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- ItemLegislating ‘coercive control’ in Kenya: A study of the protection against domestic violence act(Strathmore University, 2021) Wabia, Nganatha KaruguCoercive control is a recognised form of domestic violence in Britain, Ireland and Scotland. It denotes the sequence of controlling and intimidating conduct within a domestic relationship. This dissertation seeks to determine to what extent it is necessary to capture coercive control in Kenyan legislation. This discussion will be bolstered by the Power and Control Wheel Theory and the Cycle of Violence Theory which will determine the value—or lack thereof—the recognition of this form of domestic violence. The dissertation will then come to a crescendo with a discussion of the extent to which coercive control is captured in Kenya’s existing domestic violence legislation, specifically the Protection against Domestic Violence Act (Act No 2 of 2015). The latter part of the paper will delve into a comparative study between Kenya and Britain in seeking to establish the applicability of Britain’s coercive control provisions(within the Serious Crime Act 2015) in Kenya
- ItemJust compensation in the compulsory acquisition process in Kenya(2021) Ndambuki, Victor NziokiJust Compensation is a vital aspect of compulsory acquisition. It is important that upon completion of compulsory acquisition of land, the victims of the process, are justly compensated, as they have significantly suffered a detriment in the property they initially owned. In order to achieve this, the current provisions on just compensation must adequately be defined in order to ensure that there is no gap in the law concerning the same, to ensure that entities involved in compulsory acquisition, do not take advantage in the ambiguities found within the provision and finally to ensure that court do not set wrong precedence on matter of just compensation. The main aim of this paper, therefore, shall be to explain how to conclusively and in full, define just compensation. The paper shall identify the challenges that are currently present in defining just compensation and how to fully resolve these challenges. This shall be explained through the aid legal statutes, both from the local and foreign perspective, case law from different jurisdictions, journal articles and published books The paper shall conclude by providing summarised proposed solutions, discussed throughout the chapters, on how just compensation should be defined.
- ItemAppraising the legal and regulatory framework on medical negligence in Kenya(2021) Wanjohi, Sylvia WandiaThe medical profession is one that is heavily regulated in Kenya. However, the cases of medical negligence are rampant and most offending medical practitioners go unpunished. There exists a regulatory and legal framework through which complaints against offending medical practitioners are handled. This research seeks to examine the efficiency of these frameworks and if there are improvements that can be made. This study found that the regulatory framework has extensive and multiple moving parts. Many of the statutory regulators each regulate only a sector of the medical professionals. For example, a nurse, a lab technician and a dentist will be governed by different regulators, each with its own set of rules. Moreover, most of them cannot even give orders on compensation to a victim and are mainly focused on the profession and the professional’s transgressions. This raises the issue of the proper forum for a victim to air a complaint when, in most cases, they are treated by a number of these professionals and are seeking damages for the injury suffered due to negligence. The legal framework, though it does have the power to award damages, is still using the ‘Bolam test’ and other English decisions to determine negligence without due consideration to emerging trends and jurisprudence in the area. Furthermore, in cases of criminal proceedings brought against a medical practitioner, there does not seem to be room for a victim to bring forth a civil claim for damages.There are emerging trends such as the use of new technologies, traditional remedies and even social media to diagnose and treat patients that are considered. This study essentially puts forth the idea of use of a key, super regulator with the powers to both punish the offending medical practitioner and award compensation to the victim of the medical negligence. The legal framework would need to consider the evolving nature of the medical care field as well as the jurisprudence around it, and act accordingly.
- ItemMoving towards a paradigm of corporate criminal responsibility for corporate manslaughter(Strathmore University, 2021) Gikongo, Stephanie WanjikuCorporations in Kenya have progressively been seen to commit wrongdoings to the detriment of the overall population or to specific individuals. Due to the fact that Kenyan jurisprudence is not sufficiently developed to control corporate activity with criminal elements, corporations are not sufficiently deterred from committing criminal offences and hence end up escaping criminal liability. This paper discusses the Kenyan context of corporate criminal responsibility and the enforceability of the laws regarding the same. Further, this paper studies the possibility as well as the implications of introducing the concept of corporate manslaughter into Kenyan legislation. The above is done through a comparative analysis between Kenya’s legislation on corporate criminal responsibility and The U.K’s Corporate Manslaughter Act with a view of analysing the lessons Kenya can learn from the U.K. In addition, research on this matter is carried out through an analysis of precedents , journals, relevant articles and relevant legislation relating to the matter in question. The findings of this paper show that the concept of corporate criminality is more effective once the focus shifts to probing the fault of the corporation as a whole. Through a jurisprudential view of the separate legal personality of a corporation, this paper shows that a corporation can itself attract criminal liability and therefore can and should be punished through a mix of sanctions which will suffice to achieve the deterrence and retributive ends of criminal punishment. This paper finally concludes by recommending that Kenya should adopt the realist model in assigning criminal responsibility to corporation itself and create the offence of corporate manslaughter to hold corporations accountable for their actions/omissions that caused the death of others.
- ItemIntercountry adoption in Kenya: A critique on the role of government regarding the modern-day human trafficking(Strathmore University, 2021) Wangusi, Shirley ShitawaIntercountry adoption is the process by which one takes a child from one country to their own through permanent legal means, bringing the child into their family, treating them as their own and giving them all the rights and duties of their own children.The process ought to be carried out in a manner that would give priority to protecting the child’s best interests as provided by the Constitution of Kenya 2010. Unfortunately, intercountry adoption has increased vulnerability of children to human trafficking;a term defined as the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Since the matter involves the violation of human rights, it is the duty of the government to protect the rights of the children involved. To this end, the research seeks to assess the role of government in upholding the child’s best interests.