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Child custody conundrum: legal implications, best interest mandate, and the case for child - inclusive mediation
No full textFull - text undergraduate research projectIn divorce processes, resolving custody conflicts can be difficult, especially when considering the child's best interests. Child-inclusive mediation has gained preeminence in recent years as a way to guarantee that children's opinions and views are heard and taken into account when making custody decisions. The purpose of this study is to evaluate the viability and effectiveness of requiring child-inclusive mediation in custody disputes. There are several benefits associated with child-inclusive mediation, such as enhanced parent-child communication, a greater comprehension of the needs and preferences of the children, and a higher rate of parental adherence to custody agreements. In addition, children indicate that they want their opinions to be respected and heard during the custody process, which could have a good effect on their mental and emotional health. This dissertation makes the case that efforts to put the best interests of the child first should give careful thought to enacting a policy that requires child-inclusive mediation, even while it acknowledges the difficulties and possible drawbacks of doing so. In the end, encouraging child-centred methods of resolving custody disputes is crucial to guarantee just and equal results that put the welfare of divorced children first
Apprehension of bias treadmill: critiquing the Popat decision in light of the Capital Market Authority’s enforcement mandate
No full textFull - text undergraduate research projectSociety ascribes value to the law based on its utility within society. Any such law that potentially jeopardizes the growth, development or welfare of a society is often faced with criticism and backlash. Legal decisions are no different: their value is contingent on their ability to solve societal problems and increase overall happiness. This standard remains the same for the Al Nashir Popat and others v CMA Supreme Court’s decision in 2020: its value is contingent on how it solves the existing problems and thereby increasing net happiness. This article analyses the Popat decision in light of the CMA’s enforcement mandate. The decision gives the solution on mandatory delegation under Section 11A of the Capital Markets Act. The paper argues that while the rationale behind it is proper, the mechanism under Section 11A does not deal with the recurrent problem of apprehension of bias. As a matter of fact, the solution may well exacerbate the hurdles to be faced by the regulator in the discharge of their mandate. The impact may be that investors and the regulator fall behind in ensuring market safety, while the errant market players benefit. The paper juxtaposes the current situation with the bi-furcated model in Canada’s Quebec territory, and how they have been able to deal with the problem of apprehension of bias. The paper suggests that Kenya should adopt a similar model of bi-furcation so as to curb the existing problems of bias
Consumer protection in the realm of decentralised virtual currencies: a comparative analysis of South Africa and Kenya’s regulatory approaches
No full textFull - text undergraduate research projectInnovations in technology have evolved in different fields that exist. The financial world has witnessed a disruption introduced by virtual currencies such as Bitcoin, Litecoin and Ethereum. They have emerged as digital representation of financial value alongside fiat currencies. Virtual currencies operate on blockchain technology, allowing for peer-to-peer transactions without central government intermediaries, such as central banks. Despite their increasing popularity in Kenya, the decentralised nature of these virtual currencies has posed a great challenge in terms of consumer protection and in terms of investment security. The study’s aim is to investigate the risks and regulatory challenges posed by virtual currencies, by comparing the approaches adopted by Kenya and South Africa. The interest of the comparison is that both countries have had the need to find a regulatory solution in order to mitigate the risks that come with DVCs. This study will use the conceptual framework called the libertarian- public interest. The choice of the concept is determined by the fact that it combines the libertarian idea of disruptive innovation and public interest, which is the foundation of consumer protection. Through a qualitative, desk-based methodology, the study will analyse the distinct nature of decentralised virtual currencies, including their major characteristics such as anonymity and fraud risks. The study will use data from primary sources such as the Constitution of Kenya to relay the rights of consumers, and the various statutes of the selected countries under the scope of approach and decisions of courts in matters related to disruptive technology. Further, the study will utilise the secondary sources such as books, scholarly articles, reports from renowned financial organisations and research papers to bring out the general approaches. The research hopes to demonstrate the appropriate regulatory approach that would balance the disruptive nature of DVCs and the protection of its consumers
Finding a balance: machine learning in bail and bond
No full textFull - text undergraduate research projectThis paper seeks to assess whether Machine Learning can address the existing gap in the determination of bail and bond by focusing on the causation and correlation of the cognitive bias of judges and the wide-ranging discretionary power they wield. The paper shows that the heavy reliance on pretrial detention occasioned by cognitive biases breaches the rights of accused individuals and heavily impacts their right to a fair trial. This results in subversion of justice, weakening the criminal justice system and, by extension, the rule of law. The paper then argues that machine learning devoid of the corporeal limits of human cognition, can streamline the bail process ensuring that the rights of accused persons are preserved. The paper relies on the principle of fairness to work out the minimums that the Kenyan Law should provide for the integration of machine learning algorithms. The paper contends that players in both the justice and technology sectors need to ensure that the use of machine learning algorithmic systems is well-regulated and in correspondence with the rule of law and the principles of fairness
The Digital locksmith: the regulation of indirect collection of personal data
No full textFull - text undergraduate research projectMany civilizations have relied on data collecting and usage throughout history. As time progressed, so did the techniques for data gathering, storage, and sharing. The reason behind this achievement being computers and the Internet. Today, data is one of the most lucrative commodities on earth. Not only does data promote innovation, but also productivity, efficiency, and growth in the global economy. ‘Big data’ is the accumulated large volume of information that has the potential to be mined for information and used. One of the biggest data collectors in the world today is the telecom sector. Telecommunications companies can acquire much more data as mobile phone usage grows. Due to the ease of collecting data directly or indirectly from data subjects, the laws governing the same should be as specific as possible. This study will look at the ambiguity of the phrase "interests" as used in the Data Protection Act. Addressing this gap will benefit lawmakers who are developing measures to fill the gaps that have stemmed from the Data Protection Act. Moreover, it is important for telecom firms to understand the importance of valuing data protection
Examining the use of post nuptial agreements: an analysis of the incorporation of post nuptial agreements in the matrimonial property regime of Uganda.
No full textFull - text Undergraduate research projectThe right to own property has been recognized and protected under the Constitution of Uganda under Article 26 as well as other international instruments. The specific area to be discussed is matrimonial property. The allocation of matrimonial property is regulated by Article 31 of the Ugandan Constitution, along with other international agreements and legal precedents. Due to the absence of guidelines, the discretion exercised by the court has been abused by judicial officers in certain situations and this has led to injustices. In view of this, the court’s discretion needs to be guided so that more fair and equitable decisions are rendered by the courts. The paper builds a case for post nuptial agreements to bridge the gap in the matrimonial property regime of Uganda. The study recognises that these agreements act as guiding principles for courts which would prevent the abuse of their discretion without ousting their jurisdiction.
Keywords: Matrimonial Property, Post nuptial agreements, Ugand
Medical negligence: making a case for the Bolitho test in determining negligence cases in Kenya.
No full textFull - text undergaduate research projectIn Bolam v Friern Hospital Management Committee the Bolam test was set out for breach of duty of care to be constituted by acting contrary to standard of procedure which comes from the opinion of a body of expert opinion. The problem with this was the weight that it gave an expert opinion was greater than all other evidence that is produced before the court and solely focused the court on established practice. The Bolitho test from the case of Bolitho v City and Hackney Health Authority, came as a replacement for the test with its focus on the reasonableness of practices undertaken in the delivery of medical care, its focus shifted from what ought to be done in a situation ignoring the unique variables and went to whether the actions undertaken considered the patient’s safety regardless of the body of expert medical opinion being in contradiction. In Kenya, the standard test for the determination of negligence is the use of the Bolam test as seen in the case of Trustees Registered Maua Methodist Hospital v Penina Thirindi Koome (Suing as the Legal Representative of Rooney Mutharimi (Deceased) where the test was restated that breach of duty of care arises from the deviation from the normal practices to be determined by a responsible body of opinion of medical practitioners. This test has been restated in a majority of the cases of medical negligence with courts rarely ruling contrary to their opinion
Effect of mobile money and firm size on financial sustainability of SMEs: case of grocery retail shops in Nairobi County
No full textFull - text thesisFinancial sustainability is a critical aspect of the success of SMEs as an unsustainable SME can face significant challenges such as financial difficulties, decreased competitiveness, and even bankruptcy. Though adoption of mobile money services has been theorized to have the potential to improve the financial sustainability of SMEs, the studies conducted are still inconclusive. Majority of the SMEs also still continue to underperform even after incorporating mobile money services. was Against this background, the study sought to establish the effect of mobile money on financial sustainability of SMEs with a special focus on grocery retail shops in Nairobi County. The specific objectives are to establish the effect of mobile money usage, mobile money attributes and mobile money regulations on financial sustainability of grocery retail shops in Nairobi County. The study also sought out to establish the moderating effect of organizational size on the relationship between mobile money services and financial sustainability of grocery retail shops in Nairobi County. The study employs descriptive research design and the targeted population of the study was 10,450 grocery shops in Nairobi County. The respondents were owners, managers, or their equivalents in these grocery retail shops and a sample of 99 grocery shops was selected through simple random sampling. Data was collected using questionnaires and was analyzed using descriptive and inferential analysis. The study established that mobile money usage, money attributes and mobile money regulations had a positive effect on the financial sustainability of grocery retail shops in Nairobi County. The moderating regression model further revealed that incorporating organization size strengthened the impact on the relationship that exists between mobile money and financial sustainability. Moreover, the study denotes that factors such as convenience, security, and efficiency of mobile money transactions are crucial for enhancing the financial sustainability of these shops.Also, larger grocery retail shops may benefit even more from the implementation of mobile money services in terms of their financial sustainability. The study recommends that the mobile service providers should improve on aspects such as security, reliability, convenience, and transparency in mobile money transactions while policymakers and regulators should establish clear and supportive regulations that facilitate the growth and operation of mobile money services