Strathmore Law Review

Editorial

2025-08-06T16:56:13+03:00

Foreword

2025-08-06T15:03:33+03:00

32,000 & Counting: Article 11 of The Constitution of Kenya and the Restitution of Cultural Property

2025-08-06T15:01:38+03:00

Aside from racism, subjugation and violence, colonialism effectively erased many facets of indigenous history. The alienation of cultural heritage was a core mechanism through which this was achieved. Not only did the coloniser enforce his own ‘civilised’ notions of what constituted ‘proper’ society, he engaged in the pillaging of various cultural properties whilst simultaneously advocating for a near complete deletion of traditional life. Seized cultural objects would meander their way to Europe to be displayed, catalogued and famed as ‘curiosities’, the exhibition of the savage; what European excellence sought to ‘correct’ in all its charity. The Constitution of Kenya 2010 aims to foster a society built upon Kenyan culture. Article 11 is the spotlight under which these objectives manifest. The State is tasked with a duty to promote all forms of cultural expression including cultural heritage. This signals a reclamation of the country’s attachment to its roots, to repair what was lost and transmit it to future generations, such that historical cultural deprivation never occurs again. Various communities have pleaded with European countries for the return of their cultural properties. Not many have been successful, owing to various factors and the reluctance on the part of European museums and governments to release these objects. This paper seeks to examine the nature of cultural heritage, particularly cultural property and its importance to the Kenyan situation, highlighting that the State has a duty under Article 11 to engage in restitution efforts of the said properties.

The Place and Limits of Arbitration in Resolving Employment Disputes in Kenya

2025-08-06T15:19:41+03:00

Over the last decade, the viability of arbitration in resolving employment disputes has been a controversial issue, attracting mixed views. Proponents argue that Kenyan law neither delimits the scope of arbitrability nor expressly prohibits the use of arbitration in settling employment disputes. They assert that when parties agree to refer their disputes to arbitration, they are bound by the terms of their contracts and the agreement to arbitrate. Opponents, however, contend that employment relationships are inherently unequal. Employers, who often have more bargaining power, impose terms in an employment contract, including arbitration clauses on employees, who are often unduly influenced, to accept such one-sided terms out of necessity to secure jobs. They also argue that arbitration was intended for commercial disputes, not employment disputes. This paper examines the place and limitations of arbitration in resolving employment disputes in Kenya. It critically analyses the legal framework governing employment arbitration to demonstrate that employment disputes can be resolved through arbitration. The paper also identifies the limitations of arbitration in addressing employment disputes and proposes key considerations for courts when deciding whether to refer such disputes to arbitration. Finally, it offers recommendations to enhance the practice of employment arbitration while safeguarding employees’ rights.

Good Faith, Bad Fate: A Critique of Dina Management Decision on Limits of Constitutional Property Rights Protections in Kenya

2025-08-06T15:23:54+03:00

Land is an unparalleled cornerstone of our identity, cultural heritage, and spiritual resonance and has often dictated the pulse of nationhood. The Constitution of Kenya stands as the supreme arbiter on land matters, rendering all other laws inconsistent with it null and void to the extent of their inconsistency. Article 40 thereunder enshrines property rights, a fundamental human entitlement. However, enforcing these rights fully pivots on the acquisition of a definite title through a successful legal registration process. The land registration system aims to provide secure titles through streamlined registration processes and indefeasible ownership, guaranteeing transparency and preventing fraud. This article critiques the Supreme Court’s decision in the Dina Management case on the conclusiveness of search and the doctrine of a bona fide purchaser. This paper posits that the Dina management precedent narrowly interprets Article 40, thereby imposing undue burdens on bona fide purchasers, who are made to bear the brunt of historical land injustices and flawed registry practices under the guise of the sanctity of titles. This article concludes by proposing impactful legal and administrative solutions to strengthen this cornerstone of property law and crucial human rights in Kenya, ensuring landowners enjoy a robust and secure legal framework.

The Double-Edged ‘Bio-Tech’ Sword – Proposing Legal Solutions for Responsible Synthetic Biology Development in Kenya

2025-08-06T16:08:03+03:00

As the race for Synthetic Biology research and governance heats up between global superpowers like the United States and China, developing countries risk being left behind. To prevent this from happening, it is crucial that such countries, like Kenya, embrace this cutting-edge biotechnology to promote their socio-economic growth. The interest in this area is important, especially for these countries, owing to the immense benefits the novel biotechnology promises. However, the pursuit of Synthetic Biology development must be undertaken with caution, as it poses catastrophic risks, such as engineered or accidental pandemics from pathogen release. This study explores the potential benefits of Synthetic Biology in Kenya, evaluates the risks requiring regulation, and proposes a structure of a potential legal solution that balances the pursuit of bio-innovation with the need to prevent pathogen risks. Through a rigorous analysis, this research seeks to demonstrate that developing countries can effectively manage the risks associated with Synthetic Biology development and protect their citizens by adopting a robust legal and institutional framework. This study’s findings have global implications, as they provide a blueprint for other similarly situated developing countries. The propositions in this paper are a call to action for policymakers to prioritise responsible governance of Synthetic Biology and mitigate the potential catastrophic risks of this revolutionary biotechnology. Being a double-edged sword, this study offers a roadmap to ensure that Synthetic Biology is navigated safely and responsibly.

A Legal Analysis of Sharenting: Balancing Between Parental Freedom of Expression and Minors’ Right to Digital Privacy in Kenya

2025-08-06T15:39:33+03:00

Some parents and/or guardians are actively sharing photographs, videos, and even personal details of their children across various social media platforms in Kenya to share their parental experiences. This concept has been dubbed ‘sharenting.’ This research will employ the interest theory of rights to examine the possible contradiction between children’s ever-evolving right to privacy and parents’ and/or guardians’ freedom of expression on social media platforms. The study promotes a reasonable approach that prioritises the child’s best interests while still acknowledging parental freedom of self-expression. The developing nature of children’s rights and the possible drawbacks of unrestricted online exposure are emphasised. This work examines statutes, case laws, books, journals, and reports about these rights and their various conceptions. It will shed light on Kenya’s legal framework for safeguarding children’s online privacy rights and investigate the possible violations caused by parental online sharing practices. The purpose of this study is to add to the current legal and social debates in Kenya around children’s rights to privacy online, and it stresses the importance of striking a balance between parental freedom of expression and the protection of children’s right to privacy on digital platforms.

Enduring Transience: The illusion of ‘Temporary Finality’ in Construction Adjudication Decisions

2025-08-06T15:43:07+03:00

Construction Adjudication is not adequately regulated in Kenya. Despite its benefits in quickly resolving disputes, it is poorly understood and not widely used except when mandated by a contract or on an ad hoc basis. There are efforts to usher in statutory adjudication, as prescribed in the National ADR policy, through the enactment of a proposed Construction Adjudication Bill to strengthen its legal framework. Indeed, other jurisdictions have utilised Construction Adjudication to streamline dispute resolution and improve cash flow in construction contracts. To achieve this, a statutory adjudication regime rides on unique features that prioritise speed over due process as its decisions are temporarily binding until contested in a final forum. However, these decisions are not always temporary. Some events and circumstances can make them final and binding, potentially leading to unfair and unjust outcomes that may infringe the constitutionally guaranteed right of access to justice. The paper urges caution while establishing a statutory adjudication regime to ensure robust safeguards are incorporated to mitigate these risks. It also encourages legislation that is customised to the specific and unique attributes of the Kenyan construction industry.