Ken Melly

Ken Melly is the Head of the Dispute Resolution Practice at G&A Advocates LLP. He is also the Partner in charge of the firm’s Technology and Innovation Practice which is the firm’s latest addition to its offering. Ken is passionate about International Commercial and Investment Arbitration and is frequently invited to speak on various issues in domestic and international arbitration conferences.

Ken graduated from the University of Cape Town with a Master of Laws, LLM Degree in Dispute Resolution (with distinction), a Bachelor of laws degree from Moi University and a post graduate diploma in law from the Kenya School of Law.

Expertise
Ken has advised and represented numerous clients on a diverse range of matters including:

Arbitration
Successfully represented one of the state corporations in relation to the defence of a claim presented against the parastatal by a downstream affiliate of one of the multinational oil and gas companies where the value of the subject matter was in excess of US$ 45 Million.

Was part of the team appointed to represent the Government of Kenya in a multi-billion dollar investment arbitration claim which was heard by an ICSID Tribunal and determined in favour of the State in an Award delivered by the ICSID Tribunal in October 2018.

Advised an energy sector state entity in relation to a claim by one of the renowned Building and Civil Engineering firms where novel issues arose in relation to the applicability of the doctrine of ‘accord and satisfaction.

Civil and Commercial Litigation
Advised and represented a leading Bank in proceedings commenced by a contractor before the High Court of Kenya seeking enforcement of a Decree of the East African Court of Justice as against the Republic of South Sudan and in the interim for mareva injunctions or furnishing of security in the sum of US$ 51 Million.

Represented the Board of one of the state corporations under the Ministry of water, Sanitation, and Irrigation in court proceedings challenging the decision and process leading to the re-appointment of the institution’s Chief Executive Officer for a further term.

Advised and represented a franchise holder of a South African fast-food brand in relation to insolvency, administration processes and various court actions.

Advised and represented a leading bank in relation to court proceedings instituted by a real estate developer on, among others, contested obligations under various guarantees.

Was part of the legal team that represented a multinational company in a claim involving unfair and unsubstantiated comparative advertising by a competitor in the market. This was a novel matter before the High Court of Kenya touching on competition law, comparative advertising, brand disparagement and consumer protection. The value of the claim was in excess of 1.85 Million Euros.

Representing one of the state-owned entities in defending twenty Petitions filed by alleged project-affected-persons in the Environment and Land Court in Migori where the Petitioners seek compensation, or in the alternative a stoppage of a project carried out by the state corporation as part of its core mandate.

Successfully represented a client in a case against a leading multinational airline in a matter arising from a breach of various obligations in the context of contracts for carriage by air.

Assisted in proceedings for the enforcement of an arbitration Award in respect of a claim by an oil company that sought to recover damages in the sum of US$ 14,000,000 against a supplier of petroleum products. The Court recognised the Award and directed that the same be enforced as a decree of the Court.

Representing a private sector client in relation to an action against a multinational insurance firm arising from the refusal by the insurer to honour certain categories of Directors and Officers Liability insurance.

Advised and represented a petroleum industry operator in relation to disputes concerning possession of strategic business premises in Nairobi where various licensees had sought injunctive orders against the surrender of possession of the premises.

Advisory engagements
Advised a licenced distributor of a leading international alcoholic beverage manufacturer on various business setup, corporate structure and regulatory requirements in relation to its intended establishment of a Kshs. 4.5 Billion facilities in one of Kenya’s Special Economic Zones.

Advised a Somalia based investor in relation to the commercial negotiations and pre-engagement formalities with a Turkish brand seeking to enter into a franchise arrangement for the setting up and operation of a retail fashion outlet.

Advised and represented a key player in the tea industry in challenging subsidiary regulations issued by the Minister for Agriculture, Livestock, Fisheries and Cooperatives. The regulations were ultimately annulled by Kenya’s Senate following the presentation of Memoranda and appearances before the Senate Sessional Committee on Delegated Legislation and the Standing Committee on Agriculture.

Livestock and Fisheries.
Was part of the team that provided legal advisory and contracting support to a transport-sector state corporation which involved reviewing and drafting of commercial agreements, and negotiating of diverse aspects with various contracting parties in relation to one of the country’s multi-billion-dollar flagship infrastructure projects.

Advised and represented a Canadian non-profit organization in relation to the recovery of funds held by a financial institution in Kenya, including in relation to negotiations and regulatory interventions that led to acceptance by the financial institution to release of the funds.

Specialised Tribunals
Currently part of a team that is advising and representing one of the energy sector state corporations in relation to a claim filed before the Public-Private Partnership Petitions Committee in relation to a project valued in excess of US$ 320 Million.

Was part of the team appointed to advise and represent an institution tasked with delivering on one of the flagship Kenya Vision 2030 projects under the Ministry of Information, Communications and Technology in a procurement dispute before the Public Procurement and Administrative Review Board. The dispute was instituted by an unsuccessful bidder that sought to be awarded a Kshs. 1.4 Billion tender for the construction of a conference facility and related infrastructure.

Frequently called upon to advise and represent various categories of clients including County Governments, private sector players, state corporations and sector regulators in various administrative processes and before quasi-judicial Tribunals.

Ken also continues to act for diverse entities entrusted with the carrying out of various regulatory and independent constitutional mandates in sectors such as health, energy, telecommunication, education, trade, aviation, procurement, environment and natural resources, capital markets and financial services.

Election Petitions
Acted as Counsel for the Independent Electoral and Boundaries Commission (“IEBC”) in the Presidential, Gubernatorial, Senatorial and Member of National Assembly election disputes filed in various Courts following Kenya’s 2013 General Elections as well as the August 2017 general elections and October 2017 Fresh Presidential Elections. Some of the disputes progressed all the way to the Supreme Court.

Constitutional and Administrative Law
Currently representing Kenya’s Standards body in proceedings filed against it in the Constitutional Division of the High Court of Kenya challenging legal notices and ministerial directives relating to the destination inspection fees for goods arriving in Kenya without certificates of conformity.

Was part of the team engaged to represent the office of the Attorney General in relation to a constitutional petition challenging Presidential and Ministerial appointments of Chairpersons and Members to various parastatal boards.

Represented the Independent Electoral and Boundaries Commission in several constitutional claims arising from the nomination and gazettement of representatives of Special Interest Groups including the Marginalized Communities and Gender top-up categories.

Was part of the defence team in Judicial Review proceedings filed by a political activist who sought to challenge the Report of the Presidential Taskforce on State Corporations. The High Court agreed with the preliminary issues raised and dismissed the matter with costs.

Memberships and Affiliations

• Law Society of Kenya
• International Chamber of Commerce- Young Arbitrators Forum (“ICC-YAF”).
• Institute of Certified Secretaries of Kenya
• Young International Arbitration Group (“YIAG”)
• International Council for Commercial Arbitration, (“ICCA”)

Select Publications and Speaking Engagements
Chapter titled “The Attitude of Kenyan Courts towards Arbitration“, in E. Onyema (Ed.) Rethinking the Role of African National Courts in Arbitration, Kluwer Law International, 2018.

A Momentous Step: Kenya establishes an international arbitration center, International Arbitration Newsletter 20th December 2013.

Was invited as one of the speakers at the Chartered Institute of Arbitrators, CIArb (Kenya Branch) Young Members Group Conference November 2020.

Was a speaker at the Nairobi Centre for International Arbitration (NCIA) Conference, March 2020.

Was a speaker at the Young International Council for Commercial Arbitration (“Young ICCA”) Skills Training Workshop held in Nairobi on 27th August 2019.

Was one of the Speakers at the 5th SOAS 2019 Arbitration in Africa Conference, co-hosted by Bannaga and Fadlabi LLP (Khartoum) and the African Institute of International Law (Arusha) on February 2019.

Was one of the speakers at the 2018 National Arbitration Conference under the auspices of the Nairobi Centre for International Arbitration on June 2018.

Participate as rapporteur at the International Council for Commercial Arbitration, ICCA Congress, Mauritius, May 2016.

Participated as delegate in the China- Africa Colloquium hosted by the University of Cape Town’s Confucius Institute in conjunction with the African Union Commission and the Embassy of the People’s Republic of China, May 2015.