THE LAWYER AFRICA released the list of TOP 35 Arbitrators in Kenya 2023 who comprised mainly active Chartered Arbitrators and the most distinguished active arbitrators in Kenya. THE LAWYER AFRICA TOP 100 ARBITRATORS IN KENYA 2023 comprises arbitrators who are outstanding in arbitration in Kenya. Given that Kenya has slightly over one thousand qualified Arbitrators, the TOP 100 ARBITRATORS are essentially the top 10% of  Arbitrators in the country. The listed arbitrators have acted in several recent and significant arbitrations and are leaders or in the panels of the various Arbitration bodies active in Kenya including Chartered Institute of Arbitrators, ICC-Kenya, Nairobi Centre of International Arbitration (NCIA) and LCIA Africa Users Council among others.

TOP 100 ARBITRATORS IN KENYA 2023

1. AASIF KARIM, FCIArb.
2. ANDREW O. MUMA, FCIArb.
3. ANDREW WARUHIU, MCIArb.
4. ANTHONY G. KIMANI, FCIArb.
5. ANTHONY LUBULLELAH, FCIArb.
6. ANTHONY NJOGU, MCIArb.
7. JULIUS M.F. MUTUNGA, FCIArb.
8. ASHOK J. DAVE, MCIArb.
9. ASUNTA NDAMI, MCIArb.
10. BENSON NGUGI NJERI, FCIArb.
11. BRYAN MAILU MUINDI, FCIArb.
12. CECIL KUYO, FCIArb.
13. CHARLES N. KANJAMA, FCIArb.
14. COLLINS O. ADIPO, FCIArb.
15. COSIMA A. WETENDE, FCIArb.
16. CYNTHIA OPAKAS, FCIArb.
17. DAN K. AMEYO, FCIArb.
18. DAVID M. MEREKA, MCIArb.
19. DAVID MUTHEE MICHUKI, MCIArb.
20. DAVID NJUGUNA NJOROGE, FCIArb.
21. DEBORAH KERUBO NYAMWEYA, FCIArb
22. DIANA SAWE TANUI, FCIArb.
23. DOMINIC NJUGUNA MBIGI, MCIArb.
24. KEN NYAUNDI, FCIArb.
25. DANIEL SACHO CHERONO, FCIArb.
26. ESTHER KINYENJE, FCIArb.
27. EVANS GAKURU, MCIArb.
28. EVANS K. LANGAT, FCIArb.
29. FAITH MONY ODHIAMBO, FCIArb.
30. FESTUS LITIKU, FCIArb.
31. FLORENCE SHAKO, FCIArb.
32. FRANCIS KAIRU BACHIA, MCIArb.
33. FRANCIS KARIUKI, FCIArb.
34. GEOFREY NYAANGA, FCIArb.
35. GEORGE CHEGE KIRUNDI, FCIArb.
36. GEORGIADIS MAKADIA KHASEKE, MCIArb.
37. GICHINGA NDIRANGU, FCIArb.
38. GODFREY IMENDE, FCIArb.
39. GORDON ODUOR, MCIArb.
40. GYAVIRA AMANYA NAMULANDA, FCIArb.
41. HARIT A. SHETH, FCIArb.
42. HARUN G. NYAKUNDI, FCIArb.
43. HON JUSTICE (RTD) DAVID MARAGA KENANI, FCIArb.
44. ARCH. SILVIA MUENI KASANGA, FCIArb.
45. JUSTICE (RTD) JOHN WYCLIFFE MWERA, FCIArb.
46. JUSTICE (RTD) NICHOLAS RANDO O. OMBIJA, MCIArb.
47. IBRAHIM KITOO, MCIArb
48. ISAAC M. GITURA, MCIArb
49. JAMES MANG’ERERE, MCIArb.
50. PHILIP MURGOR, SC, MCIArb.
51. JAMES NGOTHO KARIUKI, FCIArb.
52. JAMES TUGEE, FCIArb.
53. JANE S. MWANGI, MCIArb.
54. JOB WELOBA, MCIArb.
55. JOHN MULIKA MBALUTO, FCIArb.
56. JOMO NYARIBO, FCIArb.
57. JOSEPH MUTAVA, FCIArb.
58. JUSTUS M. MUNYITHYA, FCIArb.
59. KANANU MUTEA, MCIArb.
60. KELVIN T. MOGENI, MCIArb.
61. KETHI D. KILONZO, FCIArb.
62. KHAIRAN ABDUL ALIM NOOR, MCIArb.
63. LAURA LUSIJI, FCIArb.
64. LEYLA AHMED, FCIArb.
65. MARTIN MUNYU, FCIArb.
66. MERCY MWANGI, FCIArb.
67. MERY OKIRO, MCIArb.
68. MOHAMMED S. BALALA, MCIArb.
69. NIKHIL DESAI, FCIArb.
70. NJERI ONYANGO, FCIArb.
71. NOREEN KINDUHUHU, MCIArb.
72. O. P. NAGPAL, FCIArb.
73. PATRCIK MWITI, MCIArb.
74. PATTERSON MUNENE KAMAARA, FCIArb.
75. PAUL KAREKEZI, FCIArb.
76. PETER GACHUHI, FCIarb.
77. PETER KAKAI CHELOTI, MCIArb.
78. PETER M. NJERU, MCIArb.
79. PETER MUREITHI, FCIArb.
80. PHILEMON MORARA APIEMI, FCIArb.
81. PROTAS SAENDE, FCIArb.
82. QS ISABELLA NJERI WACHIRA-TOWEY, FCIArb.
83. QS KIMANI MATHU, QS, FCIArb.
84. QS NYAGAH BOORE KITHINJI, QS, FCIArb.
85. QS PATRICK S. KISIA, FCIArb.
86. QS TOM O. OKETCH, FCIArb.
87. RICHARD KARIUKI, FCIArb.
88. SAMANTHA MASENGELI, MCArb.
89. SANJEEV KHAGRAM, FCIArb.
90. SEAN OMONDI, FCIArb.
91. STEPHEN BIKO ADERA, MCIArb.
92. STEVEN OUNDO, FCIArb.
93. TIMOTHY KAMAU NJENGA, FCIArb.
94. VAIZMAN AHARONI, FCIArb.
95. WAMBUA KILONZO, MCIArb.
96. WAMBUI GITHU-MUIGAI, FCIArb.
97. WANJIKU KARANJA, MCIArb.
98. WAWERU GATONYE, MCIArb.
99. WILLIAM C. GITHARA, FCIArb.
100. WILSON K. KALYA, MCIArb.

By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Sustainable Development Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), The African Arbitrator of the Year 2022, Kenya’s ADR Practitioner of the Year 2021, CIArb (Kenya) Lifetime Achievement Award 2021 and ADR Publisher of the Year 2021 and Author of the Kenya’s First ESG Book: Embracing Environmental Social and Governance (ESG) tenets for Sustainable Development” (Glenwood, Nairobi, July 2023).

Regulation of ADR is a subject wrought with contentious discourse. There are those who strongly advocate for ADR to be deregulated, while others argue for strong state regulation. On one end, the regulation of ADR carries with it the advantages of encouraging its adoption nationally; establishing standards of ADR practitioner’s competence; developing systems of compliance and complaints; addressing weaknesses of ADR such as ensuring the fairness of the procedure and building capacity and coherence of the ADR field.

Proponents of regulation have argued that regulation of ADR will increase the use and demand of services and create or enhance an ADR “market”. There are those who believe that the regulation of ADR may have its value in assuring that the parties employ qualified, neutral and skilled mediators and arbitrators in resolving a wide variety of disputes. However, this is countered by the argument that in mediation where the parties select private non-government mediators, monitoring is complimented by the fact that the parties share in the compensation of such neutrals, better assuring their freedom from bias. This assertion may be relevant to Kenya considering that private mediators are also appointed and compensated the same way. It is therefore possible to argue that the mediator may be compelled by this fact to act fairly.

Contention would, however, arise where there are allegations of corruption. It is not clear, at least in Kenya, how the parties would deal with the same. This is because, unlike in arbitration where parties may seek court’s intervention in setting aside the otherwise binding arbitral award, mediation outcome is non-binding and wholly relies on the goodwill of the parties to respect the same. Therefore, faced with the risk of corruption and the potential non-acceptance of the outcome by the parties, it is arguable that the foregoing argument of the compensation being a sufficient incentive may not be satisfactory. This may, arguably, call for better mechanisms of safeguarding the parties’ interests. In arbitration, the argument advanced is that whether of interests or rights disputes, the same process of joint selection and joint funding coupled with mutual selection of neutral from a tried and experienced cadre of professional arbitrators further assures their independence and neutrality, with protection of their integrity as their only ticket to future designations.

Again, the issue of independent practitioners would arise. For instance, in Kenya, there has been increased number of professionals taking up ADR. Professional bodies and higher institutions of learning have increased their rate of teaching ADR, as professional course and academic course respectively. The net effect of this will be increased number of ADR practitioners in the country. As part of professional development, not all of those who get the academic qualifications may enroll with the local institutions for certification as practitioners. There are also those who may obtain foreign qualifications and later seek such certification. However, there are those who are not affiliated to any institution or body. In such instances, it would only be hoped that they would conduct themselves in a professional manner, bearing in mind that any misconduct or unfair conduct may lead to setting aside of the award or even removal as an arbitrator by the High Court.

The court process obviously comes with extra costs and it would probably have been more effective to have a supervisory body or institution to report the unscrupulous practitioner for action, without necessarily involving the court. Such instances may thus justify the need for formal regulation, especially for the more formal mechanisms. Currently, there are attempts to make referral to ADR mandatory in Kenya. This is especially evidenced by the gazetted Mediation (Pilot Project) Rules, 2015, which provide that every civil action instituted in court after commencement of these Rules, must be subjected to mandatory screening by the Mediation Deputy Registrar and those found suitable and may be referred to mediation.

Thus, there is no choice as to whether one may submit the matters voluntarily or otherwise. While this may promote the use of mediation where the parties are generally satisfied with the outcome, the opposite may also be true. Caution ought to be exercised in balancing the need for facilitating expeditious access to justice through ADR and retaining the positive aspects of the processes. For instance, in other jurisdictions where there is provision for mandatory promotion of ADR processes, the use of those processes has not necessarily become common. Among the reasons given for this reluctance towards the adoption of ADR include lack of education and training in the field, lack of court-connected programs, whether voluntary or mandated and insufficient legislation.

The argument is thus made that when introducing ADR for the first time, there may be a need for some element of compulsion or legislative control, as this can support its growth. This is the path that the Kenyan Judiciary has taken. The Judiciary mediation programme is on a trial basis and the outcome will inform future framework or direction. The pilot program (having been rolled out to other stations outside Nairobi in May 2018) will define how the practitioners as well as the general public perceive court-annexed mediation and ADR in general. It is therefore important that the concerned drivers of this project use the opportunity to promote educational programming, with the efforts including workshops and seminars among the local practicing lawyers to enhance their understanding of ADR and the services provided by the pilot project. This, it is argued, may enable them to assist their clients in making informed decisions about whether or not to use ADR.

On the other end, it has been argued that legislative regulation, no matter how well meaning, inevitably limits and restrains. The regulation of ADR is feared to hamper its advantages. The developing country’s experience with court-annexed ADR indicates that when a judge imposes a conciliator or mediator on the parties, it does not provide the proper incentive for the parties to be candid about the case. ADR advantages such as low cost, procedural flexibility, enhanced access for marginalized groups and a predictable forum for conflict management tend to disappear when there is discretionary power with court personnel, procedural formalities within the ADR process or an artificial limit to competition within the ADR market.

Court mandated mediation has been argued to negate the fundamental aspects of voluntariness and party control that distinguish it from litigation, the very aspects attributed to its success in a vast number of cases. In addition, the “one size fits all” approach taken by legislation that encourages or requires all to use ADR, without regard to needs in various contexts and to the distinctions among the various processes, is another reason why ADR legislation should be undertaken with caution. For instance, in the Kenyan situation, while the Mediation (Pilot Project) Rules, 2015 require screening of civil matters for possible submission for mediation, it is possible for the Registrar to realise that some of the cases may be appropriate for arbitration instead of mediation. The programme only takes care of mediation process with no reference to arbitration or any other process, well, apart from litigation.

The question that would, therefore, arise is whether the Registrar has powers to force parties into arbitration as well. Further, if they have such powers, the next question would be who would pay for the process, bearing in mind that it is potentially cost-effective but may be expensive as well. On the other hand, if the Registrar lacks such powers, it is also a question worth addressing what the Court would do if it ordered the parties to resort to arbitration but both parties fail to do so due to such factors as costs. It is, therefore, worth considering whether the Mediation Accreditation Committee, established under the Civil Procedure Act, should have its mandate expanded to deal with all processes, or whether there should be set up another body to deal with the other processes.

*This is an extract from published article “Regulating Alternative Dispute Resolution (ADR) Practice in Kenya: Looking into the Future,” by Dr. Kariuki Muigua, PhD, Senior Advocate of Kenya, Chartered Arbitrator, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Lifetime Achievement Award 2021 (CIArb Kenya), African Arbitrator of the Year 2022, Africa ADR Practitioner of the Year 2022, Member of Permanent Court of Arbitration nominated by Republic of Kenya and Member of National Environment Tribunal (NET). Dr. Kariuki Muigua is a foremost Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert in Kenya. Dr. Kariuki Muigua is a Senior Lecturer of Environmental Law and Dispute resolution at the University of Nairobi School of Law and The Center for Advanced Studies in Environmental Law and Policy (CASELAP). He has published numerous books and articles on Environmental Law, Environmental Justice Conflict Management, Alternative Dispute Resolution and Sustainable Development. Dr. Muigua is also a Chartered Arbitrator, an Accredited Mediator, the Managing Partner of Kariuki Muigua & Co. Advocates and Africa Trustee Emeritus of the Chartered Institute of Arbitrators 2019-2023. Dr. Muigua is recognized among the top 5 leading lawyers and dispute resolution experts in Band 1 in Kenya by the Chambers Global Guide 2022 and was listed in the Inaugural THE LAWYER AFRICA Litigation Hall of Fame 2023 as one of the Top 50 Most Distinguished Litigation Lawyers in Kenya.

References

Muigua, K., “Regulating Alternative Dispute Resolution (ADR) Practice in Kenya: Looking into the Future,” Available at: http://kmco.co.ke/wp-content/uploads/2018/08/Regulating-ADR-Practice-in-Kenya-Kariuki-Muigua-June-2018.pdf (accessed 02 October 2022).

Jacqueline Waihenya is a Senior Advocate of the High Court of Kenya of 25 Years standing, a Chartered Arbitrators of the Chartered Institute of Arbitrators (CIARB), Chartered Mediator of the Institute of Chartered Mediators & Conciliators (CM-ICMC) and Patent Agent registered by Kenya Intellectual Property Institute (KIPI). She is one of the only 4 Lady Chartered Arbitrators in Kenya but also one of the pioneer Mediators accredited by the Kenya Judiciary. Jacqueline is the Founder and Managing Partner of JWM LAW LLP, a Mombasa-based leading Commercial and Corporate Law and Dispute Resolution Boutique Law Firms. Before starting her firm, she practiced law at leading law firms in the country including Dentons Hamilton, Harrison & Mathews (HHM) and as inhouse lawyer at a top transport and logistics company in Kenya. She was listed as Leader in Law in International Arbitration in 2021, Africa’s Influential Female Lawyers in 2022 and Hall of Fame Commercial Lawyer in Kenya by THE LAWYER AFRICA in 2023.

Jacqueline is a highly-regarded Professional Leader who has been chosen by her peers as their representative in numerous cases. Presently, she sits at the helm of law, arbitration, mediation, corporate secretarial and trade industries in diverse capacities. She is the incumbent Chairperson of the Chartered Institute of Arbitrators (Kenya Branch). Previously, Jacqueline served the CIARB (Kenya Branch) as Branch Treasurer and Vice Chairperson among others. She is the Vice Chairman of the Kenya National Chamber of Commerce & Industry (Mombasa Chapter) and the Vice Chairperson of the Mombasa Law Society (MLS). She sits on the Continuing Professional Development Committee of the Law Society of Kenya (LSK) and is also the founder and convener of the Alternative Dispute Resolution Committee as well as the Admiralty and Maritime Committee of Mombasa Law Society (MLS).

In arbitration, besides being a Chartered Arbitrator (C.Arb), Jacqueline is a Fellow of the Chartered Institute of Arbitrators (FCIArb), a CIARB Accredited Tutor and a holder of Post-graduate Diploma in International Arbitration. Further, she holds an Advanced Certificate in Construction Adjudication from CIARB and is an International Federation of Consulting Engineers (FIDIC) Legal Professional trained at Kings College London and is a member of the Dispute Resolution Board Foundation (DBRF). She chaired the Taskforce on the Transition of CIARB (Kenya Branch) from a Society to a Company Limited by Guarantee and was one of the original 3 subscribers who oversaw the incorporation and operationalization of CIARB Kenya Limited transforming the Kenya Branch into one of the international corporate branches of CIARB (UK).

Jacqueline is one of the Top 10 Mediators in Kenya and holds distinguished qualifications in Mediation including being a Certified Mediator by International Mediation Institute (IMI), Chartered Mediator by Institute of Chartered Mediators and Conciliators (ICMC), FIFA Approved Mediator and Accredited Mediator of the Judiciary of Kenya. She holds Certified Advanced Mediator qualifications in Sports Mediation, Tax Mediation, Commercial Mediation and Family & Divorce Mediation from the Mediation Training Institute International (East Africa). She has keen focus in commercial mediation and has resolved numerous complex disputes in public finance, capital markets, private equity, real estate, marine and logistics and joint venture between local and foreign parties whose combined subject matter estimated value is over USD. 100 Million.

Jacqueline is a well-respected Corporate Governance Practitioner as a Fellow of the Institute of Certified Secretaries of Kenya (ICS), Certified Public Secretary, Accredited Governance Auditor, a Legal and Compliance Auditor trained by the Kenya School of Law and Governance Trainer. In March 2017, she attended the 20th Corporate Governance Training in Johannesburg, South Africa on the eve of the coming into effect of the King VI® Report undertaken in conjunction with the Institute of Directors South Africa (IoDSA) and Prof. Mervyn King and other leading governance experts. She is the Vice Chairman of the Governing Council of Institute of Certified Secretaries (ICS) where she previously chaired the Membership Committee as well as the Research & Publications Committee of the Institute.

As the National level, Jacqueline was recently appointed by the Chief Justice to the National Council on the Administration of Justice (NCAJ) Standing Committee on Civil Justice Reforms. In 2020, she resented CIARB (Kenya) as a member of the National Steering Committee National Steering Committee for the Formulation of the Alternative Dispute Resolution Policy. She served at the Committee as the convener of the NSC Sub-Committee on Legislative Proposals which was instrumental in preparing the draft proposed Amendments to the Arbitration Act as well as proposals for a Construction Adjudication Bill and a Dispute Resolution Bill attached to the Report presented to the Attorney General in 2021 and which was approved by Cabinet in March 2023. She also served on the Taskforce to the Review of the Certified Public Secretary Act which presented its report in November 2021. She served as the inaugural Kenya Country Chair in District 9212.

Jacqueline is also a respected intellectual and academic in areas of law, ADR, corporate governance and finance. She holds an LLM in Public Finance & Financial Services Law from the University of Nairobi and is currently pursuing an LLM in International Dispute Resolution at Queen Mary University of London and a Doctorate of Laws (PHD) at the University of Nairobi. She is also a prolific researcher who has authored over a dozen peer-reviewed journal articles in the areas of law, arbitration, mediation, corporate governance and ADR. She is currently an Adjunct Lecturer at Kenya School of Law, an Associate Editor of the ADR Journal and the Editor-in-Chief of the Mombasa Law Society Journal. She oversaw the publication of the ICS’s Governance Journal 2022 and the launch of the Governance Ethics Research and Compliance Manual and training. She is a frequent panelist and keynote speaker on law, ADR and governance at high level events in Kenya and around Africa.