Strathmore Law School (SLS)

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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 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.
Adequacy and enforceability of the Kenyan environmental law with regard to polythene pollution in Kenya.
(Strathmore University, 2016) Ngugi, Ian Njathi
Kenya has for a long time been affected with issues of polythene pollution which has gotten out of hand over the years with the filling up of gazetted dumpsites in Nairobi. This has brought about serious health risks through the continued dumping of hazardous material such as polythene in un-gazetted areas.The purpose of this study was to investigate the adequacy of the Kenyan legal framework on the environment and more particularly, polythene pollution in Kenya. The study also sought to show the enforceability of the already existing legal framework on how the various laws are helping to curb polythene pollution in Kenya.The study is intended to show the connection between the adequacy of the legal framework and enforceability of the law in reducing and ultimately ending polythene pollution. The study examines various jurisdictions that have dealt with the issue as a basis of determining the adequacy of Kenya 's legal framework.
The Adequacy of the legal framework in guaranteeing the equitable distribution of profit oil to the local community in the oil and gas sector in Turkana, Kenya
(Strathmore University, 2022) Waigwa, Faith Waguthi
The discovery of minerals and petroleum in a country is often a cause for celebration to its citizens. This is rightly so as it is expected that trading in these resources will result in growth of an economy and improve livelihoods for the nation at large. Kenya’s oil and gas sector is a relatively new sector, but the journey towards ensuring equity is well on course. The interests of communities in profit oil are a murky area, considering that the Constitution of Kenya, 2010 declares all minerals and mineral oils to be public and not community land ousting any individual or community ownership. The Constitution and statutes enacted thereunder guarantee local communities rights to a share of profit oil. They also cater for other related interests of the local communities such as the right to compensation with respect to upstream petroleum activities. This study employs a review of the law and relevant secondary materials to analyse the share and interests of local communities in the oil and gas sector, whether local communities have a stake in profit oil, and to what extent. The study proceeds on the understanding that the interests of local communities in the petroleum activities are realized through sharing of profits and the relevant aspects of compensation accruing to the community in the process, hence substantial reference is also made to compensation aspects. While profit sharing and compensation are distinct concepts, they constitute the local community’ interests in the oil and gas activities. Additionally, a comparative analysis with Nigeria, Papua New Guinea, Venezuela and Norway is carried outThe study identifies gaps in the Kenya’s compensation mechanisms in compulsory acquisition and argues that ultimately, communities have a stake in profit oil that needs to be identified and upheld.
The Administrative factors hindering the efficient accountability of public officers in fulfilling public functions
(Strathmore University, 2017-01) Ahere, James Ochong
This dissertation focuses on the regulation and holding to account of public officers with regard to fulfilling public functions, which can be understood as the responsibility taken up by the state to provide public services to its citizens. There has been an exponential increase in cases reported of public officers mismanaging and embezzling public funds in Kenya, leading to inefficient provision of services to the public and a reduction in the socio economic welfare of the citizens due to mismanagement of tax payer’s money. This research paper outlines the administrative measures stipulated by law with respect to policies made and the institutions established in regulating, monitoring, investigating and prosecuting actors. Moreover, the dissertation seeks to assert the real issues that have inhibited the efficient regulation and holding to account of public officers by providing a historical account of the role of regulatory bodies mandated with the role of investigating corrupt public officers in public office. The research paper further highlights the National Youth Service corruption scandal as its case study, providing the facts of the case and thereafter providing new reforms/approaches that can be implemented in the ongoing probing of the public officers accused of the corruption offences. Inherently, this research paper seeks to outline the statutory loopholes in the law with respect to regulation of public officers. It also outlines general institutional measures, internal and external, necessary to maintain efficiently provided public functions guided by the principles set out in the constitution with respect to leadership, integrity and the rule of law
Administrative justice in taxation: an evaluation of KRA’s administrative practices
(Strathmore University, 2022) Gathura, Winnie Wanjiku
Administrative justice is a fundamental requirement of a society based on the rule of law. It indicates a commitment to the principle that the government, and its administration, must act within the scope of legal authority. It also signifies the right to seek legal redress whenever rights, liberties or interests are negatively affected when the public administration exercises its duties in an unlawful or inappropriate manner. Given the power and informational advantages that the state possesses relative to the citizen, it is vital that administrative procedure and dispute codes afford the public significant procedural rights and permit decisions and appeals to be dealt with efficiently, fairly and swiftly. A review of several reported cases reveals that even with the developments in Kenya’s tax administration regime, taxpayers are far from having their matters determined in a fair, straightforward, affordable, and efficient manner. This study adopted a doctrinal legal research approach, which included an in-depth review of administrative law, its development process, and legal reasoning. It critically examined Kenya's tax administration system by studying various provisions of the relevant laws to fully grasp what procedural requirements Kenyan law mandates. This research investigated two questions: a) Are administrative law principles relevant in tax administration? and b) Do KRA administrative practices adhere to the principles of administrative law? To answer these questions, this research reviewed and critically analysed Kenya’s tax administration regime from an administrative law perspective. To investigate the extent to which KRA adheres to the principles of administrative law, this study analyzed six cases against KRA and observed that the Courts, have on several occasions found fault in KRA’s decision-making process. The study concludes that, notwithstanding administrative law developments, the KRA's decision making process falls short of administrative law principles’ standards. The study highlights the plight of taxpayers and the need to balance the State’s and taxpayers’ competing interests and ensuring administrative justice. On this basis, it is desired that this research influences Kenya’s tax policy and steer it in a direction to ensure that these interests are balanced in practice.
ADR, access to justice and development in Kenya
(Kariuki Muigua and Company, 2014-05) Kariuki, Muigua; Kariuki, Francis
Development is not feasible in a conflict situation. Conflicts and disputes must be managed effectively and expeditiously for development to take place. Formal mechanisms for conflict management have not always been effective in managing conflicts. Mechanisms such as courts have been inaccessible by the poor owing to technicalities, complex procedures, high costs and delays. There has been a shift towards informal mechanisms for conflict management, including alternative dispute resolution (ADR) and traditional dispute resolution mechanisms (TDRM). ADR and TDRM processes contribute to enhanced access to justice by all, and in particular among the poor people. Enhanced access to justice strengthens the Rule of Law. Existing literature in development studies has shown a correlation between the Rule of Law and levels of development. ADR and TDRMs are thus quintessential from a developmental perspective. The Kenyan legal framework has recognized the role of ADR and TDRM in development. Existing laws require the use of ADR and TDRM in resolving a myriad of disputes such as those relating to land, family matters, commercial and political questions. In this paper the authors argue that the recognition of ADR and TDRMs within the legal framework in Kenya, will contribute towards economic, social, cultural and political development. This recognition expands the array of mechanisms that parties to a dispute can employ in ventilating their disputes. Enhanced access to justice will also contribute to respect for the rule of law, which is an essential precondition to development. ADR is also becoming a lucrative economic venture with many professionals now working as full-time or part-time ADR practitioners. In addition, a number of organisations have established ADR centres. Some of these centres are expected to be major attractions for foreign investments in the country as they will handle international arbitrations. ADR is also being taught in schools and in universities, and is thus expected to contribute to social development.
Advancing transparent disclosure in petroleum governance: a comparative study of the transparency provisions in the model petroleum agreements in Kenya and Nigeria
(Strathmore University, 2022) Mkalama, Lynda Mwisiwa
Natural resources, especially oil and gas, play a pivotal role toward the socio-economic development of a country. However, despite makings steps towards maximizing the full socio-economic benefits of oil production activities, several countries are still marred with mismanagement of the revenues that emanate from the oil and gas sector. Scholars have argued that one of the enablers of mismanagement of public resources is the aspect of governmental secrecy and lack of transparent and accessible information on petroleum contracts entered between governments and the oil companies. The deeply entrenched culture of secrecy has thus led to poor resource governance in several African countries, with Nigeria being a prime example. Though Nigeria has been in oil and gas extraction for a longer period of time in comparison to Kenya, it has not however achieved good resource good governance due to non-disclosure of the contracts. Concerns are already emerging that Kenya, though still in its infancy extraction stage, is closely following the footsteps of Nigeria in terms of transparent disclosure of fiscal terms, which may ultimately hamper its quest for good resource governance. This thesis examines gaps in Kenya’s petroleum contract which may hinder transparent disclosure of fiscal and other important sustainability information by oil and gas companies. It thus argues that if not comprehensively addressed, lack of transparent disclosure of fiscal terms in Kenya may hamper good resource governance just as it is the case in Nigeria.
Affirmative action laws and policies: Interrogating their effectiveness in the promotion of substantive gender-based equality in Kenya
(Strathmore University, 2021) Manani, Stacie Jessica Ongecha
The aim of this research is to determine why gender-based affirmative action laws and policies seem not to yield desirable results in the public sector and to suggest necessary legal reforms. This is to be done by actualising the following objectives; to investigate the impact of patriarchy on gender equality in the public sector in Kenya; to identify and discuss the legal, policy and institutional framework on gender-based affirmative action in Kenya and its response to gender disparities in Kenya’s public sector; to examine international best practices with regard to gender equality and the level of compliance with the same in Rwanda and to determine whether it offers any lessons to Kenya. This study focuses primarily on elective and appointive positions and is conducted using doctrinal research. This approach involves the review of relevant primary and secondary sources including legislation, case law, books, journals, newspaper and other articles as well as online internet sources. During this research, it has been observed that Kenya has rich and all-inclusive legal, institutional and policy frameworks on gender equality and equity. The unsatisfactory status quo highlighted above is attributable to the patriarchal approaches to constitutional interpretation, legislative processes and decision-making, which have proven to be a resistant barrier to achieving gender equality in the public sphere. Further, the manifest tension between the promotion of substantive equality vis-à-vis the promotion of formal equality has contributed to the gender disparities in the public sector as there seems to be a general endorsement of formal equality stemming from the lack of clarity in the frameworks.For there to be observable change, it is recommended that the relevant frameworks currently in place ought to be modified to be gender-specific, expansive (taking into account the intersectional nature of discrimination) and highly specialised. Further, priority ought to be given to measures that promote equality of results, while those that promote equality of opportunity ought to take a supplementary role

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