LLB Research Projects (2021)

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http://hdl.handle.net/11071/12255

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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.
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
ANALYSIS OF CONFICT OF INTEREST IN THE CASE OF ADVOCATE- LEGISLATORS IN KENYA
(Strathmore University, 2021-03) CHUI, SALLY NDUTA
There are various laws in Kenya that bar public officers from engaging in activities that promote conflict of interest, mainly the Constitution, the Leadership and Integrity Act and the Public Officer Ethics Act. Despite the sufficient provisions provided by the legal instruments to curb advocate-legislators from pursuing their interests above the public’s interest, such cases are still persisting. This study intends to assess the challenge of conflict of interest in the case of advocate-legislators in Kenya.
An analysis of Kenya’s governing framework on tax incentives: Making a case for the adoption of policies that protect its people and economy
(Strathmore University, 2021) Mburu, Anne Warigia
Tax incentives are tools used by governments to encourage Foreign Direct Investment in various sectors of the economy such as the manufacturing and export sector, the extractives industry, the financial services sector, and the agricultural sector. Incentives may take the form of tax deferrals, exemptions, allowances and credits. When properly governed, these incentives have been deemed to be advantageous in promoting the growth of these sectors. In Kenya however, the regulatory framework is lacking in policies that promote transparency, integrity, accountability, and efficiency which are elements of good governance. This study highlights the shortcomings of this regulatory framework. It makes the assertion that the current regulatory framework creates loopholes for bribery, corruption, and tax avoidance. Due to these shortcomings, the tax incentive regime has had a negative impact on Kenya’s economy and its people as it promotes inequity and social injustice. This dissertation, using South Africa as a comparative study, discusses the regulatory policies that Kenya should adopt to prevent these harmful practices. It recommends a re-design of Kenya’s tax incentives that will repeal those that are ineffective; the establishment of a clear eligibility criterion in awarding of incentives; the adoption of rule-based based incentives that do not allow for discretion by the tax authorities; and the enactment of sunset provisions that would prevent the permanence of these incentives. The study relies on literature review to make the above findings and conclusions.
An analysis of the efficacy of the EAC protocol on peace and security a case for institutional reforms
(Strathmore University, 2021) Munene, Remmy Wanjau
Presence of peace and security are very important for the socio-economic and political development of any region. In a bid to ensure that peace and security are effectively maintained and promoted in the East African region, the EAC Protocol on Peace and Security was established. However, one of its major setbacks is that it contains weak institutions that are incomprehensive in nature. Unfortunately, such an aspect has the potential of hindering its effective implementation. Thus, this study analyses the efficacy of the EAC Protocol in preventing and managing security threats in the East African region from an institutional perspective. It achieves this by discussing the legal and institutional frameworks of the EAC Protocol and then assessing the inadequacies that exist in the latter. This study adopts a doctrinal research methodology that involves discussing relevant legal instruments, as well as books, journal articles, reports and online sources, as it makes its analysis. Further, it conducts a comparative study by assessing the legal and institutional frameworks of the ECOWAS Protocol and also uses two case studies. From the analysis that is made, it is established that the EAC Protocol is largely ineffective because it has an incomprehensive institutional framework that hinders its effective implementation. In a bid to address the foregoing, this study recommends that the EAC Protocol should be amended so as to revamp the features of its institutional framework – through enhancing its established institutional structures, incorporating relevant institutions and roles, and establishing an effective peace and security fund
An analysis of the legal framework governing the regulation of social media and its use as evidence in Kenyan courts
(Strathmore University, 2021-03) OMONDI, ATTOGOH RANDY
Social media is currently the most used medium for communication, storage and transmission of information. Legal, commercial and also criminal activities are carried out on social media. As a result, there is the need for its regulation. This paper focuses on social media regulation in the criminal justice system and on its treatment as evidence. It is the duty of the state to ensure that regulation of social media upholds the guarantee of freedom of expression, access to information while still upholding the right of an accused to a fair trial and respect for the court process. Legislation is key in ensuring that these objectives are met.
Are employees shielded from abuse of their rights in Kenya?
(Strathmore University, 2021) Nathaniel, Trevor Musoke
Sexual harassment is a form of discrimination that is prohibited as it violates the laws of Kenya, one’s right to dignity and to work in an environment free from such a crime. This research sets out to examine the legal framework of Kenya against sexual harassment as well as that of South Africa and the United States of America. The research further explains how the legal framework of South Africa and the United States of America can be used to fill the gaps in the legal framework of Kenya against sexual harassment. This research also shows how and why victims of sexual harassment are reluctant to report such cases. The research also shows that sexual harassment had negative effects on the victim, emotional, psychological and physical trauma.
Assessing false allegations of rape in Kenya
(Strathmore University, 2021) Neema, Achieng’ Otieno
The main objective of this research is to assess Kenya’s laws on rape and the impact of its inadequacies on the rights of accused persons. Lack of clarity in law on certain issues may perpetrate instances where innocent people end up being convicted either on the basis of false claims or unclear offences that should not be illegal, for instance, consensual sex between adolescents. This research intends to uncover through case law, analysis of literature and comparative study, what exactly is missing in law that perpetrates this issue and whether or not this issue is prevalent in Kenya. The main focus of this research will be on false allegation of rape, a topic whose discussion is received with high levels of hostility in many jurisdictions even when it has a vital impact on the justice system. Other forms of injustice perpetrated by the inadequacies in Kenya’s rape laws will equally be discussed and a comparison made to legal instruments and cases in other jurisdictions. It is hoped that this research will inform policy improvement in the future and contribute to the body of knowledge related to the issues commented on
Assessing Trokosi practice and the clash between cultural expression and human rights
(Strathmore University, 2021) Njogu, Tracy Nduta
This article examines the conflict that can sometimes arise between cultural expression and human rights. In engaging cultural violations, this article analyses the kind of discourse facilitated by human rights today by evaluating the approach taken by international human rights and the state when dealing with trokosi practice, a social control mechanism that raises some strong human rights concerns. This begs the question echoed in this article, is there a need to do more when dealing with cultural objectors and do human rights norms require to be reframed in light of cultural diversity
Assessment of the status of the Bible and the Quran under intellectual property law, with emphasis on traditional knowledge and cultural expression
(Strathmore University, 2021) Muriithi, Albert Mwangi
This paper critically examines the intellectual property law surrounding the Scriptures of the Abrahamic faiths: The Bible- consisting of the Old Testament and the New Testament- and the Quran. Despite being revered throughout the world and having some measure of influence on a possible majority of the cultures of the world, these Scriptures are still the product of specific cultures that wrote them down and first held them as their own cultural treasures. That ideally would entitle them to some form of protection under the law of traditional knowledge and cultural expression. Additionally, the texts have been subject time and again to cultural and personal reinterpretations by different persons and groups of persons, often with detrimental consequences to the ideal cohesion of society. This includes but is not limited to manipulation of persons for the personal benefit of others, factionalism, and conflict both within and among religious groups. The purpose of this dissertation is to analyse the legal sphere behind the cultural preservation of the Scriptures in question, to discover the steps that can reasonably be taken to place these Scriptures under at the protection of a cultural authority to preserve the original cultural expression and doctrinal interpretation of the original authors and their primary audience. Hopefully, this may provide a legal dam to protect the original cultural meaning from being permanently lost in translation and transmission.
Bullying in schools: A violation of articles 28 and 53 of the constitution
(Strathmore University, 2021) Mochoge, Evelyn Kerubo
Bullying continues to be a grave act that every student is vulnerable to when they are in school. Its effects are beyond brutal. The Alliance High School case in 2017 that saw a student brutally tortured gave a glimpse of what really happens in our schools. Article 53 of the Constitution of Kenya clearly provides a child’s right to basic education, right to be protected from abuse and from all forms of violence and inhumane treatment. It also provides for a child’s best interest being of paramount importance in any matter concerning a child. The Constitution in Article 28 further provides that every person has a right to have their dignity respected by all. Bullying grossly affects each of these rights in one way or another. Having this in mind, this study is based on three objectives: to evaluate the current situation and analyse the factors that contribute to bullying in secondary schools; to analyse the rights and freedoms infringed or violated by the incidence of bullying in Kenya and to assess the actions which the government has taken to address bullying and whether the government should take further steps to address the incidence of bullying in schools. For comparative purposes, this paper takes a look into South Africa’s legal framework and how it addresses this issue
Burial disputes in Kenya: are alternative forms of dispute resolution an option for resolving burial disputes in Kenya?
(Strathmore University, 2021-03) Kiprop, Karen Jepkemboi
Burial disputes in Kenya have been with us since time immemorial. This study investigated whether alternative forms of dispute resolution are an option for resolving burial disputes in Kenya. In addition, the study also analyses the role of the Constitution of Kenya on burial disputes in Kenya. The scope of the study is burial disputes in Kenya and particular reference is given to cases from the year 2010. The research methodology includes a google survey that was carried out to collect data on the writing of wills in Kenya.
Children’s digital human rights: Another glitch in the code
(Strathmore University, 2021) Kiberu, Winfred Nakkazi
This research study, guided by scholarly articles, institutional reports, and relevant legal instruments, sought to understand what constitute digital human rights and uncover whether children possess these rights. An analysis of doctrinal research and legislation on children’s engagement and interactions with the digital world, revealed that children do possess digital human rights, though some rights require the guidance of their parents or guardians. Based on the findings and recommendations of prominent scholars, institutions and leaders on children’s rights and internet governance, this dissertation proposes that children’s existing offline rights must be applied and enforced to the internet, not just theoretically. Additionally, digital literacy education is required for both children and adults, to enhance their knowledge the rights, duties,and consequences children have on the internet, thus creating more responsible digital citizens.
Climate refugees or climate migrants? Legal protection for climate induced migrants
(Strathmore University, 2021-03) Ikua, Flora Wairimu
“I hear the waves on our island shore, they sound much louder than they did before. A rising swell flecked with foam, threatens the existence of our island home. A strong wind blows in from a distant place, the palm trees bend like never before. Our crops are lost to the rising sea and water covers our humble floor.”1
A close look at legal transplantation: it’s effect on Kenyan customary marriages
(Strathmore University, 2021-03) Mogeni, Amber Shannon
Legal transplantation has had a great effect on the application of law in Kenya. The elevation and superimposition of foreign laws degraded the place of African customary law. The purpose of this study is to analyze and differentiate the effect that transplantation has had on customary marriage laws by examining the transplanted laws that brought conflict and determining the extent to which these laws are efficient in the Kenyan context. The analysis in the study will take a comparative approach in examining the development of marriage systems in Kenya and the development of British marriage systems.
The Codification of Artificial Reproduction.
(Strathmore University, 2021-03) MAWONDO, MWANGOLA WENDY ANABEL
Procreation in Africa is held with high esteem. Infertility therefore results to a great deal of humiliation, ridicule and in a worst-case scenario, physical and or emotional abuse. Surrogacy resultantly, is not a new phenomenon within the African customs. Traditional surrogacy was previously practice by women and men who wanted to salvage their name and that of their home. However, with the advancement in technology came about gestational surrogacy. Kenya is no exception. This study seeks to investigate the practice of surrogacy as it stands in Kenya. It as well intends to carry out a study on the South African practice of surrogacy; being a country where surrogacy seems to have a working regulatory framework; and attempt to compare and give a recommendation of a regulatory framework to govern this practice in Kenya.
Confidentiality and transparency in international arbitration: finding the right balance
(Strathmore University, 2021-01) Ibrahim, Benazir
Confidentiality and Transparency are both cardinal principles of International Arbitration. They are both vital aspects that are required in order to ensure the procedural integrity of the arbitral process is upheld. However, they are seen as opposing principles within the arbitration realm. Confidentiality is seen as one of the main reasons why arbitration is attractive especially to private parties as opposed to litigation. This is due to several reasons such as the need to protect the reputation of businesses, reducing public posturing, protecting sensitive information and several others.
The consent model under the data protection act; Introducing complimentary provisions to enhance protection
(Strathmore University, 2021) Munir, Abdikadir Hussein Mohamed
Individual data is a valuable commodity. The world of today places great importance on the information derived from persons all over the globe. That data is one with the individual and thus should be accorded the proper rights as well as rigid protection required. Privacy plays a major role as data can be used to identify and as well as exploit individuals and therefore further emphasizes the need for legislation that greatly protects the data subject. However, data is still necessary for an increasing number of activities and finding a balance is an ongoing struggle in many parts of the world. The concept of consent has been included in various jurisdictions to place control over data in the data subjects’ hands and it is an effective tool in avoiding exploitation. European data protection laws are often considered the hallmark of robust and efficient safeguards for data. Legislation in Europe, specifically the GDPR, has influenced laws around the globe. In Kenya, the recent Data Protection Act of 2019 has been greatly influenced by the GDPR which already allows it to take advantage of the many years of development that the GDPR underwent. However, the same standards of consent required for European citizens (the main target of the GDPR) has been drafted into the Kenyan DPA. In light of this, the study dissects the requirements of consent under the DPA aiming to highlight the difficulty in solely relying on this consent model. The study finds that the consent model is falling short of properly protecting data subjects in Kenya. This is because exclusively relying on the consent model while failing to take into account the cultural and educational differences between the EU and Kenya greatly affects the effectiveness of the model. To remedy this, the study proposes a look at two solutions being employed in India that serve to compliment the model. Namely, the appointment of learned & certified data intermediaries that bridge the knowledge gap between the data subject and the data collector in addition to the introduction of a fiduciary duty (akin to that imposed on bankers and doctors) into the law
Corporate governance principles: a solution to poor administration in national sports organizations
(Strathmore University, 2021) Edmund, Anya
The purpose of this study is to analyse the incorporation and implementation of corporate governance principles as a viable solution towards curbing of the emerging instances of poor management and administration by national sports organizations in Kenya. This study will concern itself with the principles of good governance encompassed within the commercial module of business, developed to ensure that bodies vested with the authority to govern organizations conduct their duties in the best interests of all the stakeholders while at the same time in pursuit of the organization’s given goals and objectives. Despite this ratification for the need to enshrine the principles of good governance within the operations of not only corporate entities but also “non-profit organizations” such as national sports organizations, the implementation of these principles still remains blatantly absent. Hence this study will explore the theories behind corporate governance relevant to sports organizations and will discuss possible methods of policy implementation that will ensure the observance of these principles. Additionally, this study will make a comparison with the approach taken by other countries in facilitating effective sports governance and will moreover, propose a realistic structure derived from the corporate module of the state of Taiwan.
A critical analysis of the right to counsel as a means to a fair trial for the unrepresented accused in Kenya
(Strathmore University, 2021-03) Rukwaro, Ruth Wangui
Right to counsel is a fundamental right in ensuring a fair trial for the accused. In the adversarial legal system, an unrepresented accused is already at a disadvantage in conducting his case as compared to the prosecutor in view of the principle of equality of arms. Pursuant to Article 48, 50(2) (g) and (h), Kenya has an obligation to realise the right to counsel. Police, judges, lawyers, paralegals, and the state are all essential in the criminal justice system to ensure this right. The study investigates how the state approaches the right to counsel for the unrepresented accused by comparing the situation in Kenya to the United Kingdom and South Africa to derive lessons from them.

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