East African Law Journal (EALJ)

MORE THAN MEETS THE EYE: THE IMPACT OF COVID-19 ON FAMILY LAW IN KENYA

Nancy Baraza — 2025-08-27

The advent of the COVID-19 pandemic has tragically unmasked the fragility of all

systems and structures globally. It has proved that the gains of thousands of years are

just one pandemic away from dismantlement. The pandemic has exposed the volatility

of economies, governments, employment, transportation, education, healthcare among

other sectors in the current civilisation. Predictably, the legal field has not been spared

by the grip of the pandemic. Most notable is the closure of court houses in light of

the social-distancing regulations, the emergence of new criminal offences developed

to enforce compliance of COVID-19 regulations, the expansion of human rights law

with regard to the limitation of certain rights, among others. These changes have had

immeasurable implications to the justice system and legal practitioners alike. In Kenya,

mitigating measures such as online court sessions and legal filing have been resorted to.

These have however been coupled with a myriad of challenges. Nonetheless, the impact

is louder in some areas of law more than others. As the effects of the pandemic on contact

law, employment law and other public law matters are widely discussed, areas of private

law such as the current marriage regulations amidst the pandemic, shared custody and

visitation rights of children, international adoptions, the operation of domestic violence

restraining orders in times of quarantine among other such issues seem to be left out

of the discussions. To this end, this paper specifically probes the reality of these private

law issues in times of COVID-19. It discusses the effects that the pandemic has had on

specific areas of family law in Kenya in view of the changes occasioned by the pandemic

and suggests a way forward.

THE CONCEPT OF PERSONHOOD, WOMEN AND THE LAW IN KENYA

Esther Kathini Kyalo — 2025-08-27

Women are always becoming and belonging to by evolving from daughters, sisters,

mothers, wives and widows.Personhood in Africa is tied to the family, the community

and it is also spiritual. It is never defined in isolation; it is defined in relationships. This

idea of communal living prevalent in Africa has intrinsic value; it is a product of African

humanism which is concerned with the preservation of life, systems and order.

All these

stages of life women go through are communal rather than individual. While African

feminism embraces and celebrates women through their life cycle, it is evident that women

are disproportionately affected by these relationships through customs, traditional values

and beliefs, religion and the law. Therefore, the purpose of this article is to interrogate

how the concept of personhood in Kenya is defined and interpreted through a woman´s

life cycle and how it reflects in law and its implication to the economic status of women.

African and legal feminist frameworks will be used to discuss the concept of personhood,

its interpretation from the different standpoints, challenges women face as a result and

lastly, strategies that women use to overcome these challenges. This article aims to show

the interrelationship and importance of taking into consideration the multifaceted nature

of becoming from an African woman´s standpoint, how we define and interpret women

in law, their voices and experiences as individuals capable of being their own person and

how legislations can be made to reflect these lived realities of African women to promote

their economic status.

TRAVELLING CUSTOMARY LAW: CULTURAL IDPS AND INFORMAL JUSTICE SYSTEMS IN INFORMAL SETTLEMENTS IN NAIROBI-KENYA

David Otieno Ngira — 2025-08-27

Most research on customary law are generally domiciled within rural spaces. This

article departs from this notion and explores the prevalence of customary law in

urban areas in Nairobi. It explores the nature of customary law and informal justice

systems in urban spaces and examines the underpinning factors that emerge from its

transmission from rural to urban informal settlements. Part one of this paper provides

the background for customary law and informal settlements. The second part explores

the study methodology. Part three examines the nature of informal justice in urban

informal settlements and maps out the actors, principles and modes of transmission of

customary laws from rural to urban areas. The section also explores how violators of

customary law in the rural areas often seek refuge in the urban informal settlements. The

paper concludes by revisiting the role of customary law in the proliferation of informal

settlements in urban areas and how ethnic cosmopolitanism in informal settlements

promote the cross-pollination of customary laws.

PREVENTING AN INFODEMIC DURING A PANDEMIC: COVID-19 AND MEDIA PERFORMANCE IN KENYA

Collins Odete — 2025-08-27

In the year 2020, the deadly coronavirus (COVID-19) disease ravaged the entire

world and brought countries and their entire operations to a standstill for almost the

entire year. With no known cure, the only arsenal that countries had to address this

virus was through travel restrictions, social distancing and wearing masks. Against

this background media became an important tool in the fight against the pandemic,

becoming a critical source of information to citizens and medium of communication by

Governments. Kenya recognizes the importance of media in governance. Consequently,

Article 33 of the Constitution guarantees to the media freedom and independence to

enable them collect and disseminate information without any control or hinderance.

This right is particularly important during a pandemic such as COVID-19, where

Governments can be tempted to limit such access. However, in enjoying this right, the

media is expected to ensure that they play a positive role in the process of addressing the

pandemic and not to exacerbate it. The Kenyan media played a catalytic role throughout

the year 2020 as the country grappled with the COVID-19 pandemic and its impacts

on lives and livelihoods, on security and economy and on politics. Against the above

background, the paper seeks to assess how the pandemic affected the realization of media

freedom in Kenya and secondly the performance of the media in reporting about the

pandemic. Did it exercise its rights and freedoms responsibly? What lessons does the

country learn from media’s coverage? How facilitative was the regulatory framework?

The paper argues that media’s role in providing information is essential for addressing

disasters as such it requires to be regulated in a such manner that enables it deliver on

its fundamental mandate without undue restrictions.

MAINSTREAMING CROSS-BORDER ARBITRATION AT THE EACJ: ROLE OF INTELLECTUAL PROPERTY IN REGIONAL INTEGRATION

Eugene Otieno Owade — 2025-08-27

Although the East African Court of Justice (EACJ) has arbitral jurisdiction over
international commercial disputes, little to no attention has been paid to how this
jurisdiction can be effectively harnessed for the resolution of cross-border intellectual
property (IP) disputes among East African Community (EAC) member states. This
paper acknowledges and appreciates that various communities in the EAC bloc share
cultural values, practices and beliefs which constituted shared indigenous knowledge as
an intellectual property right. While EAC countries like Kenya have legislation on IP
including the Kenyan Traditional Knowledge and Cultural Expressions Act, 2016, these
laws fail to sufficiently address how to resolve disputes that emerge outside the national
territorial jurisdiction. Further, there are no uniform criteria for determining issues like
cross-border access and benefit sharing (A&BS), promoting sustainable development,
social equity and cultural diversity which may pose challenges when citizens of EAC
member states seek redress for any infringement of individual or collectively owned IP
rights.
A casual view of EACJ’s Reports demonstrates the untapped potential of the EACJ as a
regional adjudicator of cross-border disputes. On the one hand, it may be hypothesized
that EAC member states prefer and trust national as opposed to judicial institutions.
On the other hand, the lack of data on the number of intellectual property disputes
resolved at the EACJ through arbitration, if any, points to legal, regulatory, policy and
jurisprudential gaps which limit the capacity of the EACJ to be a reliable and effective
regional dispute resolution mechanism for IP disputes. Therefore, this paper makes a
case for an expansive application of, the reconceptualization and redefinition of the scope,
nature and extent of the arbitral jurisdiction of the EACJ to promote regional integration
through the amicable resolution of IP disputes within the EAC bloc.