LLM Theses and Dissertations (2019)

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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.
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.
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.
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).
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.

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