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Author: mwj@admin

29 March
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Mediation Advocacy in Kenya –Remoulding The Gladiator in the Room tothe Valuable Ally of Dispute Resolution

Posted by mwj@admin
in Alternative Dispute Resolution

[vc_row triangle_shape="no"][vc_column][vc_column_text] This paper considers the role of lawyers within the Mediation process in Kenya and attempts to shed light on the best practice for Mediation Advocacy and practice generally and the Court Mandated Mediation Program in particular. This follows persistent murmurs from the Mediator community that lawyers are often the stumbling block to a successful mediation settlement agreement. The article aims to deconstruct the role of the lawyer in the mediation process as well as the interplay between the lawyer’s role as protector of their client’s interest and the Mediator’s goal of achieving a satisfactory settlement between the disputants, and how to pivot both to achieve the real purpose of mediation which is a “Win-Win” outcome. The growing prevalence and influence of mediation as a dispute resolution mechanism means that the advocate must acquire a completely new tool box for dispute resolution. It also requires the disputants to adopt a collaborative approach to dispute resolution.This is a huge departure from the traditional adversarial approach of our common law based legal system.1Mediation practice was introduced fairly recently within the formal dispute resolution framework in Kenya with the enactment of Act No. 12 of 2012 that established the Court Mandated Mediation Process. To...

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28 March
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The Coast Jurist – A publication of the Mombasa Law Society Journal

Posted by mwj@admin
in coast jurist

[vc_row triangle_shape="no"][vc_column][vc_column_text] The birth of Coast Jurist during the Covid-19 season is a testimony that indeed good things happen during difficult times. I am honored to contribute an inaugural article to the Coast Jurist Newsletter. And what theme would come to mind at this time than the dispensation of justice during the Covid-19 as viewed from the Bench? On 17/3/2020 when Court proceedings were scaled down due to the Covid-19 pandemic it became apparent that dispensing justice would be challenging. However, in Mombasa Court, out IT department, in light of our motto “Where Technology Meets Justice”, was already on an overdrive mission prior to Covid-19. We were already dispensing justice through the Skype online platform on selected matters. The corona pandemic provided us with a reason to escalate the online platform. Out IT expert, Mr. Collins Ayodo, is credited with midwifing this success story. He worked tirelessly with Hons. Evans Makori (CM), Edna Ameyo (CM), and Deputy Registrars Christine Ogweno and Joshua Nyariki all deserve praise and acknowledgement in this success story. [/vc_column_text][/vc_column][/vc_row][vc_row triangle_shape="no"][vc_column width="1/3"][/vc_column][vc_column width="1/3"][mkd_button size="medium" type="" target="_blank" icon_pack="font_awesome" fa_icon="fa-file-pdf-o" font_weight="" text="Read The Coast Jurist Vol. 1 Issue 1 (2020)" background_color="#003a7e" hover_background_color="#ffce00" link="/3d-flip-book/the-coast-jurist-vol-1-issue-1-2020/"][/vc_column][vc_column width="1/3"][/vc_column][/vc_row] ...

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28 March
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Decoding the Dilemma of Cryptocurrency Regulation in Kenya University of Nairobi

Posted by mwj@admin
in Thesis and Projects

[vc_row triangle_shape="no"][vc_column][vc_column_text] Although Kenyans have quickly and enthusiastically adopted cryptocurrency nevertheless the government has not provided an adequate regulatory framework to safeguard their interests. This has created substantial risk which requires to be addressed as it could lead to substantial and negative effect on the Kenyan economy. Cryptocurrency and its underlying blockchain technology are a relatively new phenomenon around the world which have evolved dramatically and are now considered to be a disruptive technology. They have developed to such a point as to become impossible to ignore. Their proponents champion anonymity and security in the transfer of value in digital format with minimal government involvement thereby allowing the community to transact through a spontaneous order dubbed by economists as catallaxy. Though the cost of transaction particularly across borders has been significantly reduced cryptocurrencies have not been without challenges particularly as regards theft, illegal and criminal activities. The pace at which cryptocurrencies are developing has therefore created substantial challenges for regulators around the globe especially in their definition and/or classification (taxonomy) as well as in the manner in which various regulators have chosen to respond to this new phenomenon. The study reveals that Kenya too is grappling with how to deal with cryptocurrencies...

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28 March
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Evaluating The Kenya-United Kingdom Economic Partnership Agreement, 2020 and its Dispute Resolution Provisions

Posted by mwj@admin
in Conflict Management and Sustainable Development

[vc_row triangle_shape="no"][vc_column][vc_column_text] This paper considers the Economic Partnership Agreement (EPA) between the United Kingdom and Kenya signed on 8thDecember 2020 and which was ratified by the Kenyan Parliament on 9thMarch 2021. The theory underlying the concept of the EPA is that they seek to create greater market access to both countries and are a source of much needed development for the developing such as Kenya. The research considers the nature, importance and historical foundation of EPAs and will address a number of issues particularly as they impact dispute avoidance and settlement which is the focus of this study. On 8th December 2020 the governments of the United Kingdom and the Republic of Kenya signed and established an economic partnership agreement (EPA) designated as a treaty with investment provisions (TIP)2by the United Nations Conference on Trade and Development (UNCTAD). The EPA3provisionally came into force on 1stJanuary 2021 pending full ratification procedures per the Explanatory Memorandum4and it has since been passed by both the UK and Kenyan Parliaments and now awaits the exchange of ratification documents. [/vc_column_text][/vc_column][/vc_row][vc_row triangle_shape="no"][vc_column width="1/3"][/vc_column][vc_column width="1/3"][mkd_button size="medium" type="" target="_blank" icon_pack="font_awesome" fa_icon="fa-search" font_weight="" text="Read Full Article" link="http://journalofcmsd.net/wp-content/uploads/2021/03/VOLUME-6-ISSUE-2_compressed.pdf" background_color="#003a7e" hover_background_color="#ffce00"][/vc_column][vc_column width="1/3"][/vc_column][/vc_row] ...

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24 February
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Third Party Funding and Investment Arbitration – The Ménage À Trois Conundrum of International Arbitration?

Posted by mwj@admin
in Alternative Dispute Resolution

[vc_row triangle_shape="no"][vc_column][vc_column_text] Third Party Funding and Investment Arbitration – The Ménage À Trois Conundrum of International Arbitration? [/vc_column_text][vc_empty_space height="15px"][vc_column_text] This paper considers Third Party Funding as an evolving phenomenon within the context of international arbitration. This concept has grained significant ground particularly following the financial turmoil experienced during this new millennium, great technological strides and the emergence of high value awards on the global plane. The sector is largely variable and is becoming populated by players who though highly invested prefer to operate in the background with potential to significantly influence and alter the playing field. Considering that the sector is in flux and given its international nature subject to different and constantly conflicting dynamics in different jurisdiction there is a case to be made for policy and regulatory reform to respond to the ethical conundrums that have emerged and continue to develop. [/vc_column_text][vc_empty_space][/vc_column][/vc_row][vc_row triangle_shape="no"][vc_column width="1/3"][/vc_column][vc_column width="1/3"][mkd_button size="medium" type="" target="_blank" icon_pack="font_awesome" fa_icon="fa-address-book-o" font_weight="" text="Read Full Article" link="https://www.ciarbkenya.org/wp-content/themes/mxp_base_theme/mxp_theme/assets/volume9-issue1.pdf" background_color="#003a7e" hover_background_color="#f9c147"][/vc_column][vc_column width="1/3"][/vc_column][/vc_row] ...

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24 February
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The Art and Science of Virtual Proceedings: Shifting the Paradigm in ADR Tribunals

Posted by mwj@admin
in Alternative Dispute Resolution

[vc_row triangle_shape="no"][vc_column][vc_column_text] The Art and Science of Virtual Proceedings: Shifting the Paradigm in Alternative Dispute Resolution Tribunals [/vc_column_text][vc_empty_space height="15px"][vc_column_text] This paper considers the paradigm shift necessitating virtual proceedings following the various institutional guidelines and laws that were instituted at the onset of COVID-19 pronounced and issued by the World Health Organization as well as the Kenyan Ministries of Health and Interior and Coordination of National Government all requiring social distancing and imposing stay at home policies. In some jurisdictions Kenya being one of them, the Courts were initially closed. The Judiciary later put in place upscaling of operations geared primarily towards the use of virtual proceedings in the delivery of judgments and the dispensation of urgent applications. Adapting to online and virtual proceedings within the Alternative Dispute Resolution (ADR) space has been more challenging to track due to the private nature of most proceedings. However, shared experiences by practitioners and participants in ADR can give an insight into their experiences comparative to the litigation sphere. The writer further chanced upon a Webinar conducted by ICSID entitled The Art and Science of Virtual Hearings which made some very useful contributions to the practical experience of conducting virtual proceedings from the perspectives of the Tribunal, the...

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