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- ItemIP rights related to medicine - are IP rights an impediment for accessing essential medicines in Kenya(Strathmore University, 2018) Mussa, Ahliya AmeeraliThis research paper intends to demonstrate that essential medicines on patent do pose a barrier to access in terms of affordability. The research undertaken provides some empirical evidence on the prices of essential medicines that are on patent. The focus of this is to show how patented medicines when sold in generic forms often prove to be much cheaper than the original form of medicines. The research, then, delves into the various agreements and laws such as the TRIPS agreement and the Industrial Property Act that provide for flexibilities such as compulsory licensing. The research then discusses how Kenya needs to make its IP rights regime more transparent and the need for putting up measures to prevent situations of ever greening. In conclusion IP rights do pose a barrier to access for essential medicines since branded medicines are much more expensive then generic medicines.
- ItemThe Regulatory power of taxes - taxing to control betting in Kenya(Strathmore University, 2018) Muchangi, Ianchris WachiraThe activity of sports betting in Kenya has been on a steady rise despite efforts by the government to tame its prevalence. Ever since the first online sp01is betting company started business in Kenya, there has been an increase both in the number of people taking part in the activity and the number of companies operating in Kenya as bookmakers. The government has put in several policy directives and legislative measures in efforts to curb the dangerous rise in the number of citizens taking part in the activity. Key among them is the imposition of a surtax on the bookmakers' proceeds at the rate of 35% of their gross gaming revenue. This led to an uproar from the stakeholders mainly the bookmakers since they are set to lose a huge amount of their income through this surtax. The government on the other hand has turned a deaf ear to their pleas of revision of the 35% tax rate. Betting taxes have been used in various jurisdictions around the world to achieve regulation objectives. Kenya's problem is not unique. This research draws inspiration from jurisdictions that have levied taxes on betting as a means of bringing the sector under regulation. This is done by way of case studies. Legal theories that justify imposition of taxes in general also inform and guide this research. By drawing lessons from two contrasting jurisdictions, this paper makes a case for the retention of betting tax at 35% on the gross gaming revenue.
- ItemThe Pertinence of restorative justice in Kenya’s penal laws(Strathmore University, 2018) Moturi, Martin GigoniRestorative justice processes are key in the achievement of criminal justice. Their aim is to involve victims and community members more intimately in repairing the harm done by criminal offenders while maintaining social ties. These processes may be viewed as an apt alternative to retributive justice systems which involve the punishment and seclusion of offenders by imprisonment. Various countries in the world have established statutory frameworks recognizing restorative justice practices. These are used either as diversionary measures by police and courts or as sentencing options by judges and magistrates. Most States utilize restorative justice practices when dealing with juvenile offenders but some cases involving adult offenders are also quite common. Kenyan legislation provides opportunities for the application of restorative justice mechanisms. Though some statutes explicitly provide that they be used in specific civil disputes, others leave the door open for its application in criminal disputes, including the Constitution of Kenya (2010) under Article 159(2). Paper begins with an analysis of Kenya's role in promoting restorative justice subsequent to the colonial administration. The paper argues that much remains to be done to embrace restorative justice in order to maintain social harmony in the realization of criminal justice among the community-driven Kenyan people. It then delves into the use of restorative justice programmes by four States and its success in the achievement of criminal justice in each. A case study of its use by Rwanda following the 1994 genocide is also presented. Finally, recommendations on an optimal framework of restorative justice in Kenya's criminal justice system are provided.
- ItemRedefining the substantive and procedural protections of Most Favoured Nation clauses in Bilateral Investment Treaties (BITs)(Strathmore University, 2018) Njeru, Patricia WanguiThe MFN Clause has been subject to a change in interpretation an application following a series of cases arising from the both courts and tribunals. This study evaluates the history of the MFN Clause and contrasts it to its contemporary interpretation and application. The core objective is to ascertain the role of the MFN clause with regards to BITs. This will inform the recommendations on the potential redefinition of the clause or the removal of the protection from BITs in its entirety. The scope of the study will be limited to BITs as they are the key tool utilized to further development thorough foreign direct investment in developing countries. As such it is more often than not the case that -the two parties in the BIT are a developed state and a developing state. The key methods used to obtain the findings are desktop research of cases seen to provide the most cogent justification for the conditional extension of the MFN clause. The major finding was, the large acceptance of the substantive protection of MFN clauses, may be extended to include procedural advantages. This extension is justified where it is proved to provide more favourable conditions for investment. A narrow application of the clause in such an instance would be classed as a breach of the inextricable rights owed to investors under the BIT. This study suggests that the best remedy for this potentially detrimental application of the clause would be either to adopt an expressly open or limited MFN clause. However, the best possible remedy would be to do away with the MFN Clause in the context of BITs and never have to worry about the-inclusion of provisions from 3rd party BITs.
- ItemA Study of inequalities emerging from the 2007 employment laws(Strathmore University, 2018) Wanjiku, DaphneThe new Kenyan labour laws are constantly frustrating Kenyan employers as they continue grappling with negative effects of implementing the laws. 1 While this is seen as an advantage to employees who, almost always, have lower bargaining power compared to the employers. It is indeed a fact that changes have occurred within the local job market over the past few years as a result of structural adjustment, liberalization of the economy and technological innovation which called for the review of labour laws. The review of National Labour Laws have been indeed a concern to both the government and the people for a long time. However, the mam1er in which these laws were reviewed remains questionable.2 This dissertation seeks to assess and address the issue of unequal protection of employees and employers under the current employment laws in Kenya. The right of equal protection by the law is the right of all persons to have the same access to the law and courts, and to be treated equally by the law and courts, both in procedures and in the substance of the law.3 There are rising complaints by employers as well as employment law advocates that indeed employment has become a costly affair where terminating an employee is a costly process and failure to follow it leads to a huge penalty.4 This clearly demonstrates a situation of unequal protection by the law between employers and employees where the employees are more protected than the employers. The main areas on which this dissertation focuses are on the issues to do with service pay which has not been adequately provided for, laws on termination as well as suspensions. The Employment Act 5 provides that an employee whose contract of employment is terminated upon the issuance of a termination notice is entitled to service pay for every year worked at such rate as shall be fixed. The Act does not provide who fixes the rate of service pay, however, the courts have applied the rate for calculating redundancy to service pay. The Act also continues to list the exceptions to service pay in Kenya. The exceptions to service pay are compulsory to all employers which renders the provision for service pay obsolete.