Strathmore Law School (SLS)

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A Critical analysis of Kenya’s regulatory readiness for nuclear energy as an alternative source of energy
(Strathmore University, 2019) Sinyo, E. M.
The Government of Kenya particularly the Ministry of Energy has provided for the generation of electricity using Nuclear Energy in the Draft National Energy Policy of 2014 and the International Atomic Energy Agency has approved Kenya’s Nuclear Energy Power Program application. This is proof that the process of actualising nuclear energy as an alternative source of power in Kenya is already underway. The process of implementing a nuclear energy power program in an entrant country is a lengthy, expensive and sensitive process that should involve all the stakeholders of the country particularly the citizens. Currently, there is no evidence that the public was initially involved in the decision to pursue nuclear energy as a viable source of energy in the country. Even so, the benefits of implementing a nuclear energy power program must outweigh the corresponding risks such that there is a major improvement in the economy of the country towards a sustainable future. The purpose of this research therefore, is to analyse the current regulatory framework on Energy in Kenya with the purpose of determining whether the laws can adequately regulate the utilisation of nuclear energy in order to facilitate the goals of the government towards a reliable and sustainable source of power in the country. This research has been conducted with reference to the available primary sources of information as all the requisite primary information is accessible in books, international instruments, legal conference papers and published journals. In order to accurately gauge the position of Kenya as an entrant country in the region of Africa, a comparative analysis has been undertaken with South Africa which is advanced in the production of nuclear energy power.
A Critique of the legal framework on whistleblower protection for employees in Kenya
(Strathmore University, 2024) Gikonyo, V. W.
This dissertation is a critique of the Legal Framework on whistleblower protection in Kenya. This study is out to find out the effectiveness of the Bribery Act and section 65 of the Anti- Corruption and Economic Act in so far as it protects employee whistleblowers. Additionally, this study is also out to assess the strengths and weaknesses of the Whistleblower Protection Bill of 2023. Lastly, the study compares the UK laws on whistleblowing to that of Kenya and seeks to find out the lessons that could be learnt from the UK laws on whistleblowing. In conducting the study, primary and secondary sources of data collection are used in answering the questions. After analysing the Bribery Act and section 65 of the Anti-Corruption and Economic Crimes Act it is discovered that the laws indeed are sector specific and do not sufficiently protect employee whistleblowers. The Whistleblower Protection Bill would remedy the situation since if enacted there would be a law specifically on whistleblowing and that specifically provides for protection of employees, but the Bill is still yet to be enacted. There are also lessons to be drawn from the UK since their Employment Rights Act protects employee whistleblowers aside from having the Public Interest Disclosure Act which protects whistleblowers. The study proposes that legislators should pass the Whistleblower Bill into law to protect employees.
A Litany for survival: a proposal to amend Kenya’s Penal Code to decriminalise theft of food for survival
(Strathmore University, 2024) Waris, N.
In the tapestry of human civilisation, the urgency of survival has woven itself as a fundamental thread, shaping the contours of law, morality, and societal norms. This imperative gains particular urgency in the realm of criminal law, where the stakes involve actions that endanger life and well-being. Within this context emerges the predicament of food theft for survival – a poignant reflection of the intersection between legal frameworks, moral imperatives, and human desperation. In light of the pervasive food insecurity and poverty in Kenya, this study aims to examine whether Section 269 of the Penal Code of Kenya (Cap 63) should be amended to decriminalise theft of food in instances where survival prevails. This will be accomplished firstly against the backdrop of contrasting moralities between African and Western societies. Here, the study seeks to unravel the communal ethos prevalent in traditional African reasoning, where certain communities historically exhibited leniency towards theft driven by hunger, contrasting this perspective with the individualistic criminalisation of theft inherent in the Western legal framework. This study posits that dissenters of this premise can find further justification for the decriminalisation of food theft within the underlying principles of criminal law defences, such as self-defence and necessity. It contends that these principles, commonly invoked to justify criminal defences rooted in the imperative of survival, can extend to the decriminalisation of food theft, highlighting the feasibility of integrating this amendment within the framework of criminal law.
A Study of mass surveillance of communications through device management systems and the right to privacy
(Strathmore University, 2024) Kigo, M. G.
The tension between mass surveillance and the right to privacy has become increasingly complex as communication technologies extend to every aspect of daily human life. This research paper investigates the implications of mass surveillance of communications through device management systems and the individual's right to privacy. An interdisciplinary approach incorporating legal, ethical, technological and social dimensions is employed to provide a holistic understanding of the phenomenon. It examines the mechanism by which the device management systems facilitate mass surveillance focusing on their capabilities, limitations and potential abuses. The paper also delves into the legal framework governing mass surveillance practices and their alignment and tensions between national security interests, individual privacy and law enforcement objectives. Ethical considerations surrounding mass surveillance are examined, seeking to uncover the moral dilemmas inherent in communication surveillance practices. The research also delves into the societal impacts of mass surveillance including its effects on social cohesion and the exercise of fundamental rights. It investigates the public perception of surveillance practices and the trade-offs between privacy and of national and government interests. This paper contributes to the scholarly dialogue on mass surveillance and individual privacy by offering insights into the implications of surveillance activities through device management systems. It aims to inform policymakers and the general public about the complexities inherent in mass surveillance practices and the imperative of safeguarding the right to privacy in the digital age.
A Study on the actualization of the right to education through a social and economic rights lens
(Strathmore University, 2024) Nafula, T. A.
Social economic rights and freedoms are essential for the life and survival of all human beings as they seek to ensure that the basic dignity of the human being is respected and ensured. This is made possible by their nature as they focus on the living conditions of people; right to housing, right to work, right to health, right to education and so many other forms through which they come as enshrined in Article 23- 25 of the Universal Declaration of Human Rights. States have an obligation to ensure that these rights are actualized in their countries, and to enforce measures which would bring people closer to an enjoyment of their social economic rights and freedoms. One of the notable ways through which this can be achieved is through empowerment. This comes in many forms, but this research will focus on how education can empower people to attain the capabilities required to live a full and flourishing life through Armatya Sen’s capability theory. Education has been termed as an upstream right through which other rights can be acquired. This research seeks to ascertain the influence of education on the future realization of socioeconomic rights and thereafter assess whether or not Uganda has actualized the right to education. The area of reference would be Uganda, which promulgated the Universal Primary Education program, to ensure free education for children, since 1997. This makes it feasible to assess the effect of education on the socioeconomic status of the citizens of Uganda since 1997, in light of the reality that it is a progressive right, whose benefits cannot be assessed with immediate effect. This research will use qualitative research, to explore the actualization of socioeconomic rights in Uganda as a result of Uganda’s investment in education.
A Study on the efficacy of anti-counterfeit laws in curbing online counterfeiting in Kenya: is this the panacea?
(Strathmore University, 2024) Munene, E. C.
The growth of the internet and e-commerce since the turn of the millennium has led to widespread benefits to economies world-wide. However, this growth has also coincided with the emergence of new crime types such as online counterfeiting. This study therefore takes a deep dive into the efficacy of anti-counterfeiting laws in Kenya and suggesting possible solutions to curb this illicit trade. The study shall primarily focus on online counterfeiting and the laws addressing this specific crime in Kenya. The research methodology involves an in-depth analysis of various sources, including the World Health Organization’s estimates on counterfeit medicines, the International Peace Institute’s estimates on counterfeit trading in Kenya, and a study conducted by the Anti-Counterfeit Authority on online counterfeiting levels in Kenya. Major findings reveal that online counterfeit goods account for a significant portion of all goods sold online which has led to Kenya losing significant tax revenue, compromised consumer safety and the exploitation of intellectual property rights. The study concludes that the growth of e-commerce has exacerbated the counterfeiting problem, with counterfeiters exploiting social media platforms and online markets. Law enforcement faces significant challenges, including anonymity issues, jurisdictional challenges, inadequate training, and low reporting of these cybercrimes. To curb this problem, I recommend the revamp of existing laws to include provisions to cater to online counterfeiting which is currently absent in the Anti-Counterfeiting Act. Moreover, my study proposes the use of Blockchain technology and the adoption of new strategies such as Situational Crime Prevention by the Anti-Counterfeit Authority to effectively curb this problem.
Abuse of diplomatic immunity in bilateral relations: a critique on the vienna convention on diplomatic relations, 1961
(Strathmore University, 2016) Kolo, Nimmasoko
This study examines the abuse of diplomatic immunity and privileges. This study further gives an analysis ofthe Vienna Convention on Diplomatic Relations which has been ratified by many states. The Convention is established to govern the diplomatic relations. The study establishes the fact that diplomacy has been in existence before the adoption of the VCDR. The study notes the fact that the provisions in the VCDR has contributed to the abuse of diplomatic immunity and privileges. The hierarchy of norms is also brought into the lime light as to whether the immunity granted to diplomatic agent should be giving paramount interest to human rights of the citizens of the host state.The study notes that there have been challenges in implementing the VCDR due to the contradiction in the provisions in the Convention. The underlying theory which is the theory of functional necessity is stipulated in the preamble as the fundamental basis ofthe immunity granted to diplomats, it has been noted in this study that this theory has not been upheld in practice. In establishing the weaknesses attributed to the Convention as well as establishing the fact that an abuse has happened, the theory of functional necessity was used as a guide. Various case studies were used to highlight the abuse ofdiplomatic immunity as well as the challenges in implementing the Vienna convention. The paper further notes the fact that the persona non grata and the waver of immunity provided in the VCDR do not serve as a form of deterrence to other abuses, hence a need to include other stringent provisions to deter the abuse of diplomatic immunity.
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.
Access to employment for persons with disabilities: the case of Kenya.
(Strathmore University, 2017) Njoroge, Esther Nyaguthii
This study sought to investigate access to employment by PWDs in Kenya, the law surrounding the issue of disability, the factors impeding the application of these set out laws and to come up with recommendations on the ways in which the state of persons with disabilities (PWDs) can be improved within the employment sector.The study was done through assessing the adequacy of the current legal framework in curbing discrimination faced by PWDs in accessing employment. It established that the laws in place create a sound legislative framework, that at its current state should, to a larger extent, protect the right of PWDs to accessing employment save for various loopholes in the law. Through brief case studies of good anti-discrimination practices and laws, the study was able to bring out the prominent features of practices that allow PWDs to effectively access employment. Reasonable accommodation of PWDs was seen as a major factor that would contribute to allowing PWDs to confidently access employment.In order for PWDs to access and secure employment in Kenya, the study recommends that the barriers hindering the application of the laws concerning disability be dealt with. It also proposed that the government should take initiatives to obligate employers to make reasonable accommodation. In the end, the study makes the findings that the laws pertaining to PWDs are sound, save for some loopholes, but a more pragmatic way of approaching the subject should be considered. Through case studies of other legal frameworks that are purportedly better in other jurisdictions, the study was able to bring out the prominent features that are necessary for a sound system of laws that would sufficiently ensure PWDs the right to employment without hindrances. The study then recommends various changes aimed at curbing this discrimination.
Access to healthcare among marginalized Kenyan communities: A Case study of the People of Turkana County, Republic of Kenya
(Strathmore University, 2017-01) Nyambura, Mburu Ivy
Over time during the ensuing years of the late 20th century, Kenyans came to view the Kenya Constitution of 1963, under which Kenya gained independence from British rule in December 1963, as inadequate and in need of Reform. The Kenya Constitution 2010 is the result of this general dissatisfaction with the original 1963 Constitution. The new Kenya Constitution was promulgated on the 27th August 2010 after a long period of review, discussion and drafting that lasted close to 20 years. The new Constitution is said to be a great improvement towards development of a developing country in Kenya, since it was able to identify and address critical issues at the hearts of the people and provided practical ways of reforming governance at the subnational level of the country. This 2010 Kenya Constitution provides for the principle of sovereignty of the people and creates 47 counties, each with their own subnational governments1 as outlined in the First Schedule. The Country was divided into 47 counties, 2 each headed by a county government, thereby abolishing the provincial, district and local government administrations that had been in force since independence
Access to information and rights of third parties to contracts in the Kenyan extractives-mining industry
(Strathmore University, 2017) Wangui, Lucia Tatenda
The resource curse paradox is quite queer indeed however it can be explained simply. On one hand, there needs to be significant foreign investment and technology to exploit natural resources. On the other, state revenues from the sale of these resources on international markets are substantively less as compared to revenues from other productive activities. Both these circumstances, combined with little public monitoring, mean that multinational corporations, producing country governments, and specific interest groups use these contracts for their sole benefit to the detriment of the majority.To counter that, transparency initiatives in the extractive industry have become a norm rather than the exception to the norm. Various processes have been established internationally to monitor the disclosure of these contracts. These establishments have also been used to identify how the revenue from the extractive industry is being utilised. This study sought to investigate methods which can be used in the endeavour for more disclosure on contracts.It sought to determine who the beneficiaries of such projects are and what contractual measures can be taken to identify and protect these third-party beneficiaries. It seeks to find out the safeguards to the environment and human health thus showing the necessity for companies to disclose their environmental costs and plans. To ensure accountability, this paper proposes certain checks and balances that should be implemented by governments throughout different stages in the mining projects thus maximising on the potential revenues from the project
Access to information in Kenya: statutory enactment of Constitutional rights
(Strathmore University, 2017-01) Kimalel, Linda Jemtai
Access to information in Kenya was not adequately catered for in law. It has taken too long to enact an access to information law thus leaving room for violation of the right of access to information. This study seeks to establish the need for statutory enactment of Access to Information Law. The study was done through literature review on access to information and adopted a qualitative analysis. Thus establishing the scope of the right as being public and private bodies dealing with records of any form. A comparative analysis with South Africa brought out the grounds of refusal that are permissible without violating the right of access to information and role of a Commission as an oversight mechanism. For the purpose of upholding and protecting the right of access to information in Kenya, the study recommends that legislators must formulate laws that can be easily implemented. It also proposes that instruments such as political will and open government partnership commitment must be incorporated during enactment as well as implementation. In the end, the study concludes that enactment is necessary and will indeed uphold the right of access to information as guaranteed in Article 35 of the Constitution of Kenya 2010.
Access to justice: epistolary jurisdiction as a means of improving access to justice in Kenya
(Strathmore University, 2016) Paranta, Edward Ritei
Access to justice is cardinal to the success and well-being of any democracy. To this effect various legislative mechanisms and avenues have been instituted in different democracies to ease enjoyment of this cardinal right especially to the poor and the under-privileged. Epistolary jurisdiction is one of such mechanisms whose roper exploitation and institutionalization would go a long way in improving access to justice. Access to justice in Kenya has faced a myriad of challenges. Resulting thereof, the poor have fallen victim to systemic barriers due to the unavailability of formal mechanisms through which they can pursue their claims. This dissertation explores the viability of epistolary jurisdiction as a means of improving access to justice in Kenya. Additionally, it seeks to explore the sufficiency of the existing legislative framework with regard to the exercise of epistolary jurisdiction. Moreover, it strives to draw some valuable lessons from other jurisdictions that have already institutionalized the practice of this jurisdiction. This research has been carried out with reference to the available secondary documents .Most of the requisite information could be accessed either through books, papers, and website or published journals.
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.
Accommodation and Assimilation in Kenya’s Pluralist Context: Contrasting the Normative Qualifications Supplied to Islamic Law and African Customary Law’s ‘Defects’ in Personal Law Matters
(Strathmore University, 2021-03) Khalil, Badbess
It is said that one of the enduring legacies of colonialism in Africa is the fact of legal pluralism. This fact has arisen from the maintenance of received European laws after colonialism and of the pre-colonial laws that continued subsisting even after colonialism. Kenya, one such state, has had similar experiences. In this regard, two subsisting pre- colonial systems are of note: Islamic law and African customary law. In this study, it is argued that in their application to matters of personal law, African customary law is differentiated from Islamic law by the greater level of normative qualifications applied to it.
Addressing ethnic based politics in Kenya: a socio-legal perspective
(Strathmore University, 2017) Njoroge, Eunice Wanjiku
The political pillar of Kenya’s Vision 2030 seeks to achieve the development a political system that is issue-based, people-centered, result-oriented and accountable to the public. Despite these aspirations, politics in Kenya falls short of the ideals and best practices of a democratic political system. The political arena in Kenya is characterised by ethnic based politics, that is, the formation and sustenance of ethnically motivated and ethnically based political parties and coalitions. This research assesses whether the current constitutional efforts and those of the National Cohesion and Integration Commission of Kenya (NCIC) are effective tools to mitigate ethnic-based politics in Kenya. More specifically, the study assesses the role of ethnicity in politics and the degree to which the Constitution of Kenya (2010) and the NCIC have been effective in mitigating this. Finally, the study identifies ways in which these two might be strengthened and recommends what other additional legal solutions might be adopted in order to deal with ethnic-based politics.The study was conducted through literature review on polarization of ethnicity and the formation of ethnic based political parties and coalitions, and adopted a qualitative analysis. It established that though the law may help to mitigate the ethnicity component of politics in Kenya, the long term goal of the NCIC of promoting and strengthening national social cohesion is the only truly effective remedy for the eradication of ethnic based politics in Kenya. Through a comparative analysis with other jurisdictions the study was able to identify practical measures which can be put in place to promote a national identity and decrease the saliency of ethnic identities in Kenyan politics.In order to mitigate ethnic based politics in Kenya, the study recommends the strengthening of the NCIC. It also recommends the facilitation of conditions for full social, economic and political participation of all people irrespective of their ethnic identity. Furthermore, it proposes the strengthening of checks on political parties and the promotion of policy-oriented coalitions. In the end, the study makes the conclusion that the current legal framework is still wanting and that the sustained saliency of ethnicity in politics requires further reform of existing frameworks.
Addressing gender inequality: a critique of the ground for annulment under Section 73(1)(f) of the Marriage Act 2014 of Kenya
(Strathmore University, 2024) Juma, V. J.
In Kenya, laws that regulate marriage and divorce stem primarily from the Marriage Act 2014. The Marriage (Matrimonial Proceedings) Rules 2020 serve as subsidiary legislation, documenting procedural requirements. The specific area of concern is the ground of annulment of marriage under Section 73(1) (f) of the Marriage 2014. The gap in this provision becomes apparent as it allows a party to a marriage to annul the marriage if, at the time of the union and without the husband’s knowledge, the wife was pregnant and he is not responsible for the pregnancy. However, it lacks a provision for a scenario where the husband fathers a child with another woman at the time of marriage without his wife’s knowledge. The paper is quick to recognize the need for such provision as section 73(1)(f) of the Marriage Act however, the absence of an equivalent provision for wives presents as discriminatory, violating the constitutional principle of equality and non-discrimination under Article 27of the Constitution of Kenya2010. The flawed structure of Section 73(1) (f) of the Marriage Act perpetuates a system of gender-based discrimination as well as limits the legal recourse for women within the marriage institution. This paper aims to critique the constitutionality of the ground for annulment under Section 73(1) (f) of the Marriage Act and thereafter propose potential reforms to align it with constitutional principles of equality and non- discrimination as well as promote equal treatment for both genders within the legal system in Kenya.
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.

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