Journal Articles: Recent submissions
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Now showing items 21-39 of 39
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Musikali, Lois M. (International Company and Commercial Law Review, 2009)[more][less]
Abstract: The general concern about the adequacy of self-regulation as a mode of policing corporations has once again come to the forefront of the corporate governance debate following the current economic crisis. Irresponsible lending to individuals who cannot afford to repay loans has resulted in the near collapse and nationalisation of banks such as Northern Rock and Bradford & Bingley in the United Kingdom and Fannie Mae and Freddie Mac in the United States.1 Once again, the Government has had to intervene to prevent an economic crisis, by nationalising failing financial institutions to avoid them falling into liquidation. Government intervention in the regulation of markets, particularly through the use of criminal sanctions, has not been popular in recent years. The use of criminal sanctions to regulate business activities is generally perceived as being an overreaction that is likely to discourage directors from taking the risk that is necessary to run a business, thereby slowing down economic growth and interfering with profitability. It is frequently argued that criminal sanctions are not necessary in the regulation of business and corporate governance in particular. Among the arguments made against the use of criminal sanctions in corporate governance is the procedural argument which perceives the use of criminal sanctions as being an expensive way of enforcing regulation,2 which has a high burden of proof and as such is prohibitive to those seeking remedies for expropriation, as shareholders are required to demonstrate the director's culpability.3 In addition, it is argued that criminal sanctions cannot provide restitution to shareholders and employees who have lost their jobs.4 On top of that, the use of criminal sanctions is likely to result in over-deterrence of prospective directors, making them risk averse which is detrimental to the long-term benefit of the company.5 Others simply claim that not everyone is deterred by the criminal sanction6 and therefore using criminal sanctions will not deter a self-interested director. However, government intervention, hitherto a mechanism of last resort, would now seem to be an inevitable consequence of the failure of markets to regulate themselves, and the only method likely to guarantee at least a modicum of financial stability during the current crisis. Stability is important as the success of any economy in the 21st century lies in its ability to create and maintain successful corporations. The survival and long-term profitability of corporations is no longer a private interest which merely affects those who deal with the corporation at a primary level, for instance investors, but also a public interest affecting the welfare of stakeholders such as employees to whom it provides jobs and pensions. When financial scandals occur, employees stand to lose their livelihoods not only in the form of jobs but also of life-long pensions. The Government therefore has a responsibility to ensure that employees as well as other stakeholders of the corporation are protected from the fraudulent acts of managers who do not act in the best interests of the company. The success of the corporation is therefore a public interest that, to a certain degree, ought to be protected through state regulation. This article considers the role of law in corporate governance, as legislation is one of *I.C.C.L.R. 134 the key ways in which the Government has intervened in previous crises, such as Enron in the United States. The focus of this article is an investigation into whether government intervention in corporate governance through criminal sanctions is necessary and to what extent it affects the ability of directors to perform their entrepreneurship function of risk-taking. This article begins by addressing the function of national legislation in corporate governance, which might be thought of as hard law, as contrasted with the soft law of the various City codes of practice, and then explains how criminal sanctions apply to the corporate environment. Description: Journal Article URI: http://repository.daystar.ac.ke/xmlui/handle/123456789/4150 Files in this item: 1
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Wekesa, Moni (JutaJournals, 2019)[more][less]
Abstract: The Constitution of Kenya, 2010, stipulates that sovereignty lies with the people. This sovereignty can be exercised directly by the people through voting at periodic elections and referenda and indirectly through elected representatives, among others. Presidential elections in Kenya— as elsewhere in Africa—are usually hotly contested. Irregularities and illegalities are bound to occur. The Constitution of Kenya 2010 codified some rights, including those of the voter and the manner of conducting elections. The adjudication of presidential petitions was vested in the Supreme Court. Relevant enabling legislation and regulations have also been formulated. The Supreme Court has applied both the quantitative and qualitative tests in determining election petitions at different times. In the Presidential Election Petition of 2013, some of the issues canvassed revolved around whether there was a valid voters’ register and whether there were irregularities and if the illegalities observed were of a high enough threshold to affect the integrity of the election. The Supreme Court, applying the quantitative test determined that the election results would stand. However, in the 2017 Presidential Election Petition, the court, applying the qualitative test, deviated from its 2013 decision and nullified that election. The question that this article interrogates is whether the Supreme Court acted with constitutional fidelity in both these decisions. This article analyses the jurisprudence from the 2013 and 2017 decisions of the Supreme Court Description: Journal Article URI: http://repository.daystar.ac.ke/xmlui/handle/123456789/4117 Files in this item: 1
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Wekesa, Moni; Kinyua, Ann Wanjiku (Pioneer academic publishing limited, March 1, 2023)[more][less]
Abstract: Epistocracy is the rule by the elite while democracy entails the rule of the people by the people for thepeople. The common person is supposed to have space to determine how they wish to be governed. Kenya’s constitution provides that all sovereignty belongs to the people. And that such sovereigntycan be exercised either directly or indirectly through elected representatives and establishedinstitutions. With respect to constitutional amendments, the people can participate througheither apopular initiative or a parliamentary initiative. Both routes could eventually require the direct participation of the people through a referendum. In some other jurisdictions, amendment of theconstitution is a preserve of the legislature. In others, reference is always made to the commonperson. In Kenya, the law is not clear on ‘who’ can initiate an amendment to the constitution throughthepopular initiative. The common person in Kenya is poor; can’t afford necessities of life like foodandhealthcare; and to some extent, forms a large segment of the illiterate population. The commonpersonrelies on the benevolence of the elite and is easily influenced by them to even vote in a certainway. This situation would appear to make the concept of democracy a mirage. This paper examines theplace of the common person in various attempts at amending the 2010 Constitution. It is arguedthat though the common person is legally empowered to participate in constitutional amendments, thereality is that it is the epistographs who determine such constitutional changes. Recommendations onimproving the level of participation of the common person in constitutional amendments arepostulated to include continuous and enhanced ‘awareness’ seminars as well as improving underlyingsocial conditions such as access to food, health and education. Description: Journal Article URI: http://repository.daystar.ac.ke/xmlui/handle/123456789/4116 Files in this item: 1
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Musikali, Lois M. (Governance Journal, 2022)[more][less]
Abstract: This paper provides an overview of corporate governance scholarship from inception to-date and situates the current issue of managing Big Data within corporate governance practice and scholarship. Its aim is to highlight the possible impact of Big Data on current corporate governance practice and regulation with a view to encouraging further research on the same. Whilst digitisation has aided advances in good corporate governance practice and regulation, the effects of digitisation have not all been positive: a significant number of corporate governance scandals today are digital. With a focus on data mining, this paper explores this phenomenon, Africa’s readiness for it and the surrounding issues it raises both within corporate governance and human rights. That Big Corporations are able to mine data without the data subjects knowledge and use it to their advantage without the data subject’s informed consent and compensation has resulted in a phenomenon referred to as ‘data colonialism’. This paper evaluates the extent to which Africa and in particular Kenya is prepared for the current world of data harvesting and assesses the need for effective data mining regulation in Africa. It considers the effect of the General Data Protection Regulation (GDPR) on Kenya’s Data Protection Act and questions whether Kenya’s legal framework can effectively deal with data mining while highlighting the role that corporate governance has in improving accountability in the way Big Corporations handle data. Description: Article URI: http://repository.daystar.ac.ke/xmlui/handle/123456789/4107 Files in this item: 1
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Muendo, Mercy; Mikinyango, Asha (Daystar University, school of Law, August 4, 2020)[more][less]
Abstract: The Right to Privacy is a right that had been recognizes and applied differently all over the world. On the other side Governments have employed electronic monitoring and tracking techniques as part of their security tool kit. The employment of electronic monitoring has an impact on the individual’s right to privacy. While conducting electronic monitoring and tracking countries are required to uphold the right to privacy. This paper seeks to analyze the Right to Privacy and to what extent it has been implemented in relation to Electronic monitoring and tracking. The paper will compare legal frameworks from different States on the implementation of the right to privacy in relation to Electronic monitoring. The paper will also give recommendations that can serve as a guide to assist policy makers. Description: Journal Article URI: http://repository.daystar.ac.ke/xmlui/handle/123456789/3996 Files in this item: 1
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Asembo, J M; Njororai, W W S; Wekesa, Moni (Daystar University, school of Law, March 1, 1996)[more][less]
Abstract: Objective-To investigate injuries in international rugby football. Methods-All injuries that led to temporary stoppage of the game or to the substitution of a player during the Rugby World Cup prequalifying tournament were recorded. Six matches were played, involving the Arabian Gulf, Kenya, Namibia, and Zimbabwe. Results-47 injuries were recorded, giving an injury rate of eight per match. The number of injuries decreased from 38-3% in the first matches to 23-4% in the final ones. The most serious injury was a concussion and the majority of the injuries affected soft tissues. Anatomically, the lower limbs suffered most injuries (46-80/6), followed by the head (21-3%), trunk (17-0%), and upper limbs (12-8%). Slightly more injuries occurred in the defensive half of the field of play (53-2%) than in the offensive half (46.8%). More injuries occurred in the second half (61-7%) than in the first half (38.3%). Conclusions-Protective equipment should be introduced to miniimise the number and seriousness ofinjuries in rugby. Description: jornal artice URI: http://repository.daystar.ac.ke/xmlui/handle/123456789/3995 Files in this item: 1
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Wekesa, Moni (The International Sports Law Journal, 2018)[more][less]
Abstract: Claudia Pechstein, a female elite German speed skater, was convicted of an anti-doping rule violation by the disciplinary committee of the International Skating Union (ISU) on 1 July 2009 and suspended for 2 years by the ISU. Her appeals to the Court of Arbitration for Sport on 25 November 2009 (CAS 2009/A/1912–1913 Pechstein, DESG gegen ISU) and eventually to the Swiss Federal Tribunal in February 2010 (4A-612/2009 Claudia Pechstein v ISU and DESG) were unsuccessful. CAS is a judicial organ recognized by all international sports bodies as the final forum for the resolution of sporting disputes. This applies also to National sporting bodies in Kenya. On 30 December 2012, she approached a Regional court in Munich (Landesgericht Muenchen 1). She advanced several arguments. First, the provisions in the ISU prohibiting sportspersons from approaching national courts violated her right to approach an independent and impartial tribunal under the European Convention on Human Rights and German law (art. 2 para. 1). Second, the agreement between herself and the ISU binding her to arbitration by CAS was mandatory, and not voluntary, and, therefore, invalid. Third, the CAS is not independent as its arbitrators are picked by sports bodies like the defendant. Finally, both the ISU and its German affiliate (DESG) abused their dominant market position by requiring any athlete interested in the sport of speed skating to follow their rules, which rules were used to suspend her and bar her from competition and use of defendant’s facilities. These issues raised by Pechstein apply to sportspersons in Kenya as well. Pechstein sought a declaration that her ban due to doping was unlawful, and damages for material damage, pain, and suffering. The court dismissed her claim. She appealed to the Court of Appeal in Munich (Oberlandesgericht Muenchen, WuW/E DE-R 4543) on 6 November 2014. The Appeals court, in its decision, agreed with her on all those points, declined the declaration, but awarded her damages. In effect, this decision rubbished the very existence of CAS. In a further appeal, the Federal Court of Justice (KZR 6/15) reversed this decision on 7 June 2016. This paper will analyse the issues that arose in this case. From an analysis of the jurisprudence of the European Court of Justice, European Commission on Human Rights, the European Court of Human Rights (all of which are binding on Germany), as well as jurisprudence from other European countries, it is apparent that the decision by the appeals court was flawed as confirmed by the decision of the Federal Court of Justice. CAS has been and continues to be used by Kenyan sportspersons. Currently, CAS enjoys statutory recognition in Kenya through the Antidoping Act, 2016, which effectively ousts the jurisdiction of Kenyan courts. It is concluded that CAS is a vital institution for the resolution of sports disputes and that it can benefit from a little strengthening. Description: Journal Article URI: http://repository.daystar.ac.ke/xmlui/handle/123456789/3987 Files in this item: 1
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Wekesa, Moni; Awori, Martin (Journal of Medical Law and Ethics, 2020)
[more][less]Abstract: The general position of the law on euthanasia worldwide is that all states recognise their duty to preserve life. Courts in various jurisdictions have refused to interpret the ‘right to life’ or the ‘right to dignity’ to also include the ‘right to die’. Instead, they have held that the state has a duty to protect life. Three categories can however be noted. At one extreme are those countries that have totally criminalised any appearance of euthanasia. In the middle are countries that prohibit what appears to be active euthanasia while at the same time tolerating ‘dual-effect’ treatment and withdrawal of artificial feeding. At the other extreme are countries that allow euthanasia. Even in this last category of countries, there are stringent guidelines embedded in the law to prevent a situation of ‘free for all’. Anecdotal evidence, some empirical studies and case law seem to suggest that euthanasia goes on in many countries irrespective of the law. Euthanasia is a criminal offence in Kenya. However, there have been no empirical studies to ascertain whether euthanasia goes on in spite of the law. This article surveys the current state of the practice of euthanasia globally and narrows down to elaborate on the state of affairs in Kenya. URI: http://repository.daystar.ac.ke/xmlui/handle/123456789/3162 Files in this item: 1
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Musikali, Lois M.; Musikali, Elizabeth M (Africa Nazarene University Law Journal, 2015)
[more][less]Abstract: Corporate governance scholarship, so far, has focused on a rather narrow, finance-dominated, agency theory perspective. This has been the case even in defining corporate social responsibility (CSR). Corporate social responsibility has only been justified where it is considered to be financially beneficial to the company. It is on that basis that this article addresses the question of whether such a paradigm is justifiable when applied to developing countries such as Kenya. The article is a case study of CSR in Kenya’s mining industry that is dominated by multinationals. In particular, it focuses on the treatment of stakeholders in the Mui Coal Mining Project in Kitui County, Kenya URI: http://repository.daystar.ac.ke/xmlui/handle/123456789/3120 Files in this item: 1
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Musikali, Lois M. (International Company and Commercial Law Review, 2008)
[more][less]Abstract: There is increasing evidence that a country's legal system plays a significant role in determining the success of its corporate governance system. Research has shown that good corporate governance is more likely to be associated with countries with a strong legal system.1 However, in the recent move towards the privatisation of corporations, Kenya, like other developing countries, has adopted a corporate governance code that is drafted from a combination of codes from developed countries with little thought being given to the underlying conditions of the market in which this code is to be enforced. A significant amount of training of company directors on the importance of good corporate governance is underway. URI: http://repository.daystar.ac.ke/xmlui/handle/123456789/3119 Files in this item: 1
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Musikali, Lois M. (International Company and Commercial Law Review, 2009)
[more][less]Abstract: The general concern about the adequacy of self-regulation as a mode of policing corporations has once again come to the forefront of the corporate governance debate following the current economic crisis. Irresponsible lending to individuals who cannot afford to repay loans has resulted in the near collapse and nationalisation of banks such as Northern Rock and Bradford & Bingley in the United Kingdom and Fannie Mae and Freddie Mac in the United States.1 Once again, the Government has had to intervene to prevent an economic crisis, by nationalising failing financial institutions to avoid them falling into liquidation. URI: http://repository.daystar.ac.ke/xmlui/handle/123456789/3118 Files in this item: 1
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Musikali, Lois M. (International Company and Commercial Law Review, 2010)
[more][less]Abstract: The ultra vires1 doctrine in company law, namely that a company is formed only to pursue the objects specified in its memorandum of association and if it acts outside those objects the transaction is ultra vires and void,2 has for a long time been one of the more intractable problems facing persons dealing with companies in common law jurisdictions.3 Under the ultra vires doctrine, companies could avoid liability under contracts with innocent third parties on the ground that the company never had the power to enter into the said contracts in the first place. A significant number of common law jurisdictions, including Australia, Canada, New Zealand and Hong Kong, and most recently England, have taken steps to abolish the doctrine of ultra vires. This article considers the provisions of Kenya's Companies Act (the Act)4 that provide for the doctrines of ultra vires and why there is need to review them. The discussion within this article is limited to the ultra vires doctrine as it relates to the objects clause and not to the general breach of directors duties in public listed companies. URI: http://repository.daystar.ac.ke/xmlui/handle/123456789/3117 Files in this item: 1
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Muendo, Mercy (Mount Kenya University Law Journal (MKULJ), 2012)
[more][less]Abstract: The Coast of Somalia is one of the piracy-prone areas in the world today. This article while briefly touching on the legal aspect will address the various types, dangers, and effects of piracy along the Somalia international water and the Gulf of Aden on the International Waters; It will address the trends of privacy in the Somali region and the Gulf of Eden. It will touch on the factors contributing to privacy in the region and the reasons for its rise. For example failed government in Somali has been a great catalyst in the rise of piracy in the Somali international water, difficulties associated with maritime surveillance and lack of essential coastal and port side security the rise in global production of small arms. It will highlight the efforts of what the International Community has done to counter piracy; and the overall effects of its intervention through the International Maritime Organization (IMO).1Attempts like the passing of the legal instrument to equip the international waters the measures adopted by the international community with teeth to fight against piracy in the Somali international waters. The major adopted by the international community against the situation of privacy in the Somali water one of the most important measures being the creation and use of piracy reporting center. The author contributes by sharing suggestions that could be adopted to enhance the eradication of privacy along Somali international water and the Gulf of Aden The dangers of piracy and recommendations on the way forward to eradicating piracy in Somalia. URI: http://repository.daystar.ac.ke/xmlui/handle/123456789/3115 Files in this item: 1
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Muendo, Mercy (Mount Kenya University Law Journal (MKULJ), 2017)
[more][less]Abstract: The President of Kenya recently announced Kenya has signed an International Agreement with the United States of America for direct flights from Kenya to the United States to take place. In order for this agreement to be implemented Kenya has to demonstrate that it has complied with International standards of aviation law and the aviation environment is properly, efficiently regulated to satisfy the United States standards.2On February 2017 the Federal Aviation Authority of the United States of America granted Kenya a Category 1 status. This paper seeks to trace and lay down the aviation legal framework regulations and steps Kenya has taken to comply with the International legal standards. To determine whether it has complied with the same and is capable of maintaining its Category one status. In order to do I shall look at the various International laws and compare them to the Kenyan legal framework. To determine whether it has complied with the same and is capable of maintaining its Category one status. The study shall entail mostly desk work research URI: http://repository.daystar.ac.ke/xmlui/handle/123456789/3114 Files in this item: 1
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Wekesa, Moni (African Technology Policy Studies Network, 2006)
[more][less]Abstract: The African Technology Policy Studies Network (ATPS) is a multi-disciplinary network of researchers, policy makers, actors in the private sector and other end-users interested in generating, promoting and strengthening innovative science and technology policies in Africa. With a regional secretariat in Nairobi, the network operates through national chapters in 23 African countries, with an expansion plan to cover the entire sub-Saharan Africa. One of the objectives of the network is to disseminate research results to policy makers, legislators, the organized private sector, civil society, mass media and farmers’ groups through publications, dialogue and advocacy. Among its range of publications are the Working Paper Series (WPS), Research Paper Series (RPS), Special Paper Series (SPS) and the Technopolicy Briefs. Technopolicy Briefs Series are commissioned short papers written by experts from all over the world specifically to address current science and technology policy concerns and questions in Africa. The briefs are also summaries of technical papers published under our WPS, SPS and RPS written to highlight significant policy recommendations. These briefs are written with the busy policymakers and non-specialists in mind. The materials are designed for general readership and help advance the advocacy and knowledge brokerage roles of the ATPS. ATPS is supported by a growing number of donors including the International Development Research Center (IDRC), the Carnegie Corporation of New York, the Rockefeller Foundation, the World Bank, the OPEC Fund, Ford Foundation, Coca-Cola Eastern Africa, the African Development Bank, and the Royal Dutch Government URI: http://repository.daystar.ac.ke/xmlui/handle/123456789/3113 Files in this item: 1
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Wekesa, Moni (University of Nairobi, November 12, 2010)
[more][less]Abstract: Doping in sport is a global menace. By end of 2009, fourteen Kenyans from diverse sports disciplines had tested positive for various prohibited substances. The need for regulation is informed by the desire to protect the health of athletes, to protect the spirit of sport and to protect Kenya’s reputation as a top sporting nation. Efforts at regulation by sports bodies alone have been unsuccessful. Kenya has no anti-doping law in place. This work seeks to answer two questions: firstly, whether anti-doping law is necessary to regulate doping in sport, and, secondly, whether, in the case of Kenya, anti-doping law is necessary. This work is a desk study in which books, journal articles, Newspaper articles, international instruments, statutes and case law were analysed. Interviews with selected renowned sportspersons were also conducted. This work explores the interplay between law, science and sport. This work made several key findings which include, firstly, that none of the authors on the subject of doping and or regulation of doping has considered anti-doping law. Secondly, sports bodies have inherent structural weaknesses which make their anti-doping efforts ineffective. Thirdly, some of the causes of doping in sport such as commercialization and overproduction of prohibited substances have not been addressed in the current anti-doping efforts. Sixthly, that Kenya has no regulatory framework for anti-doping in place. It is concluded that anti-doping law is necessary in the regulation of doping in sport and that much more needs to be done besides the law. It is recommended that Kenya formulates a broad based anti-doping policy to facilitate the development of an anti-doping law. URI: http://repository.daystar.ac.ke/xmlui/handle/123456789/3112 Files in this item: 1
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Wekesa, Moni; Onsongo, J. (British Journal of Sports Medicine, 1992)[more][less]
Abstract: The Kenyan team that competed at the International Summer Special Olympics comprised 38 athletes (both men and women) selected from all competitors at the national championships. The team was examined and a physiological fitness test carried out. The results enabled the organizers to arrange for treatment of prevailing illnesses, and the training programme was adjusted to the athletes' level. This team was voted the best team of the month of July, having won 33 gold, three silver and two bronze medals. Sound medical care of athletes should be taken before and during competition. Such management should aim at minimizing injuries and enabling athletes to perform at their best. URI: http://repository.daystar.ac.ke/xmlui/handle/123456789/3111 Files in this item: 1
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Wekesa, Moni; Asembo, J M; Njororai, W W S (British Journal of Sports Medicine, 1996)[more][less]
Abstract: Objective-To investigate injuries in international rugby football. Methods-All injuries that led to temporary stoppage of the game or to the substitution of a player during the Rugby World Cup qualifying tournament were recorded. Six matches were played, involving the Arabian Gulf, Kenya, Namibia, and Zimbabwe. Results-47 injuries were recorded, giving an injury rate of eight per match. The number of injuries decreased from 38-3% in the first matches to 23-4% in the final ones. The most serious injury was a concussion and the majority of the injuries affected soft tissues. Anatomically, the lower limbs suffered most injuries (46-80/6), followed by the head (21-3%), trunk (17-0%), and upper limbs (12-8%). Slightly more injuries occurred in the defensive half of the field of play (53-2%) than in the offensive half (46.8%). More injuries occurred in the second half (61-7%) than in the first half (38.3%). Conclusions-Protective equipment should be introduced to miniimise the number and seriousness of injuries in rugby. URI: http://repository.daystar.ac.ke/xmlui/handle/123456789/3110 Files in this item: 1
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Wekesa, Moni (Nigerian Journal of Clinical Practice, January 30, 2015)
[more][less]Abstract: Unregulated biomedical research has previously caused untold suffering to humankind. History is full of examples of abuse of animal and human subjects for research. Several codes and instruments have been formulated to regulate biomedical research. In Kenya, the Science, Technology and Innovation Act, 2014, together with the Constitution of Kenya, 2010, provide a fairly robust legal framework. Possible challenges include capacity building, overlap of functions of institutions, monitoring and evaluation, scientific/technological advances, intellectual property rights, funding for research, and dispute resolution. It is hoped that the new legislation will adequately address these challenges. URI: http://repository.daystar.ac.ke/xmlui/handle/123456789/3109 Files in this item: 1
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Now showing items 21-39 of 39