects of decriminalisation
(Strathmore University, 2020) Onguti, Corley
In the last couple of years, the LGBTIQ community has been vocal about their rights and against discrimination that they suffer as a result of the criminalisation of homosexuality in Kenya. On a global basis, more countries, including a select few African states, have begun to recognise the human rights importance in decriminalising anti-homosexual laws and further securing the rights of LGBTIQ individuals in their National laws. In the wake of this, members of the LGBTIQ community filed petitions in court challenging the constitutionality of those laws, albeit unsuccessfully. This study has undertaken to establish the court’s rational for upholding these anti homosexuality laws in Kenya, some of the prospects of decriminalising same sex conduct constitutionally, some of the challenges that this exercise may face as well as the implications of decriminalising homosexuality in the event Kenya were to venture in that direction in light of the international human rights position on anti-homosexuality laws
An analysis of Article 32(c) of the EAC treaty the efficacy of arbitration in bolstering the EAC integration agenda
(Strathmore University, 2020) Gathoni, Faith Wanjiru
The EAC has committed itself to the economic integration of the Community. The achievement of economic integration naturally results in the rise of commercial disputes given the increase in cross-border commercial engagement. Arbitration is regarded as the preferred mode of disputes settlement for the private sector. The EACJ boasts of an arbitration mechanism under Article 32(c) of the EAC Treaty. However, this mechanism remains underutilised with only one arbitration case having been heard by the Court. Therefore, this research assesses the Arbitration Rules of the Court with a view to determining whether or not they are desirable for private sector disputants. Furthermore, it examines the role which arbitration can play in augmenting the EAC economic integration agenda. This research employs a qualitative method of data analysis using both primary and secondary sources and inductive reasoning. It reveals that the Arbitration Rules of the Court as they are formulated are not desirable for private sector disputants because they are marred by numerous weaknesses. Furthermore, the research concludes that arbitration can play a key role in ensuring private sector participation in cross-border trade thereby strengthening the economic integration agenda of the EAC
Analysis of Nema’s roles, acts or omissions vis-à-vis the standard gauge railway project along Makumbi road
(Strathmore University, 2021) Saronge, Safe Martina
This study shall investigate whether NEMA, as a state agent was able to adequately ensure sustainable development with regards to the Standard Railway Gauge project. Sustainable development requirement can be said to have been fulfilled if NEMA is found to have adequately stricken a balance between its duties under the Constitution of Kenya, pertaining development and environmental conservation and ensuring the right to a clean and healthy environment is realised in the said project. The former mentioned requirement shall be viewed with regards to the activities by the proponents of the project along Makumbi Road. In attempting to analyse the issue under investigation, a number of related questions emerge: What are NEMA’s obligations under the Constitution of Kenya and under the EMCA? Did NEMA meet its obligations under the Constitution and the Act? What was the impact of NEMA’s acts or omissions thereof on sustainable development in context of the SGR Project? This paper recognises the difficulty states have had of implementing the sustainable development goals as conceptualized in the theory. Nonetheless, the paper acknowledges that this challenge ought not to be an excuse relied on by states for failure to fulfill the right to a clean and healthy environment. For; “It is only through enhancing the human capita that the economic capita can thrive.” ~Amartya Sen.
An analysis of the irretrievable breakdown of marriage as ground for divorce in Kenya
(Strathmore University, 2020-11) Mbatia, Lucy Waringa
Marriage is the very bedrock of the family and consequently of the society without which no civilization can endure. Once parties contract a marriage, the law steps in and binds the parties to various liabilities and obligations thereunder. Under the Marriage Act, 2014 both spouses have been guaranteed a right to have their union dissolved by a decree of divorce on more than one ground. The Republic of Kenya is traditionally a fault-based divorce regime owing to the nature of the grounds stipulated in the Marriage Act 2014. However, the Legislature has been aware of the social advancements and the need to avail the remedy of divorce in increased circumstances through the implementation of the irretrievable breakdown of marriage as a ground for dissolution of marriages in Kenya.
An analysis of the legal framework guiding the rights of juvenile delinquents in Kenya
(Strathmore University, 2020-11) KOSGEI, CHEPKORIR CAROLINE
Black’s law dictionary defines juvenile delinquency as an antisocial behavior by a minor; especially behavior that would be criminally punishable if the actor were an adult, but instead is usually punished by special laws pertaining only to minors. Statistics show that almost a half of the population of Kenya is made up of individuals below the age of 18 years. Statistics also show that almost 45% of the population lives below the poverty line, this coupled with other challenges puts children in need of care and protection in a precarious position.
Analyzing hate speech as a limitation of freedom of expression in political speech
(Strathmore University, 2020) Omoto, Pauline Ayako
The concept of limitation of speech in a democratic pluralist society based on equality poses complex questions. The ability of one to express political speech by speaking freely is key to self-realization and is a right that is not granted by the state but is inherent virtue of the fact that one is a human being. Therefore, every person is legally guaranteed the freedom of expression in political speech. Owing to our political history and historical injustices caused by use of hate speech by both government and individuals, an example being the 2007 post-election violence, The Kenyan Constitution lists Hate Speech as a limitation of speech. It further confers power to legislative bodies to determine its scope and how to implement the provision through sub legislating: The National Cohesion and Integration Act (NCI). Being a democratic state based on equality persons can participate in their own governance though the exercise of speech. The question then is whether Governments should have power over this expression? If we do give government power over our political speech how then do we ensure that they do not abuse the power?
Analyzing the efficacy of article 44(3) of the new constitution of Kenya (2010): a study on female genital mutilation in Kenya
(Strathmore University, 2020-11) Ouma, Yvonne Nekesa
FGM is a malpractice in Kenya that continues to be the bane of the girl child’s existence. The practice is believed to have originated from Ancient Egypt due to the discovery of circumcised female mummies from the 5th century BC. Other scholars theorize that FGM spread across slave trade routes and into Africa. In Kenya, FGM is vastly recognized as a rite of passage in some communities; however, the practice is a crime in Kenya. Article 44(3) of the Constitution of Kenya (2010) stipulates that no person shall compel another to undergo a cultural rite. Similarly, the Kenyan Parliament enacted the Prohibition of FGM Act in 2011 to abolish the practice.
Appraising the legal and regulatory framework on medical negligence in Kenya
(2021) Wanjohi, Sylvia Wandia
The medical profession is one that is heavily regulated in Kenya. However, the cases of medical negligence are rampant and most offending medical practitioners go unpunished. There exists a regulatory and legal framework through which complaints against offending medical practitioners are handled. This research seeks to examine the efficiency of these frameworks and if there are improvements that can be made. This study found that the regulatory framework has extensive and multiple moving parts. Many of the statutory regulators each regulate only a sector of the medical professionals. For example, a nurse, a lab technician and a dentist will be governed by different regulators, each with its own set of rules. Moreover, most of them cannot even give orders on compensation to a victim and are mainly focused on the profession and the professional’s transgressions. This raises the issue of the proper forum for a victim to air a complaint when, in most cases, they are treated by a number of these professionals and are seeking damages for the injury suffered due to negligence. The legal framework, though it does have the power to award damages, is still using the ‘Bolam test’ and other English decisions to determine negligence without due consideration to emerging trends and jurisprudence in the area. Furthermore, in cases of criminal proceedings brought against a medical practitioner, there does not seem to be room for a victim to bring forth a civil claim for damages.There are emerging trends such as the use of new technologies, traditional remedies and even social media to diagnose and treat patients that are considered. This study essentially puts forth the idea of use of a key, super regulator with the powers to both punish the offending medical practitioner and award compensation to the victim of the medical negligence. The legal framework would need to consider the evolving nature of the medical care field as well as the jurisprudence around it, and act accordingly.
The appropriate remedy for the breach of the 24-hour rule
(Strathmore University, 2020) Ssekubwa, Rogers Githinji
This dissertation is an introduction into a research concerning the suitable remedy for the breach of the 24-hour rule. The philosophical basis of this dissertation is hinged on Pheroze Nowrojee and Issa Shivji’s political theories on the connection of politics and justice. The theory shows the need for political support in the formulation of both victim and systemic remedies for breach of the 24-hour rule. The dissertation also assesses whether the compensation awarded by courts in isolation of other remedial principles has resulted in a recurrent violation of the 24-hour rule. Kenya’s remedial approach will be benchmarked against the pilot judgement scheme used by the European Court of Human Rights. The methods used in carrying out this research will be to investigate the current remedial practice in Kenya, the various opinions of scholars on remedies and the standard approach on remedies. Moreover, for the right to personal liberty to be respected there is a need to put in place remedial strategies that are not only monetary but have a corrective and preventative effect.
Assessment of the role of the government in providing adequate housing for vulnerable elderly persons
(Strathmore University, 2020-11) Nyakeruma, Linda Kerubo
This paper examines the role of the government in providing adequate housing for vulnerable elderly persons. This is conducted by analysing how the Government of Kenya has complied with international law and standards that provide for adequate housing for vulnerable groups, specifically elderly persons. Vulnerable elderly persons for the purpose of this study are those unable to access adequate housing on account of having no family, or having been abandoned by their families, have become homeless.
Attribution and state responsibility in cyber warfare: a case study of the not Petya attack
(Strathmore University, 2020-11) WANDUGI, LEWIS KIIRU
This dissertation addresses attribution and the attaching of state responsibility in cyber-attacks using primarily a case study methodology. It seeks to address its three objectives: an analysis on the threshold in which cyber-operation could be considered a cyber-attack, look into the relevant issues on establishing state responsibility and the standards of proof; and a further analysis on the possible consequences for a state-attributed cyber-attack. The methodology used to conduct this research was desk research with the relevant materials being analysed to give relevant insight as well as a case study to put the discourse into context which will have a direct impact on this paper’s hypothesis.
Balance of power in kenya: analysing the contribution of the ODPP
(Strathmore University, 2020) Miano, Antony
The 2010 constitution of Kenya provides for independent institutions which play an important role in the balance of power among the different branches of government. Their major responsibilities as provided for by article 249 of the constitution includes the protection of the sovereignty of the people and ensuring that all state organs observe democratic values and principles. This research shall focus on the Office of the Director of Public Prosecution. It is understood that the purpose of the ODPP is to conduct public prosecutions. This is a shift made to make public prosecutions independent from the AG, who is also a member of the executive by the fact of being the legal adviser to the executive. The ODPP is expected therefore to carry out fair and independent public prosecutions. This research will seek to find out whether the ODPP has, since its commissioning, discharged its duties in an independent manner. It will further explore cases where its independence has been hindered and what can be done to prevent it in future circumstances. The research will use the theory of separation of powers as well as institutional independence, and qualitative research methodology consulting primary and secondary sources of information
Balancing children's right to education and criminal responsibility in arson cases in Kenya
(Strathmore University, 2020) W. Pamba, Jane Pauline
The arson incident at Moi Girls Nairobi was a wake-up call to the Ministry of Education. Kenyans watched as firemen struggled to put out the raging fire. 9 students died. Property was lost to the fire. Many fires had been reported, many more came thereafter. This prompted various schools to take measures to insure themselves against future fires. Many reasons have been given for what is now a phenomenon, including a lack of awareness and support for student with mental health issues and the fact that the students are using the fire as political action. The Kenyan courts in determining these matters have increasingly ordered that the students suspected of the incidents of arson be accepted back in the schools.1 This study seeks to find out the role of the Kenyan courts and other stakeholders in the mitigation of arson; from the backing of the right to property and the right to education to the creation of a balance. It also seeks to investigate the role of the right of property in encouraging arson and in its mitigation or eventual curbing
The best interest of a Kenyan child in inter-country adoption
(Strathmore University, 2020-11) Ahmed, Zeinab Mohamed Hussein
International adoption is the most widely form of adoption practiced in most developed countries. Although many people consider this form of adoption as a “chance to save the day and become a hero”, it also opens the door for many activities that end up affecting the adopted child negatively. It also causes psychological trauma and identity crisis in the adoptee. Therefore, it raises the question as to whether such adoptions are done in the best interest of the child.
The Blame game An analysis of the application of the principle of ministerial responsibility in Kenya
(Strathmore University, 2020) Olimba, Allan Dylan Ayub
Ministerial responsibility is a constitutional principle applied primarily in the Westminster parliamentary system. The principle empowers Parliament to hold ministers accountable for the conduct of their ministries and government as a whole. It revolves around the concept of ensuring that the Executive, ministers in particular, bear responsibility for the decisions they make and for the failures of their ministries. However, modern conceptions of the principle attach a significant amount of responsibility to the subordinates of ministers for the actions they take in the fulfilment of their mandate. This study sought to find answers as to how the principle of ministerial responsibility is applied in a democratic society, what hinders the Kenyan National Assembly from holding Cabinet Secretaries to account for substandard performance of their duties and how the principle of ministerial responsibility would improve governance in Kenya. Desktop research was the primary means by which answers to the above questions was sought. By researching on how ministerial responsibility has evolved and is applied in modern day Australia, it becomes evident that it is a subtle but crucial aspect of the accountability mechanism applied to their ministers. Regardless of the fact that it originated from British convention and there is not any legislation that establishes it in the Australian legal system, it is a key feature of the relationship between the Cabinet and Parliament. An analysis of the legal regime governing the relationship between the National Assembly and the Cabinet in Kenya exposes the absence of an accountability relationship similar to that witnessed in Australia. Cabinet Secretaries in Kenya are only accountable to the National Assembly for a limited number of matters. Crucially, the National Assembly cannot hold Cabinet Secretaries accountable for substandard performance of their duties. Only the President has that power which raises questions on the potential existence of a conflict of interests in the relationship between the President and the Cabinet Secretaries. Curiously enough, ministerial responsibility applies to members of the Public Service who rank below Cabinet Secretaries in Kenya. This creates a hierarchical absurdity that sees the subordinates of the chief executive officer of a ministry being held to a higher standard of performance than the chief executive officers themselves. The research findings indicate that this glaring deficiency of authority borne by the National Assembly is not due to an oversight by the drafters of the Constitution. The law appears to have intentionally been molded to bar the Legislature and its committees from assessing the performance of Cabinet Secretaries. This study concludes by recommending an amendment to the Constitution that would see the National Assembly obtain the legal standing to assess the conduct of Cabinet Secretaries in their official capacity in a bid to promote a higher degree of accountability in Government.

Browse

Browsing LLB Research Projects (2020) by Title

Results Per Page

Sort Options