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Item A Critique Of The Assessment Methods Used At The Kenya School Of Law(Riara Law Journal, 2024) Ombis, Washington OdongoThis paper will extensively explore the pros and cons of the assessment techniques used at bar school level. At the bar school level there are three modes of assessment which include: firm work, oral examinations and final bar written examinations. The three modes of assessment have been as not being in par with the current law academic structure. However, some have argued that status quo needs to be maintained for all and without any changes being made with reference to the assessment techniques used at the bar school level. This paper will critically interrogate the issue surrounding assessments administered at the Kenya School of Law (KSL) with the aim of offering other alternatives which might be considered in the curriculum development at the KSL.Item The Recent Developments In Commercial Justice In Kenya: The Commercial Justice Court User Committee(Riara Law Journal, 2024) Waitara, Andrew ChegeIntroduction: The Commercial Justice Environment in Kenya Background and significance There is widespread consensus not just in the economic literature but also among lawyers and legal scholars that the judiciary is a vital factor in the Rule of Law and more broadly in economic development. Increased investment, commerce and trade are considered essential in reducing poverty and raising standards of living in any country. Pursuing better standards of justice for business is considered a priority on the path to better public services and more accountable government through increased tax revenues and lower levels of unemployment. These in turn help poor countries enhance their prospects for economic development. Conversely, ambiguous laws and poor law enforcement discourage legitimate business investment and can facilitate the theft of public and private resources. Kenya has been through significant legislative reform including a robust constitutional reform process yielding a document that has received acclaim nationally and internationally. However, the country is increasingly appreciating that even the best substantive law will not bring the rule of law without effective enforcement by a sound judiciary. A judicial system characterised by huge commercial case backlogs, complex legal procedures, manufactured delays and low clearance rates adversely affects the enforcement of commercial contracts and therefore private investments. Moreover, protection against the state itself is made easier when the judiciary can resolve a controversy raised by a private party against the state based on constitutional provisions or parliamentary legislation. Therefore a significant positive correlation exists between a robust, impartial commercial justice system and a conducive business environment. This safeguards the players’ matters as well as shields them from the excesses of the bigger market players and the regulator (i.e. the government). The economic benefits of a strong judiciary in positively impacting commerce in turn mean that the government benefits through increased collection of revenue through taxation. This is particularly important at the time of writing this paper when Kenya’s government is in dire financial straits and is exploring all possible revenue-generation mechanisms. During the 1990s there was an outcry from the local business community as well as international firms represented locally that the enforcement of contracts and the recovery of debt took an inordinately long amount of time in the Kenyan justice system. Aggravating this issue was the ensuing uncertainty. Indeed businessmen have been heard to say that they are not so much concerned with the outcome of the case in their favour or otherwise, as with a decision being reached in a timely manner. This was not happening. The Commercial Division of the High Court at Milimani was therefore established with a view to having a specialized court that could better address these matters.Item 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 MutemiWhen 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.Item 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 MutemiSince 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.Item Breathing New Life Into Dry Bones: The Evolving Paradigms In The Regulation Of Human Tissue Transfer In Kenya(Riara Law Journal, 2023) Mbila, Augustus MutemiThe 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.Item 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 MutemiWhen 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.Item 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 MutemiThe 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.Item Investment Regulation In The East African Community: Community And Domestic Legal Regimes(African Journal of Commercial Law, 2021) Shikoli, Edmond Ashivaka; Ssemmanda, Emmanuel SebijjoInvestment regulation is a driver of investments globally. Some key principles are universally expected by investors equal treatment, facilitation, licensing, repatriation, protection from expropriation and dispute resolution. The investment regulations in the EAC cover all these.Item 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 MutemiCompulsory 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.