Apprehension of bias treadmill: critiquing the Popat decision in light of the Capital Market Authority’s enforcement mandate
Date
2024
Authors
Muchesia, S. E.
Journal Title
Journal ISSN
Volume Title
Publisher
Strathmore University
Abstract
Society ascribes value to the law based on its utility within society. Any such law that potentially jeopardizes the growth, development or welfare of a society is often faced with criticism and backlash. Legal decisions are no different: their value is contingent on their ability to solve societal problems and increase overall happiness. This standard remains the same for the Al Nashir Popat and others v CMA Supreme Court’s decision in 2020: its value is contingent on how it solves the existing problems and thereby increasing net happiness. This article analyses the Popat decision in light of the CMA’s enforcement mandate. The decision gives the solution on mandatory delegation under Section 11A of the Capital Markets Act. The paper argues that while the rationale behind it is proper, the mechanism under Section 11A does not deal with the recurrent problem of apprehension of bias. As a matter of fact, the solution may well exacerbate the hurdles to be faced by the regulator in the discharge of their mandate. The impact may be that investors and the regulator fall behind in ensuring market safety, while the errant market players benefit. The paper juxtaposes the current situation with the bi-furcated model in Canada’s Quebec territory, and how they have been able to deal with the problem of apprehension of bias. The paper suggests that Kenya should adopt a similar model of bi-furcation so as to curb the existing problems of bias.
Description
Full - text undergraduate research project
Keywords
Citation
Muchesia, S. E. (2024). Apprehension of bias treadmill: Critiquing the Popat decision in light of the Capital Market Authority’s enforcement mandate [Strathmore University]. http://hdl.handle.net/11071/15860