Browsing by Author "Mbila, Augustus Mutemi"

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    A Pound Of Flesh For 3,000 Ducats, And Some Data: An Appraisal On The Adequacy Of Data Protection Law In Digital Lending In Kenya
    (Riara Law Journal, 2024) Mbila, Augustus Mutemi
    Since the introduction of M-Shwari as a digital lender by Commercial Bank of Africa in 2012, the lending market has seen a proliferation of digital lenders that are largely unregulated. The lenders provide seemingly cheap loans whose interest is huge when the Annual Percentage Rate (APR) is calculated from the weekly, bi-weekly, or monthly payment requirements. The lenders operate through apps that are uploaded to App Stores and pulled down at will. They require their customers to ‘accept’ terms and conditions before accessing the loans, and these terms sometimes allow the lenders unfettered access to customer data which they use and abuse in equal measure. The lenders use such customer data to issue threats, to contact those on the contact lists of the customers’ phonebook, and to report them on Credit Reference Bureaus (CRBs). Based on this mode of operation, these lenders have rightfully earned the name “shylocks”. Through the Central Bank of Kenya (Amendment) Act of 2020, the Central Bank of Kenya (CBK) has been empowered to regulate the activities of these digital lenders. However, this paper raises key concerns on such powers because the mode of operation of these digital lenders is such that the CBK may not adequately regulate them. Does the CBK have capacity to trace the uploading of the apps to App Stores to ensure that they have been uploaded there after obtaining the requisite license? What are the consequences of breach of data privacy and dignity of the customer by the digital lenders? Does the CBK have enough powers and capacity to protect consumers of these services from abuse by the digital lenders? The paper interrogates these issues within the relevant law and concludes that there is a lot more to be done as the available law is not adequate.
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    A Proposal to De-colonise Sale of Goods Law in Kenya: Why the Kenyan Sale of Goods Act is a Hopeless Legislation
    (Mount Kenya University Law Journal, 2023) Mbila, Augustus Mutemi
    When members of the Legislative Council of the Kenya Colony met in July 1930 to pass the Sale of Goods Ordinance, the Kenyan Colony was not represented by any African. White missionaries were the African representatives because it was felt that they knew a lot about Africans that they would best protect African interests in the Act. The Sale of Goods Act, Chapter 31 Laws of Kenya (The Act) was adopted from the English Sale of Goods Act, 1893. There are good reasons to believe that the Act was passed to protect colonial interests in sale of goods Law in the country. This Act has substantively remained unamended since 1893. With the dynamic nature of the commercial environment, it is expected that the Law governing such an environment also keeps the momentum. This has not been the case in Kenya. The current study seeks to critically examine the extent to which the doctrine of freedom of contract is entrenched in the Act. The study examines the topic under four themes: elements of the doctrine of freedom of contract in the Act, formation of the contract of sale of goods, implied conditions and warranties, and exclusion clauses. The study then makes recommendations on how these provisions should be amended or repealed to reflect the modern commercial environment in Kenya.
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    Application of the Doctrine of Eminent Domain in Kenya: Towards A Rights-Based Approach to Compensation
    (Kenya Law Review Journal, 2021-12) Shikoli, Edmond Ashivaka; Mbila, Augustus Mutemi
    Compulsory acquisition of land in Kenya can be traced from the colonial era where colonial masters compulsorily acquired African land in Kenya without compensating the owners of the land. It should, however, be contrasted with expropriation, which is a form of compulsory acquisition in which the landowner does not receive a just and fair compensation. This paper will argue that in the colonial era, African land in Kenya was expropriated by the colonial regime without provision for a just and fair compensation. The current study sought to trace this history of compulsory acquisition of land in Kenya, the legal regimes governing compulsory acquisition of land, the current modalities on compensation and their shortcomings, and to critically analyse the legal regimes with a view to recommending alternative modalities for compensation once the state acquires private land for public purpose. The study finds that the parameters for compensation as provided for in the legal regime governing compulsory acquisition of land and subsequent compensation lack consistency and reliability, based on a critical analysis of cases where such compensation has been awarded in the past. It therefore recommends the use of rights-based approaches to compensation based on the United Nations Development Program’s Human Rights Based Approaches.
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    Breathing New Life Into Dry Bones: The Evolving Paradigms In The Regulation Of Human Tissue Transfer In Kenya
    (Riara Law Journal, 2023) Mbila, Augustus Mutemi
    The story is told of Daedalus who grafted bird feathers to his arms with a view to escaping from his island prison in Crete and fly to Mainland Greece. Although fictitious, recent developments in human organ, tissue and cell transfer have demonstrated that the story of Daedalus was way ahead of schedule and a vision for things to come. There has been attempts at xenotransplantation, a practice that has raised several ethical and legal concerns. Human tissue banking, property rights of donors, and organ trafficking are other issues that need to be addressed. Human organ, tissue and cell transfer saves lives that would otherwise have been lost. Like the Biblical Ezekiel that the Lord instructed to breathe new life into dry bones in a valley, organ, tissue, and cell transplant breathes new life to bodies that would have died, in the absence of comparable alternatives or possibilities of repair. On the other hand, organ, tissue, and cell transfer is subject to failure, which might expose the patient to more danger that they initially faced, and the donor to a problem they never had. These issues need to be addressed by law. Anchored on these emerging paradigms, this paper explores the mysteries and the realities of human organ, tissue, and cell transfer and the extent to which the law has addressed them. It then recommends legislative repeal to address the issues raised.
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    Cross-border sale of goods within the East African community:The need for a uniform legal regime
    (East African Community Law Journal, 2021) Mbila, Augustus Mutemi
    The establishment of the East African Community has enhanced cross-border trade between private (both natural and legal) persons in the region. Crossborder trade has been enhanced by the elimination of barriers to trade in the form of custom duties at the border. A report by the United Nations Economic Commission for Africa (UNECA) shows that in 2017, the net value of cross-border trade in East Africa was $2.4 billion. Tanzania and Kenya are seen as the economic heavyweights of the region, although each of the EAC Partner States has a key role to play in promoting trade in the region. Tanzania accounts for approximately 30% of East African Community’s economy while Kenya accounts for approximately 50% of the economy of the region. However, despite this growth in trade as a result of regional integration, cross-border private traders feel that the EAC Treaty and Protocols do not adequately protect contracts of sale that they enter into in the course of trade. Most importantly, and apart from the domestic laws of the EAC member states, crucial areas of the contract of sale like formation of the contract, transfer of property, obligations of parties and remedies are evidently not regulated by EAC instruments.
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    The Status of Receivership as an Alternative to Winding Up of Insolvent Companies in Kenya Pre and Post 2015 A Review of Relevant Law
    (Mount Kenya University Law Journal, 2023) Mbila, Augustus Mutemi
    When a company becomes insolvent, secured creditors stand at a better position to recover their debt than unsecured creditors. Secured creditors can recover their debt in several ways, including selling the secured asset and appointing receiver managers to run the business of the debtor company with a view to recovering the debt through profits and sales. How has the device of receivership evolved since its inception in England and adoption in Kenya through the repealed Companies Act? This paper seeks to trace this evolution of the device from England with a view to determining its purpose in Insolvency Law. The paper will then examine how the device was applied in Kenya through the repealed Companies Act and then how it has metamorphosed to administration in the current Insolvency Act. The paper will then conclude by determining whether creditors of insolvent companies are now better protected under administration than they were protected under receivership. The paper argues that the insolvency regime that was introduced by the Insolvency Act of 2015 significantly altered the way receivership operates in the country and such an alteration has promoted the protection of creditors while at the same time helping in the preservation of viable businesses.