Browsing LLM Theses and Dissertations (2020) by Title
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- ItemCollateralization of intangible assets making - a case for micro, small and medium enterprises in Kenya(Strathmore University, 2020-11) Odhiambo, Eddy OumaKenya has seen regulatory reforms in the spirit of easing the cost of doing business by overhauling various statutes regulating commerce. Some of these statutes considered in this Thesis include the Companies Act, (Act No. 17 of 2015), Insolvency Act, (Act No. 18 of 2015), the Moveable Property Security Rights Act, (Act No. 13 of 2017), Banking Act, (Act No. 25 of 2016) and the Data Protection Act, (Act No. 24 of 2019). This overhaul of statutes has elevated Kenya in keeping pace with the global community, creating conducive environments for the modern credit market. The most significant reform in these statutes is the recognition of intangibles as commodities of trade. From the preamble of the Moveable Property Security Rights Act, 2017 it is clear that the statute addresses the mistrust between Micro Small and Medium Enterprises (MSMEs) and formal financial institutions by creating a means of registering specific security rights in moveable property. However, despite the statutes being in place, there is need for a systemic shift towards alternatives to tangible collateral just like the market driven acceptance of mobile money. The similarities being that in both cases the collateral is intangible. A digital registry solves the dilemma of possession which makes tangible securities attractive by allowing identification, registration and publication of security rights so as to give notice to any participant in the credit market. This is the missing link which makes intangible collateral viable. In essence as secure digital registry unlocks credit flow to the starving MSMEs if embraced by the credit market.
- ItemA Critical analysis of public participation in parliamentary ratification of oil and gas agreements(Strathmore University, 2020) Nyamai, Abel MwongelaThe oil and gas sector in Kenya is seen as an opportunity to catalyse social economic development. Instead of contributing towards economic growth, oil and gas development leads to unparalleled corruption, underdevelopment and internal conflicts. This greatly compromises the relationship between the Government and the people and leads to loss of trust. However, the only way to realise the maximum benefits of the oil and gas industry is by upholding principles such as public participation, accountability and transparency. The result of bad governance in the oil and gas industry is it spurs corruption and internal conflicts. This is what is referred to by many authors as the ‘Resource Curse’. The importance of principles such as public participation and transparency cannot be over emphasised, this as is shown by this paper is one of the ingredients that leads to sustainable development of oil and gas resources. Parliament as an arm of government has a critical role to play in the oversight of the oil and gas industry. One of the ways which Parliament does this is through the ratification of oil and gas agreements. The ratification process provides an opportunity for Parliamentarians and members of the public to scrutinize and question the agreement between the Executive and the oil and gas company. Parliament is meant to act as a voice of reason, represent the people and influence policy of the Executive. However, the experience of other jurisdictions shows that parliamentary approval of oil and gas contracts does not automatically lead to public participation in the ratification process. The problem this paper is investigating is if the current parliamentary ratification process under Article 71 of the constitution allows individuals or groups to participate effectively. This is done by a critical examination of Article 71 of the constitution to investigate the current avenues of participation in the legislative process. The paper has adopted a qualitative trajectory including literature review and benchmarking with South Africa. Secondary sources such as books and authoritative scholarly articles will heavily be used in the research. The findings of this research show that the current process of parliamentary ratification of oil and gas contracts is not able to dispense public participation. It also shows that Parliament is required to analyze an agreement that they know very little about. This not only leads to poor decision making but also creates an avenue for corruption and collusion by the government and International Oil Companies( IOC).
- ItemDelivering Public-Private Partnership infrastructure projects in Kenya; the quest for efficient compulsory land acquisition processes(Strathmore University, 2020) Munga, Nathaniel ChisengaBringing about economic development in a country like Kenya requires opening up of the vast semi-rural areas. This calls for the provision of land for public infrastructure development, the backbone for building the economy. This study sought to investigate the legal framework of compulsory acquisition and whether the current legislative framework is sufficient to favour Public Private Partnerships investments in the country. The study examined primary as well as secondary sources of literature and delved into the historical development of land rights in Kenya. The study then evaluated the gaps in the existing legislative framework that governs PPP infrastructure projects and compulsory land acquisition processes and provisions involved in the implementation of a PPP Project. It also evaluated the financial considerations and the negative impact on investor confidence that this legislative framework has had on the development of infrastructure trough the PPP model. The study then focused on a case study of the Standard Gauge Railway Project as a sample past experience, albeit a hybrid PPP and thereafter, carried out a comparative study on different jurisdictions which are considered as strong or weak eminent domain jurisdictions. The findings made were that first, there is a need to attain a position where the government holds superior rights over land in Kenya. This will facilitate land acquisition. The second finding that was made was that the rights of individual land owners ought to be protected by the state and that there needs to be a balance between the state’s superior power to compulsorily acquire private land and the protection of rights of individual land owners and persons with any interest in land. The third finding made was that the legislative framework in Kenya for compulsory acquisition would greatly facilitate PPPs if the opposing interests implemented the recommendations of this study to achieve the balance required in the protection of land rights. The main recommendations proposed by the study were amendments to various law to establish a clear-cut path to effective compulsory land acquisition legislative framework that PPP investors can deem predictable, efficient and enhances viability of PPP projects. The study proposes these measures based on the realization that the Kenyan Government has called for different innovative ways of financing public infrastructure projects which situation has been necessitated the ballooning public debt and lack of sufficient funds for development. The Kenyan Government therefore is pushing for the injection of focus on the Public- Private Partnerships sector where land acquisition continues to play an essential role in the successful and timely delivery of a successful infrastructure project.
- ItemDigital lending in Kenya; the case for regulation(Strathmore University, 2020) Muli, Ann KaswiiDigital lending has become an important trend in increasing financial access to Kenyans who need access to short term finances. The expansion of technological options in the country has seen the proliferation of smart phones and in their wake, an increasing number of digital lending apps. The challenge seen is that the sector has grown significantly without a proper regulatory framework, a fact that is associated with growing cases of predatory lending as competition for customer’s increase. This study sought to critically review the challenge of digital lending from a legal perspective with the intention of proposing a regulatory framework. The study relied on a variety of sources including primary sources such as acts of parliament from various jurisdictions, as well as case law. It also relied on secondary sources such as journals, online sources and legal literature discussion the issues. The main issues explored were the existing legal framework in Kenya under which digital lenders operate. Some consideration was also given to the reported practices of digital lenders especially relating to unfair trade practices. The study then focused on a benchmarking study of the regulatory framework governing digital lending in India and Nigeria, India being a more developed financial economy, while Nigeria offering an African perspective on digital lending. The key findings made included the following; First, there is no unified law or single regulator with a clear mandate to regulate the digital lending sector in Kenya, but there are several relevant regulators and laws that in total provide partial regulation of digital lending in the country. Secondly, it was determined that due to the gaps in regulation, digital lenders were infringing the rights of the mobile loan customers in Kenya, who are mostly the low income earners and with low levels of financial literacy. The third finding made in the comparison with India and Nigeria is that both countries had regulators with a clear mandate on digital lending, but in the Nigerian case, the presence of a strict regulatory climate seemed to stifle the growth of the sector. The main recommendations offered from the study were the enactment of an enabling law to establish a regulator for the sector or the amendment of existing laws to accommodate the issues arising from digital lending. The use regulatory sandboxes was encouraged to reduce the negative impact of regulation on innovation.
- ItemThe Dilemma of the democratic implementation of the two thirds gender rule in the National Assembly: the Kenyan experience(Strathmore University, 2020) Ombwori, Sarah KemuntoIn many Parliaments across Africa, the number of male representatives is higher than that of their female counterparts. The same is true for Kenya thereby prompting the women movement to advocate for the rights of women. This culminated in the inclusion of various articles on women’s rights in the 2010 Constitution including Article 27(8) which provides for the two third gender rule and mandates Parliament to enact laws to actualise this provision. No law has been enacted since the promulgation of the 2010 Constitution to realise the gender rule. The Constitution also provides for the right to vote under the principle of universal suffrage in article 38(2). Citizens choose representatives that reflect their interests best. The elected representatives at the constituency level later come together to form the National Assembly. As the citizens are exercising their voting right under article 38(2) of the Constitution, the consequence is that the threshold set out in article 27(8) may not be achieved. This has been the situation since the promulgation of the 2010 Constitution. It is upon this backdrop that this study sought to analyse the measures in place as well as the attempted measures to implement article 27(8) of the Constitution in the context of National Assembly, to interrogate whether the measures in place are compatible with the principle of universal suffrage as a component of democracy and whether the measures adopted by other jurisdictions are relevant to the Kenyan situation. The study applied both qualitative and quantitative research methods to collect data from the National Assembly of Kenya. Structured questionnaires with open and closed questions were used. The study also relied on secondary sources such as books and journals. The study established that there are two main Constitutional measures for the implementation of the two third gender rule. These include the reserved seat quotas where women compete against each other in the 47 counties and the direct nominations. The study found that the reserved seat quotas were compatible with the principle of universal suffrage whereas direct nominations were not. The study used South Africa and Namibia as comparative studies, because of the similar socio-cultural and economic environments as well as the fact they had both achieved high numbers of women representatives in the National Assembly. The comparative study revealed that a vibrant women movement is at the heart of realizing gender parity. The study recommends the use of voluntary party quotas as part of the measures to realise the gender rule. Lastly, the study recommends more involvement and support by political parties in realising article 27(8).
- ItemEffective anti-counterfeiting legal system: a key enabler for growth of Kenya’s pharmaceutical industry(Strathmore University, 2020) Lusi, Wilfred OgotMichael Blakeney describes counterfeits as “goods, manufactured, distributed and sold as copies of goods which have been made without the authority of the owner of the intellectual property.”1 These goods – he notes - are intended to appear so similar to the original, so as to be passed off as genuine items. According to Ben Sihanya counterfeiting is the use of intellectual property rights (IPRs) without authority to produce similar or substantially identical product to legitimate products.2 This often includes use of famous brand-names, on pharmaceutical products (pharma-products) not manufactured by or on behalf of the owner of the trade mark, as well as exact copies which are traded in a form intended to be indistinguishable from the genuine pharma-product. He argues that counterfeiting connotes wilful infringement of IPRs and involves elements of fraud, forgery and deception variously consumers and legitimate traders reposing counterfeiting within realm of criminal law.3
- ItemEnforcement of the Prudential Guideline no.13 (enforcement of banking laws and regulations-CBKPG13) by The Central Bank of Kenya (CBK) a case study of Chase Bank (Now SBM) for the period before and after its being placed under statutory management(Strathmore University, 2020-12) Munge, Samuel KiongeraIn 2006, the Central Bank of Kenya (CBK) issued the Guideline on Enforcement of Banking Laws and Regulations. The Guideline was subsequently replaced in 2013 by the Prudential Guidelines 2013. Included in Prudential Guidelines 2013 was the Enforcement of Banking Laws and Regulations as Prudential Guideline No.13 (CBK/PG/13). It was expected that with the issuance of the Prudential Guidelines 2013, the quality of the enforcement of banking laws and regulations would improve so as to ensure that banks did not fail. However, within a period of less than three years, the 3 banks were placed under statutory management. This study examines the enforcement of the Prudential Guideline No.13 by the CBK through a case study of Chase Bank (CB) by making a comparison between the period before and after its being placed under statutory management. This is achieved through making use of qualitative and quantitative data obtained through interviews, with the aid of questionnaires, and from the CBK’s Bank Supervision Annual Reports from the year 2008 to 2018. The study seeks to establish whether the difference in the two periods, the period before and after CB being placed under statutory management, could be attributed to the enforcement mechanisms employed by the CBK in the enforcement of Prudential Guideline No.13 or whether there are other factors responsible for the difference in the two periods, other than the enforcement mechanisms employed by the CBK in the enforcement of the Prudential Guideline No.13. It thereafter makes recommendations based on its findings.
- ItemEnvironmental regulatory approach of the upstream oil and gas emerging industry in Kenya - an appraisal of the polluter pays principle(Strathmore University, 2020-11) Bett, Victor KiptooThe oil and gas (O&G) sector has been touted as being among the greatest lucrative natural resources in propelling Kenya’s economic growth.1 It is axiomatic that the O&G sector anywhere- whether in developed or developing countries brings with it succinct environmental and socio-economic challenges such as land, water and air pollution. This research is mainly concerned with the impact of upstream O&G operations with respect to the regulatory and conceptual underpinnings of the polluter-pays principle (PPP). This principle aims at preventing or otherwise remedying environmental damage through tort/delict liability leading to internalisation of costs; the costs are transferred from Governments to the actual ‘polluters.’2 Owing to the absence of sufficient sanctions in environmental laws and regulations (both regionally and internationally), it has proven difficult for the implementation of the PPP. This underscores the legal and economic importance and encumbrances associated with the upstream petroleum sector. Through historical, analytical and comparative study, this research examines the PPP’s application in upstream petroleum operations in Nigeria and in the United States of America (USA). The difference between these two countries is in the nature of laws and regulations enacted to protect the environment coupled with the institutional enforcement of these laws. While the legal regime in USA is a bit more proactive, dynamic and goal setting; Nigeria’s has conversely been static and largely prescriptive in approach. This will lead to an appraisal of the legal regulatory frameworks in the application of the PPP in curbing the anthropogenic impacts of O&G pollution and the responsibility of the ‘polluter’ thereto in relation to Kenya’s emerging O&G industry. Ultimately, a predisposition will be drawn for Kenya to properly apply the PPP in its O&G related regulatory frameworks by highlighting lessons learnt from Nigeria and USA in order to forester the attainment of both the social and ecological justice stance.
- ItemExamining prosecutor’s duty to disclose exculpatory evidence and the right to fair trial in Kenya(Strathmore University, 2020) Otulo, MaryThe right of an accused to a fair and just trial is as universal as it is absolute. Save for instances where there is a shift of evidential burden, an accused cannot be compelled to provide evidence in proof of their innocence. The sole bearer of the burden of proof is the prosecution which has to establish the guilt of an accused beyond a shadow of doubt. In fact, the prosecution is strictly obligated to not only facilitate the accused in their defence but to also make disclosures of all evidentiary discoveries irrespective of whether inculpatory or exculpatory. This strict obligation is aimed at remedying the undeniable imbalance of power between the state and the accused and while at face value my seem unfair, is functionally sound. Nonetheless, the application of the right of an accused to a fair trial including access to evidence and potential witnesses must be undertaken within the context of several supervening factors. These include, among others, safety of witnesses, confidentiality of materially proprietary information as well as national security. Of concern to this study is safety of witnesses. Discovery must take into account the possible implications of disclosure of personal information of witnesses. This evaluation must be done on case by case basis. Effectiveness of a criminal trial process is thus determined on the basis of the balance of concerns of the state, victims and the accused. This study evaluates the application of these principles in Kenya. It evaluates the role of the prosecution on disclosure of exculpatory evidence, the right to fair trial by interrogating the interplay between the right of accused to discovery and the need to protect witnesses from potential harm on account of such disclosures. The research proceeds against a background that a majority of criminal cases in Kenya often overvalue the right of an accused to full evidentiary disclosure while increasingly paying little attention to the implications of the same, more so on the safety of witnesses. Domestic practice demonstrates that the only realm where witness protection seems to matter and reigns almost absolute is in sexual offences involving minors. The inconsistencies in the application of the principle of fairness brings to the fore the question as to the existing domestic legal instruments are sufficiently equipped at safeguarding the right of an accused to fair trial while at the same time guaranteeing safety of witnesses. To achieve this, the research conducts a qualitative systematic literature review in examining the role of the prosecutor and looking beyond the domestic practice to identify potential lessons Kenya can learn to streamline its approach. The study looks into the application of this interplay in major global legal platforms including the International Criminal Tribunal for Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Court (ICC). The study is based on Aristotle’s theory of justice specifically distributive justice with an aim of seeking a balance for all parties involved in the criminal justice system. The findings indicate that, in Kenya, as in the international criminal trial platforms, application of evidentiary rules is rather loose, and the determination as to what amounts to witness safety concern or a violation of evidentiary disclosure obligations is purely discretionary. This implies the right of accused to disclosure may be violated without dire consequences to the prosecution while at the same time; the safety of witnesses may be compromised much to the disadvantage of the trial process.
- ItemExamining the efficacy of Kenya’s corporate leniency programme in the context of competition law(Strathmore University, 2020) Shikuku, Felyn NekesaThe Corporate Leniency Programme is a fairly new concept in Kenya. It was introduced in 2017 under section 89A of the Competition Act of Kenya. Cartel activities are becoming very dominant and the Competition Authority of Kenya needed to come up with other methods of curtailing cartel activities. In the leniency programme, once an entity comes to the Authority on a first-come-first-serve basis to confess its involvement in cartel activities, it is either pardoned partially or in full. This allows the Authority to conduct its investigations and punish the other entities involved. The corporate leniency programme concept was borrowed from other jurisdictions such as the UK, USA and South Africa. They have always had this system of granting leniency to entities that are the first to approach and confess their in cartel activities. The study seeks to look at whether the implementation of the leniency programme has been effective since its introduction in 2017. The study also examines the challenges that Kenya faces and might face in the implementation of the programme. From my research (although the programme is still fairly new in Kenya) it is still not yet effective given that amongst other challenges, not many people are aware of its existence yet or the steps to take to apply for leniency. Due to this, implementation of the programme will be a challenge. In Kenya so far there are no reported cases regarding entities that have approached the Competition Authority and have been granted leniency. Kenya should first introduce an awareness programme that would enable all entities and authorities to be on the same page. It will enable everyone to be aware of the programme and put it to good use. This is because the knowledge of the existence of the programme may help reduce cartel activities as entities may suspect that other entities will approach the Competition Authority and come clean on their cartel activities.
- ItemFactors affecting Access to Government Procurement Opportunities by minority groups in Kenya: a focus on eligibility and registration requirements(Strathmore University, 2020) Omariba, Sarah BocherePublic procurement in Kenya is an area that is fast evolving. The coming into force of Kenya’s new constitution in 2010 set the stage for reforms in the procurement sector. This thesis examines the eligibility and registration requirements under Kenya’s preference and reservation program; it interrogates the eligibility and registration processes’ appropriateness and the impact that these processes bear on the realization of the overall objectives of the public procurement (preference and reservation) program. The thesis evaluates the legal and regulatory framework upon which Kenya’s public procurement is anchored. It analyses the constitution and various legal instruments in a bid to understand how, and to what extent, they seek to improve access to public procurement opportunities by women, persons with disability and the youth. The research also considers the preferential procurement systems of the United States of America and that of South Africa. It contrasts the eligibility criteria and the registration requirements under the preference programs in the selected jurisdictions with those obtaining in Kenya’s AGPO program. The thesis further discusses the various complexities in the AGPO eligibility and registration processes that have emerged in the course of conducting this research and explores possible solutions to the identified difficulties. Finally, the thesis offers a summary of the findings of the research and makes possible recommendations and suggestions for improvement.
- ItemThe Impact of cyber crime on e-commerce and regulation in Kenya, South Africa and the United Kingdom(Strathmore University, 2020) Ralarala, SinesiphoAs the use of the internet increases across the world, it becomes imperative to be aware of the ways in which economies can benefit from such use and to be equally aware of the impediments to the maximisation of these benefits. Cybercriminal activity is considered to be one of the impediments to the economic growth promised by e-commerce. This study seeks to examine the impact of cybercrime on e-commerce and regulation, a research direction that has potential to provide insight in respect of the mechanisms meant to safeguard against cybercrime. The study underscores the need to direct more robust efforts towards combating cybercrime in both Kenya and South Africa, an idea that could lead to significant contribution to the growth of African economies (namely Africa). This study is mainly underpinned by the Routine Activity Theory. A descriptive research design is employed. The study relies on reviews of relevant documents which include but are not limited to: legislation, case law, international law instruments. With these materials, an analysis has been carried out to interrogate cybercrime and cybersecurity and the way in which these concepts relate to each other in the context of e-commerce, and the extent to which they impact e-commerce and regulation. The findings reveal that while Africa is ahead of the international landscape in developing legislation, there are efficient mechanisms used internationally that African (mainly in Kenya and South Africa) dispensations can apply to her context. Future studies on this topic could broaden the scope of the study by exploring the impact of cybercriminal activity on Small Medium Enterprises which have also been identified as significant contributors to African economies.
- ItemThe Inadequacies in the legal and regulatory framework on accountability of NGOs in Kenya(Strathmore University, 2020) Amuhaya, Diana BarasaNGOs play a significant role in advancing development in Kenya. Over the years there has been significant growth in the NGO sector. While this is good, trouble begins where there are no adequate accountability measures in place to regulate the sector. The rift between the growth in the NGO sector and the accountability mechanisms has led to an increase in demands for accountability in the sector. This thesis is meant to determine the status of NGO accountability within the country and begins by considering the current state of affairs. It analyses the existing legal and regulatory frameworks on accountability and proceeds to examine their impact in order to determine the adequacy of the provisions. Research was conducted with reliance on the stakeholder theory which advocate for the inclusion of all relevant parties and due consideration of the interests of all parties in all governance structures. It was revealed through the extensive research done that there are a number of inadequacies in the law in relation to accountability. The inadequacies revolve around the lack of clarity as to the what, why and who of accountability measures. It also explores the extent to which key accountability mechanisms such as self-regulation, participation and social auditing are incorporated into existing structures. Upon establishing the inadequacies, a comparison with South Africa follows to determine whether the South African NGO sector has in place a proper accountability framework to guide the operations of NGOs. In conclusion, the research outlines the shortcomings identified providing viable recommendations to curb each problem in efforts to implement holistic accountability measures in the sector.
- ItemInvigorating Kenya’s absorptive capacity for health, safety and environmental technology in the upstream petroleum sector(Strathmore University, 2020) Mutahi, Sussie WHealth, safety and environmental concerns have accompanied oil and gas operations in fields across the world. The rise of digital technology and its successful application across various industries has presented hope for the identification, prevention and mitigation of traditional upstream concerns. While there is rapid development of technological innovations geared towards making oil fields safer, improving efficiency and increasing compliance with environmental regulations, their deployment within the African oil and gas sector is disappointingly low. Financial constraints, lack of awareness of the technology’s existence and apprehension at making the digital leap have already been blamed for the low uptake. This thesis traces the low deployment of HSE technology to legal and institutional gaps, arguing that the already identified factors do in fact flow from lacunas in these two fields. Employing qualitative review on the growing body of literature in relation to oilfield HSE technology, the thesis elevates technology absorption over technology transfer, demonstrating its superiority as a sustainable approach to technology acquisition. The active involvement of the recipient country in determining its upstream HSE risks, identifying technological innovations capable of addressing those needs and developing capacity to assimilate and customize imported technology are found to be particularly helpful to Kenya as both a developing nation and emergent oil producer. By evaluating the key drivers of technology absorption in terms of awareness, availability, affordability and accessibility, the study is able to identify the specific challenges constricting Kenya’s absorptive capacity to HSE technology. The legal and institutional reforms proposed in the study provide emphasis and practical means of invigorating Kenya’s capacity to absorb HSE technology in its upstream sector.
- ItemIslamic banking in Kenya: need for a regulatory framework compliant with principles of Sharia(Strathmore University, 2020) Simiyu, Chrispine MaondoIslamic banking has developed into a key component not just within the financial sector but also a major catalyst for growth of various world economies. The position in Kenya is no different, and the growth in Islamic banking over the last decade and its effect on the economy cannot be understated. As is the position with every sector, growth and development mostly supersede legislation and it is only after a product has been developed that suitable legislation, taking into account its characteristics is promulgated by the legislature, or policy developed by the regulator to not only govern but also ensure sustainability and protect consumers of the product. Islamic is no different, many countries including Kenya have embraced its operations in the last few years. This thesis looks at the growth of Islamic banking in Kenya and conducts an in depth examination of the existing institutional and regulatory frameworks impacting its operations in order to determine their responsiveness. The thesis thereafter details the various deficiencies existing both in the regulatory and institutional frameworks currently existing and as a result thereof makes a case for reform. The study illustrates that the operations of Islamic banking, which is fundamentally different in terms of ideology to that of conventional banking, are within the Kenyan content mostly undertaken through what is termed “a window of banking”. This is because the existing framework was designed with the conventional banking sector in mind. That being the position, for Islamic banks to offer certain financial products compliant with Sharia, they must obtain the consent of the Central Bank of Kenya since these products ordinarily fall within the category of prohibited business under the Banking Act. This consequently subjects them to a different type of treatment thereby disadvantaging their operations. This position is different to that of their competitors, the conventional banking sector for whom the regulatory framework was developed. Islamic banks are similarly subjected to the same institutional framework including supervision and dispute resolution without differentiation premised on its characteristics. The operations of institutions trading in Islamic banking products are mostly therefore variously curtailed, which fact has hindered introduction of other financial products in Kenya. The thesis identifies proposals necessary to align the existing framework to the principles of Sharia, and this is done through a case study of two economies, the UK and Malaysia which have greatly advanced on the field of regulation to ensure that the operations of Islamic banks are aligned to Sharia. The thesis traces the developments in the legislative and institutional frameworks in these two jurisdictions, including the deliberate action through policy and amendment of existing legislation in the case of the UK, and promulgation of specific legislation by Malaysia, and proposes a case for change including the incorporation of Sharia Advisory Boards and Sharia Committees to offer policy guidelines and ensure that institutions transacting in Islamic products do so in compliance with the principles of Sharia. The two institutions similarly offer policy that guides in dispute resolution. The findings of this thesis make it necessary for action to be taken by the legislature to amend the existing laws in a manner that integrates the operations of Islamic banking institutions to the current regulatory framework but in a Sharia compliant manner. The findings shall also guide the regulator in developing policy that takes into consideration the Sharia governance principle hence facilitating the operations of Islamic banks.
- ItemLegal and institutional framework for implementing a hybrid approach to local content in Kenya’s petroleum sector: lessons from Norway(Strathmore University, 2020) Mutai, Oliver KipchumbaKenya has recently discovered Oil and Gas reservoirs creating an imperative to promote Local Content in its oil and gas industry. The concept of Local Content has, as a result, been legislated through the recently enacted Petroleum Act 2019. This study contemplates the existing legal and institutional framework within which the government of Kenya has introduced Local Content requirements in the oil and gas industry in order to tackle various aspects of Local Content. The study scrutinizes key drivers of Local Content within Kenya’s legislative framework and evaluates the determinants that impede successful implementation of Local Content in Kenya’s oil and gas industry. The study also examines the adequacy of the Local Content provisions under the several oil and Gas related legislations especially the petroleum Act to establish whether they meet international best practice requirements. The research uses Norway as a yardstick of an advanced oil and gas legal, institutional and regulatory framework to question the mechanisms in place to measure and monitor implementation. This is done in order to identify factors that explain the achievement of positive Local Content outcomes and gauge whether the practices and structures can be imported into Kenya through a Legal Transplant mechanism. In particular, the study analyses the legal and institutional framework that promotes Local Content in Norway in order to evaluate its applicability in Kenya. The study concludes that Norway’s Local Content requirements in law are well structured and tailored to its needs. This has resulted to positive Local Content outcomes. This study was conducted through analysis of primary and secondary data such as statutes, books, scholarly articles, journals and reports. It hopes to inform the government of Kenya and policy makers on the best approach towards the implementation of a Local Content framework in order for the country and its citizens to capitalize on the benefits of the oil and gas sector.
- ItemMediation: a means of resolution of grievances faced by the Turkana community as a result of upstream oil activities(Strathmore University, 2020) Mathenge, Mark GitongaExploitation of natural resources especially in developing nations leads to a rise of grievances with respect to land and sharing of benefits accruing from the natural resources. This has been seen with the exploration of the oil resource in Turkana where grievances have arisen among the various stakeholders being both levels of the Kenyan government, community and the International investor. The grievances revolve around lack of public participation in exploration activities being carried out by the investors, compulsory acquisition of land resulting in the loss of communal land, access to employment opportunities, revenue sharing, beneficial use of natural resources and lack of transparency due to poor information sharing among others. Access to justice through litigation has been hindered by disadvantages of formal dispute resolution processes which include high costs for instituting a suit, codified complex procedures, low educational levels among members of a community and lack of legal knowledge. These issues can be resolved by the use of mediation. The problem that this thesis seeks to address is lack of timely resolution of grievances and issues that arise and have arisen as a result of upstream oil activities in Kenya. This research has adopted a doctrinal research methodology and shall use an interpretive approach to data, texts and studies within the context of grievances that have arisen and examine the role that mediation can take in resolving such grievances. The research findings have indicated that mediation as a grievance resolution mechanism can play a role in solving grievances arising as a result of the extractive industry, that there are statutes that provide for the use of mediation in Kenya and Internationally and mediation can save time and resources in resolution of grievances by enabling parties such as an IOC or Government to obtain the social license to operate. The research further concludes that the proper use of mediation as one of the ADR mechanisms will resolve any animosity between the parties involved in the extractive industry such as the government, International investors and local communities living in the area where a resource is being extracted and ensure that the people benefit from the resource in form of revenues, jobs and infrastructure such as schools and hospitals.
- ItemMoney laundering in the banking sector: a critical analysis of the enforcement procedures in Kenya(Strathmore University, 2020) Mochere, Shalline NyabokeFinancial crimes in the banking sector have caused the downfall of several banks in Kenya. The success rate of prosecutions and the ability of regulators, as well as law enforcement to curtail financial crime has been under challenge. This is true despite various enacted comprehensive legislation and institutions at their disposal, to curtail financial crimes. This study focuses on money laundering in the banking sector. The objectives of the study are to establish the causes of money laundering in the Kenyan banking sector; the challenges hindering effective enforcement of money laundering laws and regulations in the banking sector; on one hand, and the other to suggest possible measures that would help deter the crime. The study applied qualitative research methods and examination of relevant case laws. The study was able to identify the enforcement measures against money laundering in the banking sector to include a series of correlative measures composed of both preventive and law enforcement procedures. The preventive measures are carried out by the banking institutions to inhibit the infiltration of illicit money into the system. These include; carrying out customer due diligence, reporting any transactions that appear to be suspicious to the FRC and keeping financial transaction records. Law enforcement agents, on the other hand, step in to complement these preventive procedures by using measures such as financial sanctions, investigating predicate offences, confiscating assets acquired through illicit proceeds, and prosecuting banks found to be culpable. The study identified some of the problems facing the enforcement measures against money laundering to include: voluntary and involuntary violations of the AML legislation by banks, corruption, discretionary powers of the different enforcement agents, lack of resources that would help in the investigation and prosecution of the offence, presence of rogue banking officials in the banking sector and the multiplicity of agents in the enforcement process. The study analysed the different laws mandated to fight the offence in Kenya, such as the Proceeds of Crime and Anti-Money Laundering Act, the Anti-Corruption and Economics Crime Act, the Banking Act, and the Central Bank Act. From the examination of the law, the study established that some loopholes in the law that have caused enforcement to be at a minimal pace despite the efforts of the legislators in ensuring that the anti-money laundering laws are in tandem with the international best practices, such as the FATF Recommendations. The study concluded that, Kenya appears to have the proper mechanisms to combat and prevent money laundering, which if observed to would ensure prevention of the offence, nonetheless, the identified challenges bring about problems in the enforcement of the law and its measures. The findings suggest what could be done to improve the enforcement procedures regarding money laundering. These include, banks refraining from superficial compliance of the law, the provision of adequate resources to the enforcement agents, use of alternative sanctions to complement the monetary fines, prosecution of banks found culpable and sealing of the various loopholes in the law that hinder the effective implementation of the law.
- ItemReforming the institutional and legal frameworks of E - commerce in Kenya; consumer rights protection in the digital economy(Strathmore University, 2020) Gitari, Silas MbogoElectronic commerce (E-commerce) is fast growing in Kenya, attributable to improved internet accessibility and increased usage of smart phones. The use of E-commerce has spurred growth and created new opportunities for entrepreneurs, especially the small and medium-sized businesses, which can operate with reduced initial investment and set up costs. Its other benefits to entrepreneurs and consumers include reduced transaction costs, convenience of flow of information and movement of goods, better coordination of activities between manufacturers, suppliers and customers as well as instant access to worldwide markets among others. Despite the foregoing benefits, Kenya is yet to formulate an effective legal and institutional framework that protects consumer rights. Such a regime should afford the consumers transparency, through information disclosure and verification, data privacy and protection, conformity of the goods to the required quality standards and opportunity for redress, in a similar fashion to the consumer rights protection afforded in other traditional forms of commerce. Under the current regime, there is potential for abuse, especially because there is no personal interactions between the consumers and the vendors or an opportunity to inspect the goods or service prior to contracting. The multi-jurisdictional nature of E-commerce also makes it challenging for dispute resolution and consumer redress. Internationally, policies, legislations, regulations and laws have been/ are being enacted to address the various consumer rights concerns in E-commerce. Kenya should thus follow suit. This thesis sets out a conceptual framework and analyses the existing legal and institutional regime in Kenya, relating to consumer rights protection in E-commerce. Through a comparative study with South Africa, it shall assist identify the gaps in the Kenyan regime and make proposals for reform.
- ItemSentiment analysis model for detection of radicalization on twitter(Strathmore University, 2020) Oluoch, Emmanuel Olang'In the recent past, radical acts such as terrorist attacks on highly populated areas have become a major security issue in Kenya hence there is a constant fear of becoming a victim of violent acts perpetrated by individuals who are radicalized before carrying out such harmful acts. Current efforts by the security organs used to detect radicalization involve monitoring public communications channels, relying on information gathered from community policing, random suspect searches, and other intelligence services. However, these approaches have a set of drawbacks first being the manual human intervention needed in decision making even in cases where technology has been used to such as the use of web crawlers. In addition to this, automated text classification techniques rely on feature generation techniques that don't take into account the context of the text and that are also subjected to sparsity when classifying long texts. On the other hand, to grow membership numbers, radical groups use the public platforms offered by social media such as Twitter to disseminate radical ideologies and facilitate the recruitment of those who support such ideologies. In this study, I propose the use of sentiment analysis model to detect online radicalization. The model uses text classification using artificial neural networks to learn word relations within a corpus and generate corresponding features represented as lower-dimensional vectors. By using Continuous Bag of Words (CBOW) encoding and Word2Vec methods, tokens were represented as integers and an embedding of all corpus words was generated i.e trained to be used in one of the layers of the classifier’s neural network. Using the embeddings, labeled data instances, a four-layered recurrent neural network classifier was developed for text classification of radical and non-radical statements. The classifier then uses the pre-trained embeddings to refer corresponding vector values for tokens within the input padded sequence hence classify the new instance and return a rounded float value of 1 or 0 indicating a class. To train the model, I used pre-existing data of tweets collected from Twitter using keyword guides and also tested using data from the Kenyan setting. The model developed had an accuracy score of 95% after varying iterations of training, testing, and validation.