Past Issue

Contents

Editorial

G. Boss Shollei (EDITOR)

Foreword

Foreword

The Kenya Law Review Journal is a platform for the scholarly analysis of Kenyan law and interdisciplinary academic research on the law. It will be published at least annually and it will seek to establish itself as the reference of choice for both international and local readers in discussions on Kenyan law.

The timing could not be more apt for an official law journal for Kenya. A growing number of contemporary scholars recognize the value of journal-style analysis in understanding legal systems and their role in society. Indeed, Kenya has an established scholarly tradition and a rich heritage of scholarly publications by professional, academic and freelance intellectuals. The bulk of this heritage is captured in academic and professional journals, unpublished academic papers, periodicals and in papers delivered at academic and professional fora.

However, Kenya’s public sector hasn’t seen much success in establishing a centralized and sustainable platform for a scholarly analysis of contemporary legal issues. Credit should nevertheless go to the University of Nairobi which has established a faculty-edited law journal and the efforts of the Law Society of Kenya, the Kenyan Chapter of the International Commission of Jurists, various research bodies and individual publishers for their efforts in advancing legal scholarship.

The Kenya Law Review aims to complement these efforts by providing an outlet for the publication of high quality research papers to fill a gap in the legal and social science literature that often leaves scholars, lawyers, and policy makers without basic knowledge of legal systems or with false or distorted impressions.

The focus of the journal will be on studies of the legal system and analyses of contemporary legal issues with particular emphasis on the article’s substantive contribution to understanding some aspect of the country’s legal system. The Editorial Policy of the Journal is non-ideological and with a multi-disciplinary outlook, to include articles showing the interplay between the law and other disciplines.

I am hopeful that the Journal will engender a culture of knowledge creation, acquisition and dissemination which is sorely needed in Kenya’s legal system.

G. Boss Shollei
EDITOR

VOLUME 1, 2007

Independence of the Judiciary, Accountability and Contempt of Court

Independence of the Judiciary, Accountability and Contempt of Court

The Hon. Mr. Justice J.E. Gicheru

INTRODUCTION

Contempt of Court, Independence of the Judiciary and Judicial Accountability are huge themes that should ordinarily be tackled independently. The choice of the topics and the consolidated mode of presentation is, however, dictated by their relevance as current legal problems and by the expediency of dealing with related matters together. These subjects have recently been called into debate following disturbing stances, acts and omissions of the executive and the legislative institutions of the government and their members in relation to the process and decisions of the Court.

The relationship of the members of the executive and legislative institutions of the government with the Judiciary has in the recent past been characterized by three attitudes the fi rst of which is taking the Court as a necessary step before extra- judicial (and illegal) mass action to justify the subversion of rule of law in the pursuit of the litigants’ interests. Secondly, the process of the Court and its decisions have been held in outright contempt and have been disobeyed by factions of the executive and the legislature that are adversely affected and thirdly, the legislature has arrogated itself the role of a supervisor of the discharge by the Court of its judicial function. This has taken the form of discussions through question time in Parliament on matters pending before the court and recently the purported investigation in Court by the Parliamentary Committee on Security regarding the whereabouts of the cocaine haul the subject of pending criminal proceedings. None of these attitudes come near to the desirable mutual respect between the institutions of the government under the constitutional doctrine of Separation of Powers by which the three institutions of government should respectively perform their special functions and thereby uphold the rule of law and good governance.

This presentation is designed to earnestly exhort the judges to take seriously their constitutional duty of judicial adjudication without regard to the misconceived protestations of the members of the executive, legislature and the general public who second-guess the Judiciary’s authority. The institutions of government are urged to work in complementary partnership for the benefi t of the inhabitants of Kenya, Now let me justify that posture with the applicable principles of our law in relation to Independence of the Judiciary, Accountability and Contempt of Court.

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The Role of the Judiciary in Promoting Environmental Compliance with Sustainable Development

The Role of the Judiciary in Promoting Environmental Compliance with Sustainable Development

The Hon. Mr. Justice J.B. Ojwang'

1. THE LAWYER’S CONCERN WITH THE ENVIRONMENT: ILLUMINATING THE CONTEXT

The environment is thus typified by Rosalind Malcolm in her work entitled, A Guidebook to Environmental Law (London: Sweet & Maxwell, 1994) (at p.1):

“The environment then becomes that combination of material and social things which conditions the well-being of people.  In the workplace, this could mean the measures which are available for the health and safety of the workers, the presence of asbestos on the construction site, or the fumes from the dry-cleaning solvents at the laundrette.  In the home, it could mean the absence of excessive noise from the neighbours, the freedom from smoke from a nearby demolition site or the impact of a proposed new motorway. In the countryside, it could be represented by the loss of amenity for nearby urban dwellers caused by the opening of an open-cast coal mine or a stone quarry.”

From such a characterisation, it can be seen that our pre-occupation with the integrity of the environment addresses three cardinal issues:  
 
(i) Prudence in the use of environmental resources – to the intent that they may, as the capital base for the economy, not be exhausted;
  
(ii) Effective control and management of social and economic activities – so that they  may not generate harmful levels of pollution and waste; and
  
(iii) Ecological planning and management – so as to achieve and maintain an aesthetic and healthful arrangement of the structures, features, assets and resources surrounding us.  To such extent as we achieve those goals, so much is the quality of life for humanity enhanced; and so the constant concern for the sustenance of the integrity of the environment, is a fundamental dimension in the quest for greater civilisation in the human world.

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The Role Of Bankers In Promoting Compliance With Environmental Law

The Role Of Bankers In Promoting Compliance With Environmental Law

Dr. Francis Okomo-Okello

1. PREAMBLE

As a prelude to my presentation, I propose to briefly situate the role of banking in economic development and thereafter examine why Bankers should accept the gate–keeper’s role or accept to be surrogate regulators, in promoting compliance with environmental laws and regulations. The exposition thereafter proceeds to; 

  • Analyse Kenya’s legal framework as compared to the other jurisdictions and opine on an appropriate legal/fiscal framework that would facilitate responsible environmental stewardship;
  • Examine the possible effect of environmental liability on banker/ industrial relations;
  • Comment on liability and the doctrines affecting possible scope and limitation of lender liability for environmental injuries and/ or damage against court decisions made in other jurisdictions with relatively mature legislative frameworks on environmental matters/laws;
  • Explore possible implementation mechanisms by Bankers to promote compliance with environmental laws and regulations;
  • Evaluate the efficacy of the National Environment Trust Fund and National Environment Restoration Fund possibly structured on the basis of the American "Superfund";
  • Provoke a discussion on how the Bench and the Bar should approach environmental litigation.
  • Give an assessment of the challenges lying ahead including the need to exercise judicial restraint in the development of case law in relation to Environmental Management in Kenya particularly in relation to lender liability which is derivable from the facilitative role Bankers are expected to play as Surrogate Regulators; 
  • Make possible recommendations on the way forward; and 
  • Draw certain conclusions.

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Implementing the New Partnership for Africa’s Development (Nepad): Whither the African Peer Review Mechanism?

Implementing the New Partnership for Africa’s Development (Nepad): Whither the African Peer Review Mechanism?

T.O. Ojienda

ABSTRACT

This paper makes an assessment of NEPAD’s legal and institutional framework with a view of finding out its viability in achieving its objectives. In more particular times, the paper seeks to determine the place of the African Peer Review Mechanism (APRM) in implementing the objectives of NEPAD.  As such, Part 1 of this paper traces the origin of NEPAD to the idea that using political strategies rather than economic approach would facilitate the recovery of Africa from the crisis it has been in. In addition to highlighting the objectives of NEPAD and its leadership structure, this part makes a discussion of its programme of action in three major themes: peace and security, democracy and political governance, and economic and corporate governance.

In the second phase, I evaluate the participating countries’ performance under the NEPAD initiative. In this regard, I assess the APRM being the instrument voluntary acceded to by member states of the African Union as an African self monitoring mechanism. This discussion includes a look into APRM’s principle, participation in the process and its mechanism-leadership and management structure. The periodicity, types and stages of peer review is also addressed under this phase. Notably, the APR process consists of fi ve stages which culminate in an APRM Report which is considered by the Heads of State and Government of the participating member countries and, ultimately, formally and publicly tabled in key regional and sub-regional structures.
 
The third part of this paper looks into the Standards, Criteria, and Indicators for the APRM. Using this scheme with Democracy and Political Governance as an identifi ed area, I attempt a brief but incisive outline of the objectives, standards, criteria and indicators employed by the APRM in assessing the situation in a country.

The final and indeed the heart of the paper is Part 4 which assesses the adequacy of and challenges to the APRM. First, given the differences of historical context and stages of development, African states are not peers. Considering, for example, Gross Domestic Product or democracy and political governance as a Possible Peer Index, leads to the conclusion that “to set up a mechanism based on peer inference cannot only be fallacious, but also misleading” because the disparities among African States on these issues are wide. Again, the principle of non-intervention whose mainstay is that the process is voluntary and that a participating state may terminate its participation may undermine the process.


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Educating Diana: Cultural Liberation for Self Determination

Educating Diana: Cultural Liberation for Self Determination

Charles Alenga Khamala

ABSTRACT: A CRITIQUE OF WAMBUA V WAMBUA

“Basic education encompasses the broadest possible sense of learning at any stage of life.”  Students who belong to an educated elite parentage set high educational standards. They are thus “entitled to more resources to achieve a higher education.” This was stated in a family dispute between Diana Ndele Wambua Versus Paul Makau Wambua. Invoking the Children’s Act 2001 the Kenyan courts recognized the existence of special circumstances with regard to the welfare of a 23-year old medical student. She declined to undertake a public sponsored general Arts degree. Her estranged father’s consent was instead compelled to secure her enrollment alongside private medical students using his employer’s bursary facility.

An adult student’s choice to benefit from public funding is justifiable under Ronald Dworkin’s challenge model. Diana’s theory of welfare assumes that resources should be distributed so that people are not only equal in the enjoyment they take directly. But also equal in their convictions that their personal choices should succeed. Consider the choices available and range of cultures within her options of the kind on life she lives. Then, choice is permitted by resources and culture to be made within the available range of options from which the kind of life she lives is to be made.

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The Emerging Jurisprudence on Kenya’s Constitutional Review Law

The Emerging Jurisprudence on Kenya’s Constitutional Review Law

Dr. Kithure Kindiki

1. INTRODUCTION AND BACKGROUND

From independence, Kenyans never owned the process of writing their constitution. The Lancaster House conferences that hastily canvassed a constitution for the country, was fraught to the end, with suspicions by selected leaders of different Kenyan interest groups against each other. Nonetheless, they managed to broker a graceful consensus that furnished Kenya with a constitution, hence paving the way for independence. 
Critical subsequent amendments to the independence constitution, and their negative impact on Kenya’s social, political and economic fabric, ignited the clamour for constitutional reforms. The core averse amendments included; the 1964 amendment which unifi ed “the offices of the Head of State and the Head of Government”; the 1964 and 1968 removal of “the constitutional protection against the redrawing of regional and district boundaries or the creation of new regions or districts”; the 1965 amendment that changed the state of emergency approval from 65% to simple majority and the 1966 amendment that removed the time limitations on state of emergencies; the 1966 amendment requiring Members of Parliament who defect or start a new party, to seek a fresh mandate from their constituents; the 1968 abolition of the Senate;the 1968 amendment that gave the President the authority to appoint the twelve nominated Members of Parliament; the 1975 amendment that allowed the President to waiver the penalty on persons found guilty of an election offence, not to contest elections for fi ve years; and, the 1982 constitutional amendment that made Kenya a de jure one party state.


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Landmarks from El Mann to the Saitoti Ruling; Searching a Philosophy of Constitutional Interpretation in Kenya

Landmarks from El Mann to the Saitoti Ruling; Searching a Philosophy of Constitutional Interpretation in Kenya

Muthomi Thiankolu


1. INTRODUCTION

Constitutional litigation and discourse in Kenya have invariably been inspired by deep-seated, persistent and apparently insoluble controversies.  Once upon a time, nay, not very long time ago, Kenyan courts could not enforce the Bill of Rights.  The rights embodied in the Bill were “as dead as a dodo” because the Chief Justice had not made procedural rules for their enforcement. A provision in the former section 2A of the Constitution of Kenya that Kenya shall be a single-party state did not infringe upon the freedom of association and assembly. Further, courts could not grant an injunction against the Government to vindicate fundamental rights and freedoms.  The Government Proceedings Act, an ordinary statute, barred the giving of such remedy against organs and officers Government.

The Kenyan President’s Constitutional powers to establish and abolish offices in the Public Service were equivalent to the English Monarch’s royal prerogative powers. Consequently, public servants in Kenya held their offices during the pleasure of the President.  Further, presidential candidates in a General Election had no sufficient interest in the conduct and supervision of elections (sic).  Accordingly, they could not challenge the eligibility of members of the Electoral Commission.  The appointment of such members was the prerogative (sic) of the President. A citizen could not challenge the confi scation of his passport, whether or not the impounding infringed his freedom of movement, the passport was the property of the Government. A citizen could also be validly detained without disclosing the grounds for the detention.


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Sovereignty with Responsibility: A Critical Analysis of State Sovereignty in the context of International Humanitarian Intervention in internal conflicts

Sovereignty with Responsibility: A Critical Analysis of State Sovereignty in the context of International Humanitarian Intervention in internal conflicts

J. N. Abuodha

Saying “humanitarian intervention” in a room full of philosophers, legal scholars, and political scientists is little bit like crying “fire” in a crowded theatre: It can create a clear and present danger to everyone within earshot. Arguments burn fiercely on the subject with some regarding it as an obscene oxymoron.

In this paper I seek to examine some of the ethical, legal and political dilemmas that dominate the fiercely polarised international discourse on humanitarian intervention. It is of course appreciated that the debate is sporadic and opinions varied hence it is practically impossible to review all the literature in a paper this size.
 
The paper will open with an examination of the definition of the term ‘humanitarian intervention’ and briefly trace its historical origins. The second phase will examine some of the major contentions that dominate humanitarian intervention discourse. The last phase of the paper will examine and argue for the redefinition of humanitarian intervention as an essential step towards making it more acceptable as a tool for conflict management in Africa.


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Taxation Without Principles: A Historical Analysis of the Kenyan Taxation System

Taxation Without Principles: A Historical Analysis of the Kenyan Taxation System

Attiya Waris

1. INTRODUCTION

Tax law is said to be barely connected with the universe and with universal law as we understand it. However, tax law is founded not only on principles but also on practicality. There is no element of perpetuity about tax law, only the constant clash of the immediate and semi permanent. A State cannot run a democracy well without taxation and a taxation system cannot be run well without democracy. As Oliver Wendell Holmes has said on one occasion, “Taxes are what we pay for civilised society.”

The importance of tax law must be and is tempered as a result with the capabilities of a state and its constitutional and legislative provisions. First, tax law is of immense importance to society, but considering its lack of consistent principles, the tax lawyer must remember that the ultimate and perfect answers in taxation can never be found. Instead it is a constant system of trial and error which works in a dynamic society.


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The United Nations Convention on Contracts for the International Sale of Goods: A Case For Ratification

The United Nations Convention on Contracts for the International Sale of Goods: A Case For Ratification

Eunice Gichangi

1. INTRODUCTION

January, 1988 marked a turning point in the history of the harmonization of international sales law.  The United Nations Convention on Contracts for the International Sale of Goods (CISG) came into force, having been adopted on 11 April 1980 at an international conference in Vienna.This convention was set out as one that would create uniform rules to govern contracts for the international sale of goods thus removing legal barriers in international trade. The convention was intended to be the centerpiece of international harmonization of international trade law. Kenya participated at the Vienna Conference and eventually signed the fi nal act of the convention on 11th April 1980. To date, however, Kenya has not ratified the Vienna Convention.

This article seeks to make a case for the ratification of the CISG in Kenya.  In so doing, Part II of the paper shall examine previous attempts at harmonization of international sales law, Part III shall then look at the main provisions of the CISG, vis-à-vis those of Kenya’s law on the sale of goods. Part IV shall attempt to put forth the case for the ratification, by Kenya, of the CISG.


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An Analysis of the Legal Challenges Posed by Electronic Banking

An Analysis of the Legal Challenges Posed by Electronic Banking

Kethi D. Kilonzo

1. LEGAL DEFINITION: WHAT IS ELECTRONIC BANKING?

If you are selling water in the desert and it starts raining, it is time to change your business model.  The future of banking lies in clicks and mortar.  Paper based systems are slow, labor intensive and correspondingly expensive to maintain hence, the growth of electronic funds transfer systems.

In the eyes of the unenlightened, electronic banking is the same as internet banking.  This is a misconception.  Any statement equating electronic banking with Internet Banking is a factual misstatement.  Electronic Funds transfer has been described as the third of the great ages of payment, the first being payment by cash (notes and coins) and the second being paper based payment (for instance, cheques).  However, there is no universally accepted legal definition of an electronic funds transfer.  Since it is the privilege of the writer to create her own dictionary, “electronic funds transfer” “electronic banking” as used in this article, means, “any transfer of funds initiated or processed using electronic techniques.”

In its definition of banking business, the Banking Act only refers to the cash and cheque payment systems.  The Act provides no definition and makes no reference to electronic banking.  Electronic Commerce (and electronic banking) preceded the Internet.  Before the advent of communication through Internet, business communication was conveyed using telex, facsimile machine, telephones, telegrams and other electronic media.


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