LLM Theses and Dissertations (2019)

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Artist resale right: an interpretation of new media art as original works of art in Kenya
(Strathmore University, 2019) Ngurumi, Andrew Waithumbi
Artist resale right is intended to ensure that visual artists whose works are resold in the secondary market of art share in the increased value of their artwork. Visual artists share in the increased value of their work through receiving artist resale royalties. The resale royalties are a proportion of the price of the works of art in the secondary market. In order to ensure that visual artists in Kenya receive artist resale royalties, the Copyright (Amendment) Bill, 2017 (“the Bill”) set out the provisions for grant of artist resale right. The Bill, provides that artworks eligible for artist resale right are original works of art. A nonexhaustive list on what original works of arts entail was initially set out but following further amendments this list was excluded. The Bill now provides that original works of art created by the artist or under their authority are eligible for artist resale right. At the same time the Bill provides that works of art produced in identical copies by artists or under their authority are not eligible for artist resale right. This implies that original works of art are defined as the one and only physical embodiment, as used traditionally in artist resale right legal frameworks. Thus visual artists creating identical copies of work of art are not able to receive royalties. This research investigates whether the lack of a definition of “original works of art” in the artist resale right Bill will deny resale royalties to artists making new media art. A basis for exclusion of their works is that they exist in multiple identical copies. In so doing the finding of this project reveals that “original works of art” ought to be defined broadly as works created by the artist himself or under his authority within artist resale right legislation. A redefinition of “original works of art” will help ensure visual artists creating new media art will receive resale royalties.
The Declining efficacy of Paris and London clubs: making the African case for a hybrid framework for sovereign debt restructuring
(Strathmore University, 2019) Areri, Doreen Belinda
For a variety of reasons, such as enhancing economic growth, nations incur debts. For historical reasons, this is particularly true for African countries. Unfortunately, owing to a myriad of reasons like global financial crises, currency volatility and shortfall in revenue, at times these countries fall into difficulties in servicing their debts. During such times, the regime of insolvency provides a scenario where such debt may be rescheduled, or restructured, by altering the terms and periods of payment. Such debt restructuring mechanisms exist. The objective of the study was to investigate whether the existing mechanisms for sovereign debt restructuring are efficient. It also sought to evaluate whether debt held by African countries is distinguishable from that of other countries, and if so, whether the existing mechanisms for debt restructuring ought to take this into account when restructuring debt. The research was centered on desk research with sources of information including books, as well as journal articles, reports and working papers, documents issued by the government of African countries and international financial institutions such as the World Bank and the IMF. The study explored the questions raised through two conceptual frameworks: the creditor bargain theory, and the value based theory. It undertook an examination of the debt situation in Africa by examining the historical context within which African economies evolved, as well as current continent specific concerns, and found that indeed, the debt held by African countries, as well as the overall debt situation, is distinguishable from that of other regions. It also considered the current debt restructuring mechanisms and concluded that they are indeed inefficient for debt restructuring, and even more so, in restructuring debt held by African countries. While appreciating that there are reforms underway to correct the insufficiencies of the current mechanisms, the study concluded that these reforms were fundamentally inefficient for their purpose. It considered the creation of a framework that incorporates existing and proposed reforms, to come up with a system that is comprehensive for debt restructuring. It concluded that such a system was a suitable replacement for the existing mechanisms, especially for African countries. The study drew to a close by recommending that a multilateral effort be put into creating such a mechanism. It further recommended that debt sustainability measures be undertaken to curb incidences of debt distress in African countries.
Engendering good corporate governance in the Kenyan banking sector: an examination of the limits of law
(Strathmore University, 2019) Obonyo, Moses Buyuka
Over the course of the past decade corporate governance has grown in importance across the institutional landscape. We have witnessed heightened expectation from stakeholders on matters of credibility and accountability from those charged with the management of institutions. This practice is exemplified in the banking sector with the populace demanding more stringent controls to ensure that the custodians of their funds are held to the highest standards of accountability. However, regardless of the enforcement of rules and principles of corporate governance in the banking sector, there have been visible cracks in the area of enforcement, which have led to several bank failures. The resultant effect of this is the loss of billions of shillings in depositor funds. This paper aims to explore corporate governance in the Kenyan banking sector with a focus on the limits of the law in its enforcement.
An Evaluation of the legal and institutional framework governing insurance of upstream petroleum operations: a case study of Ghana
(Strathmore University, 2019) Muhoro, Martin Muhindi
This study explores the legal and institutional framework pertaining to upstream oil and gas insurance and the strides made by the Government in realization of this objective. The research will review key drivers of placement of oil and gas insurance with local companies and the legislative framework in place. This research will study the factors that inhibit successful implementation of oil and gas insurance provisions in Kenya. This study examines other jurisdictions which have succeeded in this space with an emphasis on Ghana. I have reviewed the mechanisms put in place to measure and monitor implementation by identifying Ghana’s success story in domestication of upstream oil and gas insurance. In particular, the research analyses the legal and institutional framework that promotes placement of oil and gas insurance in Ghana for a possible legal transplant to Kenya. Having recently discovered commercially viable quantities of oil and gas, Kenya is still at the nascent stages of oil and gas operations. With a diminishing economy, soaring cases of corruption and high unemployment rates, evaluation of laws that foster economic prosperity for the welfare of all Kenyans are key to achieving the government’s big four agenda. Therefore, it is paramount to review the current law and improvise ways of building Kenya’s industries and create employment opportunities by capitalizing on available resources which follow suit upon oil and gas discoveries in developing economies. Key among them is insurance services. The risk of capital flight and ‘dutch disease’ are imminent in an emerging oil and gas producer such as a Kenya. The key findings of my research was that there is a lacuna in the regulatory framework governing oil and gas insurance in Kenya. The provisions of the Petroleum Act and in particular Section 50 (3) requiring IOC to submit a local content plan on insurance inter alia, cannot be enforced due to lack of enactment of Petroleum Regulations which are supposed to operationalize the Petroleum Act. Further, Insurance Act which regulates insurance business in Kenya is silent on regulation of upstream oil and gas insurance. This study was conducted through analysis of primary and secondary data such as journals, statutes, books, reports and audits. This study hopes to inform the Government of Kenya and policy makers on how best to implement these insurance provisions for the country to derive the benefits of the oil and gas sector.
Kenya’s tax dispute resolution system: a dispute system design evaluation
(Strathmore University, 2019) Kanyi, Brian Gachii
Tax dispute resolution is essential to any tax system. A tax dispute can be said to occur when the tax authority and the taxpayer have divergent views on the taxpayer's liability. The divergence in views often emerges from the perceptions that both parties have that the other party has not correctly applied the law. Resolution of tax disputes through adversarial means such as litigation is often considered the worst-case scenario for parties in a tax dispute. Litigation is often costly and time consuming for both the tax authority and the taxpayer. Furthermore, litigation of tax disputes can lead to delays in revenue collection, financial difficulties for businesses and less compliance. The adverse effects of resolving tax disputes through litigation have led tax authorities to turn towards Alternative Dispute Resolution procedures (ADR procedures) that are less adversarial such as negotiated settlement, mediation and facilitated discussion. The use of ADR procedures in resolving tax disputes promises decreased costs, faster resolution, enhanced relationships between the tax authority and the taxpayer and enhanced voluntary compliance. Although there is a desire to use less adversarial means of dispute resolution to resolve a majority of tax disputes, use of out of court settlement procedure under the Tax Procedures Act, 2015 and the Tax Tribunal Act and the internal Alternative Dispute Resolution framework, the use of less adversarial means to resolve tax disputes remains low. Dispute Systems Design (DSD) as proposed by Ury, Brett and Goldberg seeks to design dispute resolution systems that are oriented towards a majority of disputes being resolved through less adversarial means which focus on the interest of the parties. DSD involves the intentional and systematic creation of procedures for handling disputes in a manner that promises lower costs, more satisfying outcomes and enhanced relationships. Ury, Brett and Goldberg propose six principles that can act as criteria for determining whether a dispute system is oriented towards resolving disputes by less adversarial means and the dispute system cuts the cost of disputing and achieves the gains promised by DSD. This study evaluates Kenya's tax dispute system through the six DSD principles proposed by Ury, Brett and Goldberg to identify any shortcomings in the design of Kenya's tax dispute resolution system that may hinder the resolution of a majority of tax disputes through less adversarial means. The methodological approach adopted in this study was a review of the relevant literature on Kenya's tax dispute system, DSD and the six DSD principles proposed by Ury, Brett and Goldberg. The study finds that Kenya's tax dispute resolution system does not meet four of the six principles proposed by Ury Brett and Goldberg and as such is not oriented towards a majority of tax disputes being resolved by less adversarial means such as negotiated settlement, mediation and facilitated discussions.
Local content implementation strategy for Kenya’s oil and gas industry: an evaluation of Sections 50, 51 and 52 of the Petroleum Act 2019
(Strathmore University, 2019) Mwangoma, Veronica Lilian
Kenya has realised the need to promote local content in its oil and gas industry hence the reason why the concept of local content has been legislated through sections 50, 51 and 52 of the recently enacted Petroleum Act 2019. This study explores the 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 analyses key drivers of local content within Kenya’s legislative framework and examines factors that impede successful implementation of local content in Kenya’s oil and gas industry. The study evaluates the adequacy of the local content provisions under the Petroleum Act to establish whether the requirements meet international best practices. As a yardstick, the research underscores the presence of local content within Nigeria’s oil and gas framework and examines the mechanisms in place to measure and monitor implementation in order to identify factors that explain the achievement of positive local content outcomes in Africa’s best case study on local content in the oil and gas industry. In particular, the study analyses the legal and institutional framework that promotes local content in Nigeria in order to draw lessons for implementation in Kenya. The study finds that Nigeria’s local content requirements in law are well structured and very specific on the in-country needs and this has resulted to positive local content outcomes. This specificity in law has positively shaped local content in Nigeria’s oil and gas industry and, if Kenya can draw lessons from Nigeria’s framework, it will most likely achieve positive local content outcomes in the oil and gas industry. This study was conducted through analysis of primary and secondary data such as statutes, books, scholarly articles, journals and reports. This study hopes to inform the government of Kenya and policy makers on how best to implement these local content frameworks in order for the country and the citizens of Kenya to maximize on the benefits of the oil and gas sector.
Local integration of Somali refugees: will it result in a reduction in terrorism in Kenya?
(Strathmore University, 2019) Mohammed, Hussein Abdinassir
The legal basis of this paper is twofold. First is that the alignment of law, policy and practice in the treatment of refugees as per International and national laws is lacking. Second is that the existing legal framework relating to the movement, registration and treatment of refugees is lacking. This paper deals with preventing the social ill of radicalism and by extension terrorist activity by dealing with the root cause which will be proven to be radicalisation. The ultimate aim of this paper is to try to partly offer a solution to violent extremist activity and radicalisation and is directed towards finding measures that would do so. This paper will begin by outlining a general introduction to radicalism and violent extremism in Kenya. This introduction will be introduced from a purely social point of view, in order to grasp the social issues. Thereafter, the contributing factors to radicalisation and extremist violence will be looked at. A distinction between causes and catalysts will be made, with a brief outline of each and how they relate to the individual. Thereafter, this paper will look at how various organisations have attempted to combat radicalism and terrorism. This analysis will compare local and international attempts at solving the problem, with a focus on Kenya’s legal framework. Criticism and support of the current methods used to counter terrorism will be through the lens of the preventive value of these strategies. Investigation of hypotheses will then be done through research questions. The level of refugee participation in terrorist activity will then be ascertained through investigation. Once this has been determined, the legal means to counter refugee terrorist activity available to the state will be analysed. Within this analysis will be an investigation of whether the state follows legal principles, such as non-refoulment. Then, a comparison of possible solutions in different jurisdictions will be made. There will be special focus on legal integration as a possible solution. Finally, the paper will make findings based on what is presented. These findings will be on whether the state follows the legal framework surrounding treatment of refugees. Also, to what extent the refugees are to blame for terrorist activity and whether there are any weaknesses in the legal framework itself dealing with the treatment and integration of refugees. The paper will conclude by making the recommendations based on the findings of the topical issues. These are for a more appropriate integration policy (including education on integration and citizenship).
Protecting traditional knowledge in Kenya through African Customary Law: an analysis of inclusive subordination
(Strathmore University, 2019) Mwangi, Claude Kamau
Traditional knowledge as an intellectual resource has in recent decades gained increased legal recognition as a proprietary entitlement of indigenous and local communities. It forms the fabric of their social, economic and, sometimes, religious life. Human rights law and intellectual property law have variously constituted regimes for the protection of traditional knowledge as a traditional right, but they have both, arguably, done a suboptimal job. The basic reason for this failure has been the general incompatibility of traditional knowledge systems and conventional legal tools especially those under intellectual property law. Whilst it is recognised that there are many meaningful overlaps between conventional intellectual property forms and traditional knowledge, it goes without saying that there are significant departures made by the latter which would demand a more carefully calibrated scheme of protection. There is now wide consensus in literature that a unique (sui generis) regime of law should be employed to regulate traditional knowledge rights and to protect traditional knowledge. On this point, it is possible to locate customary laws as an integral cog in the wheel of such protection, going by the nature of creation, use and transmission of traditional knowledge, which is within a communal setting for transgenerational purposes. Adequate protection of traditional knowledge would thus require a robust scheme of customary law (and in the case of Kenya, African Customary Law) to form the normative and institutional foundation for protecting traditional knowledge. The history of application of African Customary Law in Kenya is fraught with a systemic legal technique whose effect is to subjugate African Customary Law even where it is the appropriate defining regimen. This trend is apparent from statutory instruments and, most explicitly, in judicial decisions. An analysis of the legal environment surrounding traditional knowledge in Kenya suggests that the expressed legislative intent to protect traditional knowledge through African Customary Law is likely to yield no positive results. Inclusive subordination of African Customary Law, as long as it remains a reality in the Kenyan legal system, will stand in the way of any efforts to meaningfully protect traditional knowledge.
Public-private partnerships in the energy sector in Kenya: the case for effective public participation
(Strathmore University, 2019) Munyao, Scola Nduku
This thesis examines the extent to which the lack of a policy, legal and regulatory framework for public participation in the identification, initiation and appraisal stages of Public Private Partnership (“PPPs") projects in the energy sector in Kenya, particularly in the Lamu coal-fired power Project, has contributed to opposition by stakeholders leading to delays in the implementation of the project. It demonstrates that whereas the Constitution of Kenya, 2010 provides that all sovereign power belongs to the people who then delegate it to the three state organs- the executive, legislature, and the judiciary- the people retain residual powers through which they can call both public entities and the private entities involved in PPPs to account. One of the ways through which this residual power is exercised is through public participation which is one of the national values and principles of governance under Article 10 of the Constitution. Granted that Constitutions are not self-enforcing documents, there is need for additional laws to operationalize this constitutional principle and aid in the day to day governance. No such body of laws has been enacted, yet, in respect of public participation in PPPs. There is, however, a draft public participation policy and a bill pending before the Senate which have been criticized as proposing a cookie cutter-one-size-fits-all- approach regardless of the circumstances of each case. This lacuna has seen entities mandated to carry out public participation involved in tokenism- a mere checking of the constitutional check box- at the expense of meaningful and effective public participation. This thesis proposes incorporation of a public participation framework in line with international standards in the Public Private Partnerships Act, 2013 or an amendment to the Public Participation Bill, 2018 to ensure that it is recognizes and imposes similar obligations for carrying out of effective public participation at all stages of a project on both the public and private entities involved. This will ensure that the resultant projects are acceptable, socially responsive and lead to sustainable development. It also proposes that appropriate sanctions be imposed for non-compliance with the framework so created together with other amendments to ensure realization of the benefits sought in the PPPs contracting framework.
States’ non- Cooperation in the arrest and surrender of suspects of international crimes: an analysis of its precedents and impacts on the International Criminal Court
(Strathmore University, 2019) Maika, Everlyn Kimirei
States’ cooperation is at the core of the International Criminal Court, it requires the cooperation of States to carry out some of the key functions which include arrest and surrender. Without cooperation in arrest and surrender, the court is handicapped as it has no provision to proceed in the absence of the accused. States’ non-cooperation in the arrest and surrender of suspects has been a very big problem for the ICC. This is because of the lack of enforcement powers; it has to rely on States as well as the Assembly of States Parties and the United Nations Security Council to carry out enforcement on its behalf. This thesis evaluates this problem with an emphasis on the factors that mostly account for non-cooperation. It will also analyse the Rome Statute mechanism on non-cooperation to find the reasons for its ineffectiveness. Finally, it will then propose the use of diplomatic sanctions and trials in absentia in an effort to find practical solutions to this problem.
VAT aspects of cross border E-Commerce in Kenya
(Strathmore University, 2019) Mwangi, Bilha Wanjiru
Digital commerce has become part and parcel of the economy and businesses are able to transact in various jurisdictions without establishing a physical presence in the market jurisdiction. Countries have for a long time relied on maxims of territory and jurisdiction to levy taxes which have been hinged on physical presence. The shift of commerce from brick and mortar has therefore presented challenges to jurisdictions on how to deal with the VAT aspects of cross-border digital transactions. This study observed that the OECD has taken measures towards building global consensus on the tax treatment of cross-border electronic commerce. As a result, the OECD issued the International VAT/GST Guidelines which were closely followed by the Mechanisms for the Effective Collection of VAT/GST to guide countries in the levying and collection of VAT/GST in cross-border transactions in services and intangibles. This study has demonstrated that Kenya has adopted some of the measures recommended in the Guidelines but it has also noted that some gaps exist in its legislation. The Kenyan legal framework has been found deficient with regard to the definition of electronic services, adoption of a simplified registration and compliance regime for foreign suppliers of services and intangibles and the failure to include intermediaries in the scope of the VAT law. This study undertook two comparative case studies and analysed the legal frameworks of South Africa and Australia relating to the levying of VAT/GST on cross-border digital transactions. It established that South Africa has successfully adopted the simplified registration and compliance regime and also broadened the definition of electronic services in its VAT law. It noted that, Australia had also broadened its definition of electronic services and included the activities of intermediaries in the scope of its VAT laws. The study has identified these legislative actions as constituting key lessons that Kenya that can draw from these two case studies. This study concluded that Kenya is currently not adequately collecting VAT on cross border digital supplies of services and intangibles. The country needs to borrow from South Africa and Australia and reform its VAT laws.

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