Ushwin Khanna

BACKGROUND

Ushwin Khanna is a Consultant with Anjarwalla & Khanna. His practice focuses mainly on civil and commercial litigation, admiralty and maritime law, appellate practice, commissions of inquiry and alternative dispute resolution. He has been a member of a task force appointed by the Attorney General to review all maritime laws in Kenya.

Ushwin obtained his LL.B from the University of Nairobi and a postgraduate diploma from the Kenya School of Law.  He is a member of the Law Society of Kenya.

Ushwin is also a Certified Professional Mediator (PM) having completed a course with Mediation Training Institute (MTI).


MEMBERSHIP IN PROFESSIONAL SOCIETIES

  • Law Society of Kenya
  • International Bar Association (IBA)

PROFESSIONAL QUALIFICATIONS

1973: Kenya School of Law, Postgraduate Diploma, Kenya

1972: University of Nairobi, Bachelor of Law, LL.B,


CAREER SUMMARY

2016 – Date: Consultant, Anjarwalla & Khanna

2000 – 2016: Partner, Anjarwalla & Khanna

1996 – 1999: Partner, Anjarwalla Abdulhusein & Co Advocates

1986 – 1993: Partner, Bryson Inamdar & Bowyer Advocates

1982- 1986: Partner, Hamilton Harrison & Mathews (Merger between Bryson Inamdar & Bowyer Advocates)

1974 – 1978: Partner, Veljee Devshi & Bakrania


AWARDS AND ACCOLADES

  • Ushwin was recognised by Chambers Global 2016 as ‘appears as notable practitioner’.
  • Voted as winner in the category of  Litigation & dispute resolution – Kenya  by Lawyer Monthly Legal Awards 2015.
  • Voted one of the best litigation and maritime Lawyers in Kenya – Best Lawyers International 2014

AREAS OF EXPERTISE

  • Admiralty Maritime & Shipping
  • Litigation and Dispute Resolution

LANGUAGES

  • English
  • Kiswahili

LOCATION

  • Mombasa

TOP MATTERS

  • Acting for Geyser, a BVI registered company that owns a parcel of valuable land in Miritini near the Mombasa port. The land was intended for the expansion of the Global Tea factory, the second largest user of the port and the maker of world famous tea brands such as Kericho Gold and Typhoo. The land is subject to compulsory acquisition by the National Land Commission (NLC) on behalf of Kenya Railways for the Standard Gauge Railway (SGR), a Vision 2030 project. A&K was involved in drafting submissions for the compensation hearing, attending the hearing and making oral representations. The Mombasa County government subsequently objected to the validity of our title and the NLC initiated a separate review of the same, where we attended the review hearing and made oral submissions as to the validity of title. We filed a constitutional petition for breach of the right to property as no award had been made and there has been unreasonable delay. We obtained an interim injunction from the Mombasa High Court preventing entry onto the land pending trial. China Road and Bridge Co (CRBC), the main contractor for the SGR, trespassed onto our client’s land after the injunction and we have filed contempt proceedings against the MD of CRBC, the MD of Kenya Railways and the chairman of the NLC. Since that time, the NLC has made a formal award for our client’s land and compensation for the damaged boundary wall, which we have accepted. However, the contempt proceedings are ongoing. The NLC has also gazetted a fresh notice to acquire more of our remaining land and we await notice of the compensation hearing for the same. We have not received payment under the first award and intend to proceed to Court if the same is not paid shortly.
  • Acting for the Petitioner in this case, that has built 73 holiday apartments along the beach and is being denied access to the beach by the respondents who have acquired two plots over riparian land and which titles the Petitioner seeks to have nullified. In a Constitutional Petition filed in the High Court at Mombasa the Petitioner claimed that a right in the Bill of Rights had been denied and infringed by the Respondents and it sought several remedies under Article 23 of the Constitution of Kenya, including various declarations, permanent and mandatory injunctions and orders of judicial review. The Respondents opposed the Petition on a number of grounds, including locus standi and time bar. The High Court allowed the Petition, granted the declarations, injunctions, judicial review orders and costs. The Respondents however successfully appealed the decision before the Court of Appeal on several grounds, inter alia, that the High Court Judge was wrong to judicially review administrative actions which occurred over 20 years ago, thereby applying Article 47 of the Constitution, relating to fair administrative actions, retrospectively. The Court of Appeal held that the entire Petition was anchored on the provisions of Article 47, and that the said Article was not retrospective in nature. The Petitioner has now appealed to the Supreme Court by way of a Petition for interpretation of Article 47 and for the Court to decide whether or not, in the circumstances and facts of the Petition, the Article can operate retrospectively. A&K has been active throughout the proceedings from the inception and the matter is important as it involves several issues of Constitutional law including the interpretation of the provisions of the Constitution by the Supreme Court. A&K is acting for the Petitioners in the High Court, the 1st and 2nd Respondents in the Court of Appeal and now for the 1st and 2nd Appellants in the Supreme Court.
  • Reviewing the maritime laws including the Carriage of Goods by Sea Act Cap. 392, The Merchant Shipping Act, 2009, The Admiralty Jurisdiction Bill, Kenya Ports Authority Act (Cap 391); Maritime Zones Act (Cap 371); the Marine Insurance Act (Cap 390) the Lakes and Rivers Act (Cap 409); the Ferries Act (Cap 410) and making recommendations for appropriate legislation to replace or amend various provisions of the maritime law statutes.
  • Examining and reviewing the relevant pollution prevention conventions and existing environmental legislation with a view to establishing a co-ordinated and comprehensive marine pollution regulatory regime.
  • Examining and reviewing the current legislative framework governing the admiralty jurisdiction of the Kenya High Court in respect of matters arising on the high seas or in territorial waters in Kenya with a view of safeguarding Kenya’s international interests.
  • Making recommendations on proposed legislation to consolidate admiralty jurisdiction within Kenya and drafting a proposed Admiralty (High Court Jurisdiction) Bill for consideration and future enactment.
  • Making recommendations on proposals for reform or amendment of maritime laws and their implementation in line with international conventions and recommendations of International Maritime Organization (IMO) and other treaty instruments and protocols to which Kenya is a party.
  • Represented a company for recovery of salvage claims where the Court was asked to consider whether it had admiralty jurisdiction to entertain the claim and whether the claim was one of towage where no maritime lien arose.
  • Representing a large company on its tax dispute with the Kenya Revenue Authority in a local committee tribunal and subsequent appeal to the High Court.
  • Handled various matters relating to Multimodal and Transport litigation including claims or defences filed in respect of short landing or damage to clients’ goods being transported by road and claims for demurrage charges for delays in discharging containerized goods from vessels or return of containers under the terms of contract.
  • Advising on claims or defences relating to cargo claims arising from Bills of lading in respect of loss, damage or short delivery of goods by sea where the Hague/Visby Rules apply.
  • Reference to arbitration in respect of disputes arising under contract for delivery of goods to the consignee.
  • Advising on Charterparty Agreements.
  • Advising on clearing and forwarding of goods from the port in the event of disputes and claims arising therefrom.
  • Advising on bailment and warehousing agreements and disputes arising therefrom.
  • Undertaking a due diligence on the litigation portfolio in connection with an acquisition of one of the largest horticultural and floricultural companies in Kenya.
  • Advising various clients on risk mitigation processes and procedures concerning litigation management including advising on suitable reporting structures, procedures for appointment of advocates and the preparation of litigation monitoring templates.
  • Representing the Speaker of the National Assembly and the Parliamentary Select Committee appointed by the House before a Constitutional Court on issues relating to Parliamentary Privilege and Separation of Powers.
  • Advising on and defending a claim brought by cargo interests on behalf of owners of a vessel which had been highjacked by pirates and eventually released on a large ransom payment whereupon general average was declared.
  • Arresting bunkers on board a vessel and for delivery up of bunkers which were taken on board due to default of payment by the Charterers following a dispute between the vessel owners and Time Charterers.
  • Arresting a vessel for security in respect of a dispute referred to a London Arbitration and thereafter arranging for a judicial sale and determination of the creditors’ claims on priorities.
  • Defending an Admiralty Claim and obtaining release from arrest a vessel under demise charter in respect of cargo damage caused by an explosion on board.
  • Advising and representing several International Ship Owners and Shipping Line Agents in a Constitutional Petition to declare some sections and regulations of the Merchant Shipping Act, 2009 Cap. 389 Laws of Kenya (Act) as unconstitutional. The Petition has been successfully determined in favour of the Petitioner by the Constitutional Court, which has declared the various sections and the regulations of the Act as unconstitutional.
  • Advising and defending a limitation claim brought by a dredger which damaged a submarine fibre optic cable and disputing the limitation fund constituted by the Plaintiff under the provisions of the Merchant Shipping Act, 2009, 389, Laws of Kenya.
  • Acting for ship owners in disputing the Admiralty Court’s jurisdiction to hear and determine an action in rem on the grounds that the Admiralty Jurisdiction had not been invoked nor had the mandatory practice directions been complied with following the arrest of their vessel.

 

Njeri Kariuki

Njeri is an advocate who has specialised in resolving disputes through arbitration and ADR. During the course of her career, she has delivered awards as a sole arbitrator spanning the petroleum, insurance, banking, industry & corporate sectors, mainly in the domestic arena. Njeri has also sat on several three panel tribunals, as co-arbitrator, determining disputes in similar sectors. Besides being an arbitrator, Njeri is also an accredited mediator and is listed as a trainer & a tutor of several courses with the AFL of the Chartered Institute of Arbitrators. In addition, Njeri currently chairs a Dispute Ajudication Board set-up to midwife an international geothermal project to fruition. In her primary profession as an advocate, Njeri takes on, in the main, non-contentious matters in the realm of real estate (conveyancing) law, probate & succession, commercial contracts, company/business formations & company secretarial matters.

WORK HIGHLIGHTS

·         Nomination by the Government of the Republic of Kenya to the Panel of Arbitrators at ICSID

·         Attaining Chartered Arbitrator status in 2008

·         2014, 2015 & 2016 Citations in Chambers Global as a Leading Individual

·         A Citation in the 2015 Edition of Euromoney’s Expert Guide on Commercial Arbitration

·         Appointment in 2015 as a Recommended Attorney by Global Experts

CAREER

Trained with Kaplan & Stratton, Advocates (1987/88) and was admitted to the Kenyan Bar in December 1988. Associate with Walker Kontos, Advocates 1988-1990; Partner, Walker Kontos, Advocates 1990- 1992. Proprietor of Njeri Kariuki Advocate since 1993 and a Chartered Arbitrator since August 2008.

PROFESSIONAL MEMBERSHIPS

Committee Member of the Kenya Branch of the Chartered Institute of Arbitrators; Member of the Law Society of Kenya & East Africa Law Society, FIDA; Fellow of the Institute of Certified Public Secretaries of Kenya; Fellow of the Chartered Institute of Arbitrators; Member, LCIA African Users Council, Member, Dispute Resolution Board Foundation; Member, ICCA.

PUBLICATIONS

Njeri has published on international commercial arbitration, commercial mediation and litigation.

EXPERT IN THESE JURISDICTIONS

World-wide as an arbitrator and adr practitioner; Republic of Kenya.

PERSONAL

After a two year stint at the University of Nairobi, Njeri completed her BA at York University, Toronto, then went on to study Law at Queen’s University, Kingston, Ontario. Njeri holds a Diploma in International Commercial Arbitration (CIArbn., Keble College, Oxford) and lives in Nairobi all year round where she thoroughly enjoys the company of her 3 children. She is a travel, kick-boxing & power-walking enthusiast.

 

Charles Waweru Gatonye

With over 30 years of experience, founder of the firm & Senior Partner Mr. Charles Waweru Gatonye is widely regarded as a “high-class and outstanding lawyer” in his field of commercial litigation. He graduated from the University of Nairobi in 1974 with L.L. B (Honours). He is also an advocate having worked in the office of the Attorney General and rose to become a deputy to the then Director of Public Prosecutions.

He is a member of the Law Society of Kenya, the National Advocates’ Disciplinary Committee, East Africa Law Society, international Commission of Jurists as well as the International Chartered Institute of Arbitrators. He is also a Certified Public Secretary. He has had the singular honour to be appointed by His Excellency the President of Kenya as an Assisting Counsel to the just concluded Goldenberg Inquiry investigating the loss of billions of shillings of public funds.

Mr. Gatonye was also appointed by the Central Bank of Kenya as lead counsel to the Commission of Inquiry into the sale and transfer of the Grand Regency, (the Kimunya Commission).

He has a lot of experience in court work and has litigated at the highest levels in our country. Some of the big litigations Mr. Gatonye has handled in the past include Central Bank of Kenya Versus Uhuru Highway Development Authority worth KShs 13.5 billion and Block Hotels Holdings Versus Kamlesh Pattni, again worth billions of shillings. He is currently involved in a number of litigious briefs for the Kenya Revenue Authority relating to unpaid taxes for sums of more than USD 45 million.

Waweru Gatonye & Company Advocates

Established in May, 1985, Waweru Gatonye & Company Advocates has built a name for itself as one of Kenya’s finest commercial practice firms.

The firm maintains a very good team of litigators and has made an impression in several important fields, including corporate/commercial litigation, conveyance & property matters and arbitration. Specializing in commercial litigation as well as conveyance & property matters, the firm provides pragmatic, solution driven services that add value to our clients’ businesses.

The Firm has grown rapidly in recent years, and embraces an internal culture of motivation, commitment, enthusiasm, and reward. For our clients, their interests are paramount and with that in mind, we offer sound commercial legal services, delivered with total professional commitment. For our employees, we have created an environment of energy, expertise, reward and enthusiasm.

Our objective is to provide professional and excellent legal services and advice while remaining sensitive to the clients’ needs and professional ethics. We aim at being efficient, remaining faithful to the law while sustaining professional relationships with our clients.

 

Benjamin Musau

Benjamin Musau is a Kenya Advocate and the Managing Partner of B M Musau & Co., Advocates, a position he has held since 1999.  He has previously been a Partner in Kaplan & Stratton, where he worked since 1988.  His work encompasses tax legal, regulatory reforms, county government law and reform, reduction of administrative burdens, the structure of business entities, joint ventures, acquisitions, banking, foreign investment, corporate and commercial law, complex litigation and alternative dispute resolution (mediation, negotiations and arbitration).

Ben led the Local Government 2008-2010 World Bank financed Subnational Competitiveness Study of Local Governments, a precursor to the transformation of local governments to County Governments under the Constitution of Kenya, 2010.

He spearheaded the 2005-2008 Regulatory Reforms for Business Activities in Kenya (financed by the World Bank through the Ministries of Finance and Trade & Industry) which have led to substantial reduction of red-tape in Kenya.  This work involved working closely with state corporations, national government regulators, ministries, local and municipal governments in Kenya to review and reform government licenses, rules and regulations, and subjected the Single Business Permit along with other national, local and municipal licenses and permits to careful local, regional and international scrutiny and reform.  The Single Business Permit constituted a substantial portion of income for the then local authorities in Kenya, and there was great private sector pressure to delete it.  Ultimately, it was agreed to reform the Single Business Permit substantially and to gradually replace it with a local business tax collected on behalf of local authorities (now County Governments) by the Kenya Revenue Authority.

The 2005-2008 Regulatory Reforms work entailed the review of all the laws, rules and regulations in force in Kenya at that time, and the publication of the first ever list of business licenses obtaining in Kenya in 2007.

Ben’s regular work also involves corporate commercial legal work and complex litigation including alternative dispute resolution.

Ben is involved in the initiatives to Brand Kenya.  He was invited by the Marketing Society of Kenya and gave the first paper from a legal perspective of branding Kenya while he has subsequently been involved in providing legal expertise which led to the publication of the Investors Guide to Kenya by UNCTAD.  He is also involved in a number of World Bank Group supported regulatory reform improvements in Sudan, Tanzania, Madagascar and Bangladesh, among others.

Ben has acted as a consultant for KIPPRA and the Kenya Law Reform Commission in facilitating a retreat for business people and Government representatives on the challenges to investment in Kenya.

He has made in-depth study on international taxation and financial services law involving current trends in international compliance (anti-money laundering, anti-corruption and counter terrorism financing), international tax and tax treaties, anti-avoidance legislation and tax risk management, global e-commerce taxation, financial instruments, law of banking and financial institutions, international legal research and writing, information security and cybercrime law, , and wrote a Thesis in 2011 on the Extent to Which Kenya Had Implemented the then 40+9 (now consolidated 40) FATF Recommendations on Anti-Money Laundering and Counter-Terrorism Financing.

Benjamin is currently a candidate for the award of Ph.D on the topic of anti-money laundering, anti-corruption and counter-terrrorism financing within the context of international taxation and financial services law.

Ben is involved in the initiation of Continuing Legal Education for lawyers through the Law Society of Kenya where he has given initial CLE courses based on Managing a Law Firm and Case Management.

Benjamin is currently training the Kenya Police on anti-money laundering, anti-corruption and counter-terrorism financing.

Benjamin is currently a lecturer at the University of Nairobi, School of Law.

 

Amyn Mussa

Amyn Mussa is a partner and head of the energy and infrastructure group at Anjarwalla & Khanna (A&K), one of the premier law firms in Kenya and East Africa. Under Amyn’s leadership, A&K has developed a dynamic energy practice and is regularly engaged on the most significant power and infrastructure projects in Kenya. Amyn acted for the sponsors of the 310MW Lake Turkana Wind Power Project (LTWP), the largest power generation project in Kenya. LTWP won the Project Finance International Award for African Renewable Energy Deal of the Year 2014, as well as the African Renewables Deal of the Year at the IJGlobal Awards 2014 for Europe & Africa. He also acted for the government of Kenya on its first ever PPP coal concessions.

Amyn’s clients include Quantum Power, General Electric, Ormat, Transcentury, Symbion Power, IFC, AIIM, Mitsui, Toyota Tsusho and Google. With over 18 years of experience, Amyn is consistently recognised by international directories, including The Legal 500, IFLR1000 and Chambers Global, which identified him as “one of the leading guys in energy work in Kenya” (2014) and praised him for “his energy and projects expertise” (2015). Amyn has also handled groundbreaking real estate projects in the region, including Two Rivers, Centum Investment’s 100 acre mixed-use development, the largest of its kind in Kenya, and Garden City which will include the largest retail outlet in Kenya. In addition, Amyn is active in the oil and gas sector, representing leading companies such as Tullow and Africa Oil. Amyn is an advocate of the High Court of Kenya and graduated from the University of Houston Law School.