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Book Review: Settling Disputes Through Arbitration in Kenya, 4th Edition



In March 2022, Dr. Kariuki Muigua, PhD released the 4th Edition of the book that has become the most authoritative reference book on arbitration in Kenya: Settling Disputes Through Arbitration in Kenya. The release of the 4th Edition of this foremost arbitration textbook and practitioners guide in Kenya and the larger East Africa region is a continuation of what is proving to be a seminal year for Dr. Kariuki Muigua. It comes just after Dr. Muigua was ranked in Band 1 among the Top 5 Arbitrators in Kenya by Chambers and Partners in 2022. It also follows after Dr. Kariuki Muigua was awarded the prestigious Chartered Institute of Arbitrators (Kenya) Inaugural ADR Lifetime Achievement Award 2021. Dr. Kariuki Muigua was also the Law Society of Kenya (Nairobi Branch) ADR Practitioner of the Year Award and ADR Publisher of the Year Award Winner 2021.

In terms of context, “Settling Disputes Through Arbitration in Kenya,” was first published after the Constitution of Kenya 2010 entrenched and widened the application of ADR and arbitration by requiring the incorporation of ADR mechanisms, including negotiation, mediation and arbitration in the settlement of disputes of disputes, it became necessary to encourage students and professionals to acquire skills and expertise in ADR. Dr. Kariuki Muigua, at the time of the 1st Edition, the Chairperson of the Chartered Institute of Arbitrators (Kenya) at the time, took up the challenge to write the book that takes readers through the process of arbitration in a simplified, yet comprehensive manner, along with highlights of the latest key amendments and case law on arbitration in Kenya. It is remarkable to note that the 4th Edition is a 407 Pages book from 247 Pages, marking 160 Page expansion.

Dr. Kariuki Muigua has offered this 4th Edition of his book for free download in his law firm Kariuki Muigua & Co. Advocates website here for limited duration in a quest to realize the key objective of its publication, promoting knowledge on key aspects of arbitration. Dr. Muigua noted in the Author’s Note to the current edition: “I recommend this book to ADR students, teachers and tutors of ADR, ADR practitioners and to the general public interested in acquiring knowledge on the various ADR mechanisms in Kenya and their role in resolving or settling disputes occurring in everyday life…. In addition, this book has a place as a core textbook for the popular Entry Course in Arbitration, offered by Chartered Institute of Arbitrators-Kenya around East Africa and for postgraduate students of international commercial arbitration, to whom it will offer basic foundational knowledge.”

Chapter One – Introduction to Arbitration

This chapter introduces arbitration as one of the mechanisms that are commonly referred to as Alternative Dispute Resolution mechanisms (ADR) as set out in Article 33 of the Charter of the United Nations. The Chapter also explores attributes of arbitration which make it ideal mode of dispute resolution and the different types of arbitration which include: ad hoc, institutional, statutory, look-sniff, flip-flop, documents–only, domestic and international and how to determine which type of arbitration is appropriate or relevant for the given case. Arbitration in Kenya Kenyan context is also explored as recognized under the Constitution under Article 159 and entrenched under the Arbitration Act 1995, the Arbitration Rules, Civil Procedure Act and the Civil Procedure Rules 2010. The Chapter also juxtaposes arbitration and other modes of dispute resolution to unearth the occasions when it is the most fitting mode of dispute resolution.

Chapter Two – Arbitration Agreement

The second chapter discusses the arbitration agreement as the basis of arbitration. The chapter makes an introduction to arbitration agreements and clauses and critically examines their salient features. The Chapter includes a general overview of arbitration agreement, arbitration clauses, contractual requirements in arbitration agreements, formal requirements of an arbitration agreement and gives guidance on drafting effective arbitration agreements to avoid ambiguity and non-recognition or non-enforcement of the arbitration clause.

Chapter Three – Stay of Legal Proceedings for Arbitration

This chapter deals with instances where Stay of Legal Proceedings for Arbitration occurs and how to deal with it both as a party and as counsel or party representative and how to avoid recourse to it in drafting arbitration clause. The Chapter discusses grounds for stay of proceedings for arbitration addresses issues and procedure for application of stay of proceedings.

Chapter Four – Commencing an Arbitration and the Appointment of an Arbitral Tribunal

The fourth chapter addresses commencing an arbitration and the appointment of an Arbitral Tribunal from communication of a notice of arbitration up to commencement of arbitration. The various modes of appointing arbitrators and the relevant legal provisions are discussed as well as the factors to be considered in choosing an arbitrator and issues incidental to the appointment of arbitrators such as challenge of arbitral tribunal, immunity of arbitrators, withdrawal of arbitrators, termination of arbitrators and the aftermath of challenge and termination of arbitrators.

Chapter Five – Jurisdiction and powers of an arbitrator

This chapter discusses issues touching on the “jurisdiction and powers of an arbitrator” under the laws of Kenya. It defines the jurisdiction of the arbitrator, discusses types of jurisdiction, jurisdiction of the courts in arbitration, Prerequisites of Jurisdiction of an Arbitrator, Sources of Jurisdiction and Powers generally and under Arbitration Act, 1995, and limitations on the jurisdiction and powers of the Arbitrator.

Chapter Six – Modes of opposing and challenging arbitration reference

It deals with “Modes of opposing and challenging arbitration reference” including issues relevant and related to opposing arbitration references. In particular, Dr. Muigua discusses at length issues relating to challenging the appointment of the arbitral tribunal and the jurisdiction of the arbitral tribunal, the teething issues that may come about before and after commencement of the arbitration process. The chapter also explores the objections that may be raised including allegation as to lack of binding arbitration agreement between parties, objection on whether the dispute is within the scope of the arbitration agreement, objection that the reference is time-barred, challenges to the appointment of arbitrators and challenges to the jurisdiction of the arbitral tribunal. As it is, the arbitral tribunal has two options open to it when the question of jurisdiction is raised by a party. It may rule on the matter as a preliminary question or wait to address it in an arbitral award on the merits. The ruling of the arbitral tribunal in the former instance may be challenged by the aggrieved party by way of an application to the High Court.

Chapter Seven – Preparation for arbitration proceedings

The seventh chapter tackles issues that relate to “preparation for arbitration proceedings.” The chapter discusses what the arbitrator does upon appointment, in preparation for commencement of the arbitral proceedings, namely, convening a preliminary meeting and issuing directions pursuant to the meeting. Issues relating to pleadings in arbitration are also explored including the various types of pleadings used in arbitration and the relevant legal provisions touching on them. The chapter also deals with pre-hearing procedures that are related to pleadings in that they are used to enhance documentation in arbitration. Here, issues relating to seeking further (and better) particulars, discovery (disclosure and inspection) and amendment of pleadings are examined. Finally, interlocutory proceedings in arbitration and the steps taken under Section 7 and Section 18 of the Act and application for security of costs are examined as they constitute steps that are taken mainly to compliment or augment the arbitral process.

Chapter Eight – Arbitration Hearing

This chapter describes generally what takes place in an arbitration hearing. In particular, the chapter entails a description of the procedure that is usually followed from the opening to the closing of the arbitration proceedings to give a picture of what transpires in arbitration hearing. The Chapter also discusses the key aspects of arbitration proceedings which contrast it with litigation and other methods of dispute management.

Chapter Nine – Arbitral Awards, Costs and Interest

Chapter Nine discusses what an arbitral award is, the statutory requirements concerning arbitral awards as well as the provisions of the Arbitration Act, 1995 on arbitration costs and interest. The chapter also outlines the law and the contemporary issues relating to arbitral awards and to costs and interest in arbitration relevant to the Kenyan scenario.

Chapter Ten – Role of the Court in Arbitration

Chapter Ten revisits the role of the court in arbitration in Kenya as stipulated under the Arbitration Act of 1995. The analysis centres on the provisions for court intervention before, during and after arbitration hearing in Kenya. In addition, Dr. Kariuki Muigua proposes necessary reforms as far as court intervention is concerned are proposed. The principle of court intervention in arbitration in Kenya as enunciated in the Arbitration Act, 1995 and the specific legal provisions in the Arbitration Act, 1995 which give the court power to intervene in arbitration are discussed in the context of the Kenyan case law and legal practice. A critical analysis of the role of the court in arbitration in Kenya is also done as part of the debate whether court intervention is a friend or a foe to the expeditious and fair determination of arbitral matters.

Chapter Eleven – Post Hearing Steps in Arbitration

This Chapter is on “Post-Hearing Steps in Arbitration” discusses the steps that take place after the conclusion of the arbitration hearing and the publishing of the arbitration award. The focus is on the applications that may be made to the court for the purpose of enforcing or setting aside or appealing against the arbitral award and applications for setting aside of the award (if any) as well as recognition and enforcement of arbitral awards. The chapter also discusses cases where a party may also apply to a court to determine a question of law arising in the cause of the arbitration and appeal against arbitral award.

Chapter Twelve – Arbitration Practice in Kenya

Chapter Twelve explores the practice of arbitration in Kenya and discusses the contemporary issues surrounding professional arbitration practice in the country, what it takes for one to qualify as an arbitrator in Kenya, the nature of arbitration as a profession and the future of arbitration in Kenya and around the world. This is the perfect primer for anyone seeking a career as an arbitration practitioner in Kenya and East Africa in general.

Chapter Thirteen – Promoting International Commercial Arbitration

This is one of the most outstanding out additions in this fourth Edition of the Book is Chapter 13 of the book which deals with promoting International Commercial Arbitration. In this chapter, Dr. Kariuki Muigua, PhD offers a critical examination of the extent to which international commercial arbitration has taken root in Kenya. In particular, the discourse looks at the legal framework governing arbitration and identifies the challenges therein, hindering the prosperity of international commercial arbitration in Kenya. The challenges and opportunities in the practice of international commercial arbitration in Kenya are explored in view of the need to nurture the same in the context of Kenya. The author identifies the main problems facing international commercial arbitration in Kenya and proposes certain measures that would make it flourish in Kenya.

Chapter Fourteen – Trade and International Treaty Arbitration

Further, Dr. Muigua has added a Chapter in the 4th Edition on Trade and Investments Treaty Arbitration. The chapter offers a critical discussion of trade and investments arbitration in the context of Africa. It also looks at the growth trends, challenges and prospects of investor state arbitration in the context of Africa. Notably, Africa has been lagging behind the rest of the world as far as trade and investments arbitration is concerned even as most developing world countries have been pushing for reforms in the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention) system. The Chapter explores dispute resolution under African Continental Free Trade Area Agreement (“the AfCFTA”) and the various regional trade arrangements including COMESA, ECOWAS, EAC and SADC as alternatives to ICSID and other international commercial arbitration forums.

Chapter Fifteen – Contemporary Issues in Dispute Settlement

This chapter critically discusses the emerging issues and the trends in arbitration practice, across all the thematic areas of arbitration. The Constitution of Kenya enshrines the fundamental right of access to justice and mandates the state to ensure access to justice for all persons. Notably, the issues highlighted are neither limited to domestic arbitration nor international arbitration but also touch on other modes of access to justice. With the ever growing globalisation and international trade and investments, territorial boundaries have increasingly become irrelevant as far as businesses are concerned. However, it is noted that with the ever present commercial disputes, international arbitration has continued to play a critical role in their management.

Chapter Sixteen – Conclusion and Way Forward

Finally, Dr. Kariuki Muigua has added a conclusion and way forward chapter of the book. It notes that the book offers critical discussions around the current law and practice of both domestic and international arbitration in Kenya as well as investment treaty arbitration within the context of the African continent. The book heavily relies on current case law in Kenya in order to appreciate the current trends in the country as far as the relationship between domestic courts and practice of arbitration is concerned. It appeals to policy makers, arbitration practitioners and students who wish to pursue the dispute resolution sector more effectively and professionally to work towards achieving the recommendations in this book, both at personal levels and sectoral level.

News & Analysis

Review: Journal of Conflict Management and Sustainable Development, Vol. 9, No. 1




The Journal of Conflict Management and Sustainable Development, Volume 9, Issue No. 1, which is edited by and published by Dr. Kariuki Muigua, PhD is out and stays true to the reputation of the journal in providing a platform for scholarly debate on thematic areas in the fields of Conflict Management and Sustainable Development. The current issue published in September 2022 covers diverse topics including Resolving Oil and Gas Disputes in Africa; National Environment Tribunal, Sustainable Development and Access to Justice in Kenya; Protection of Cultural Heritage During War; The Role of Water in the attainment of Sustainable Development in Kenya; Property Rights in Human Biological Materials in Kenya; Nurturing our Wetlands for Biodiversity Conservation; Investor-State Dispute Resolution in a Fast-Paced World; Status of Participation of Women in Mediation; Business of Climate Change and Critical Analysis of World Trade Organization’s Most-Favored Nation (MFN) Treatment.

Dr. Wilfred A. Mutubwa and Eunice Njeri Ng’ang’a in “Resolving Oil and Gas Disputes in an Integrating Africa: An Appraisal of the Role of Regional Arbitration Centres” explore the nature of disputes in the realm of oil and gas in Africa taking a look into the recent continental and sub-regional developments in a bid to establish regional integration. Additionally, it tests the limits of intra-African trade and dispute resolution and the imperatives for the African regional courts and arbitration centres. In “National Environment Tribunal, Sustainable Development and Access to Justice in Kenya,” Dr. Kariuki Muigua discusses the role played by the National Environment Tribunal (NET) in promoting access to justice and enhancing the principles of sustainable development in Kenya. The paper also highlights challenges facing the tribunal and proposes recommendations towards enhancing the effectiveness of the tribunal.

Dr. Kenneth Wyne Mutuma in “Protecting Cultural Heritage in Times of War: A Case for History,” argues that cultural heritage is at the heart of human existence and its preservation even in times of war is sacrosanct. It concludes that it is thus critical for states to take positive and tangible steps to ensure environmental conservation and protection during war within the ambit of the existing international legal framework. In “The Role of Water in the attainment of Sustainable Development in Kenya,” Jack Shivugu critically evaluates the role of water in the attainment of sustainable development in Kenya and argues water plays a critical role in the attainment of the sustainable development goals both in Kenya and at the global stage. The paper interrogates some of the water and Sustainable Development concerns in Kenya including water pollution, water scarcity and climate change and suggests practical ways to enhance the role of water in the Sustainable Development agenda.

Dr. Paul Ogendi in “Collective Property Rights in Human Biological Materials in Kenya,” reflects on property rights in relation to human biological materials obtained from research participants participating in genomic research. He argues that property rights are crucial in genomic research because they can help avoid exploitation or abuse of such precious material by researchers. In “Nurturing our Wetlands for Biodiversity Conservation,” Dr. Kariuki Muigua notes that Wetlands have a vital role in not just delivering ecological services to meet human needs, but also in biodiversity conservation. Wetlands are vital habitat sites for many species and a source of water, both of which contribute to biodiversity protection. The paper examines the role of wetlands in biodiversity conservation and how these wetland resources might be managed to improve biodiversity conservation.

Oseko Louis D. Obure in “Investor-State Dispute Resolution in a Fast-Paced World,” preponderance of disputes between States or States and Investors created need for a robust, effective, and efficient mechanisms not only for the resolution of these disputes but also their prevention. He notes that developing states lead in being parties to Investor-State Disputes (ISD) particularly as respondents. He proceeds to conceptualize and problematize investor-state disputes resolution in a fast-paced world. Lilian N.S. Kong’ani and Dr. Kariuki Muigua in “Status of Participation of Women in Mediation: A case Study of Development Project Conflict in Olkaria IV, Kenya” review the status of participation of women in mediation to resolve conflicts between KenGen and the community. The paper demonstrates a need for further democratization of the mediation processes to cater for more participation of women to enhance the mediation results and offer more sustainable resolutions.

Felix Otieno Odhiambo and Melinda Lorenda Mueni in “The Business of Climate Change: An Analysis of Carbon Trading in Kenya analyses the business of carbon trading in the context of Kenya’s legal framework. The article examines the legal framework that underpins climate change into the Kenyan legal system and provides an exposition of the concept of carbon trading and its various forms. Michael Okello, in “Critical Analysis of World Trade Organisation’s Most-Favored Nation (MFN) Treatment: Prospects, Challenges and Emerging Trends in the 21st Century,” highlights the rationale behind MFN treatment and also restates the vision of multilateral trade to achieve equitable and special interventions with respect to trade in goods, services and trade related intellectual property rights in the affected states.

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Dr. Kariuki Muigua: The Making of Top Arbitrator in Africa




African Arbitrator of the Year 2022 Dr. Kariuki Muigua's Journey to the Top of ADR in Africa is a Case Study of Excellence

The journey of Dr. Kariuki Muigua to becoming the African Arbitrator of the Year 2022 has seen him painstakingly and consistently research, teach, write, edit, publish, train, mentor and practice arbitration, alternative dispute resolution (ADR), conflict management and dispute resolution for the last 30 years with excellence as a leading lawyer, authoritative scholar and ADR expert. Today, Dr. Kariuki Muigua, Phd, C.Arb is a Chartered Arbitrator and the African Trustee of the Chartered Institute of Arbitrators and the African Arbitrator of the Year 2022. He is an advocate of 33 years standing and the Managing Partner of Kariuki Muigua & Co. Advocates. He is also the author of the Leading Textbooks on ADR, Mediation and Arbitration including the seminal Settling Disputes Through Arbitration in Kenya, now in 4th Edition. Dr. Kariuki Muigua is ranked at Band 1 by Chambers & Partners among the leading Arbitrators in Kenya noting that “He has been involved in several ground-breaking arbitrations,” “has an astute understanding of arbitration” and “is respected for litigation.”

Dr. Kariuki Muigua is also both the founder, publisher and editor of Africa’s leading Conflict Management Journal as well as one of the PhD Academics who majored in resolution of Natural Resources and Environmental Conflicts using mediation. Dr. Kariuki Muigua is also a leading author in the area of conflict management and has published several books on the topic including Resolving Conflicts through Mediation and Natural Resources and Environmental Justice in Kenya. It is these exploits that have left many of his admirers convinced that his next stop would be Professorship and admission to the Rank of Senior Counsel.

As an ADR Practitioner, Dr. Muigua was declared the first ever winner of the Chartered Institute of Arbitrators (Kenya Branch) ADR Lifetime Achievement Award, the highest honour given by the Institute to one member every year for his immense contribution to the growth of practice, research and scholarship of ADR in Kenya and across Africa. The award came barely a week after Dr. Muigua had won the coveted Law Society of Kenya ADR Practitioner of the Year Award at the 4th Edition of the Nairobi Legal Awards. LSK recognized Dr. Muigua for his outstanding practice in ADR and especially arbitration and his role as mentor to many lawyers venturing into the area. Dr. Kariuki Muigua was also awarded the ADR Publisher of the Year for his scholarship, authorship and editorship of leading research and publications on ADR in Africa including the Journal of Conflict Management and Sustainable Development and Alternative Dispute Resolution, the Official Journal of the CIArb (Kenya).

The tripartite awards have been hailed by many of Dr. Kariuki Muigua’s peers in the ADR and Arbitration fraternity as a fitting tributes to his made immense contribution to mainstreaming of alternative dispute resolution (ADR) and especially arbitration as way of resolving disputes in Kenya, East Africa and across Africa in the last two (2) decades. Indeed, starting in 2002 when Dr. Muigua took the Special Member Course leading to membership to the Chartered Institute of Arbitrators (MCIArb), Dr. Muigua one of the staunchest advocates of ADR in Africa in addition to becoming the foremost intellectual voice shaping ADR practitioners and scholars of the future. The contribution of Dr. Kariuki Muigua to the alternative dispute resolution (ADR) sector has taken many shapes and forms including as a practitioner, leader, policy maker, scholar, author, trainer, mentor and trailblazer among others.

Dr. Muigua is a leading Alternative Dispute Resolution (ADR) practitioner in Kenya, Africa and the world at large who has been recognized nationally and globally by peers. The world leading peer-reviewed lawyers’ directory, Chambers and Partners, rates Dr. Kariuki Muigua as one of the best alternative dispute resolution experts in the country. It describes as ‘a highly respected arbitrator and mediator with a sterling background in commercial and constitutional cases, as well as matters relating to the environment and natural resources.’ The most recent ranking adds: “Kariuki Muigua of Kariuki Muigua & Co is held in high regard by market commentators for his role in the Kenyan arbitration sphere. He possesses stellar experience in commercial and constitutional disputes, as well as environmental matters and those relating to the extractive industries. In addition to being “a big noise in the arbitration association,” he is widely recognized for his academic work.”

Dr. Muigua has served in many panels as an arbitrator appointed by the Chartered Institute of Arbitrators (CIArb)-Kenya, the Law Society of Kenya (LSK), the Nairobi Centre for International Arbitration (NCIA), the London Court Of International Arbitration (LCIA) and the International Court of Arbitration under the auspices of the International Chamber of Commerce (ICC) on several occasions as a sole arbitrator and a member of arbitral tribunals in arbitrations involving commercial disputes. He has vast experience and expertise in adjudication and has sat as both as a panel member and a chairperson in various adjudication Boards both locally and internationally. He is also an accomplished mediator and has successfully presided over numerous matters both as a private mediator and a court appointed mediator under the Court-Annexed Mediation program in Kenya.

Dr Muigua was elected (unopposed) to the Chartered Institute of Arbitrators (CIArb) Board of Trustees as the Regional Trustee for Africa, for the term beginning 1 January 2019. Previously, he served as the Branch Chairman of CIArb-Kenya from 2012 to 2015. He also served CIArb as Member and past Chairperson of the Sub-committee on Information Technology (IT), CIArb and as Member of the Legal Committee Chartered Institute of Arbitrators (CIArb) – Kenya chapter. He is a Fellow of Chartered Institute of Arbitrators (CIArb)-Kenya chapter. He is also a member of the London Court of International Arbitration (LCIA), Chartered Institute of Arbitrators (UK) and Kenya Branch. He is also a Member of Kigali International Arbitration Centre (KIAC) and Nairobi Centre for International Arbitration (NCIA). For his contributions, he was awarded Chartered Institute of Arbitrators Chairman’s Medal with a citation for exemplary service in December, 2015.

In policy-making, Dr. Kariuki Muigua is currently a member of the National Steering Committee for Formulation of the Alternative Dispute Resolution Policy representing the Academia since 2020. The team is providing guidance and overseeing the process for formulation of a national policy and institutional framework on Alternative Dispute Resolution (ADR) in Kenya. He has also served as Member of the Meditation Accreditation Committee Panel of Mediators Accredited for Commercial Mediation under the Judiciary of Kenya. Recently, he led negotiations that achieved partnership with Chartered Institute of Arbitrators UK on GPR 625 (International Commercial Arbitration) for University of Nairobi LLM students to achieve membership status without further tests, 2020 to 2023.

On ADR Scholarship, Dr. Muigua is the author of the leading textbook on Arbitration in Kenya, namely, Settling Disputes through Arbitration in Kenya, now in its 4th Edition (2022) and available for free download, Alternative Dispute Resolution and Access to Justice in Kenya (2015) and Resolving Conflicts through Mediation in Kenya (2013). He has been cited hundreds of times as an ADR Scholar, contributed at least 3 chapters of published books, authored dozens of peer-reviewed articles in the areas of arbitration and alternative dispute resolution and presented over two dozen papers on ADR in diverse fora. Dr. Muigua has also facilitated numerous trainings, workshops and conferences on ADR. He has supervised and supervised at least two (2) completed PhD thesis on ADR, Dozens of Masters Thesis and is supervising three (3) PhDs in the area as a lecturer and mentor in ADR practice and scholarship. Dr. Muigua is a lecturer in International Commercial Arbitration at the University of Nairobi and tutor, trainer and assessor at the Chartered Institute of Arbitrators (Kenya Branch).

Dr. Kariuki Muigua is a Chartered Arbitrator (since January 2015) and Fellow of the Chartered Institute of Arbitrators (since October 2010) and Member of the Chartered Institute of Arbitrators (since 2002). He holds a Diploma in Arbitration (2012) and became Accredited as a Mediator by the Mediation Training Institute in 2015. He is also a renowned consultant on ADR Law and Practice and has authored reports whose recommendations had far reaching impact on the sector. As a professional who strives to attain excellence in the legal and ADR arenas, Dr. Muigua has gone out of his way to put ADR in the frontline as one of the leading modes of dispute resolution in Kenya, Africa and at global stage. Dr. Muigua is a holder of a Ph. D in law from the University of Nairobi and has widespread training and experience in both international and national commercial arbitration and mediation. Previously, he served as the chairperson, Department of Private Law of the University of Nairobi School of Law 2020-2021.

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Overcoming Hindrances to International Commercial Arbitration in Kenya




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*

In the face of globalisation, it is important that international trade and investment take place with minimal interference by territorial barriers such as unnecessary domestic courts’ intervention. It has been asserted that the settlement of disputes between parties to an international transaction, arbitration has clear advantages over litigation in national courts. The foreign court can be an alien environment for a businessman because of his unfamiliarity with the procedure which may be followed, the laws to be applied, and even the mentality of the foreign judges.

In contrast, with international commercial arbitration parties coming from different legal systems can provide for a procedure which is mutually acceptable. They can anticipate which law shall be applied: a particular law or even a lex mercatoria of a trade. They can also appoint a person of their choice having expert knowledge in the field. Thus, it is argued that these and other advantages are only potential until the necessary legal framework can be internationally secured, at least providing that the commitment to arbitrate is enforceable and that the arbitral decision can be executed in many countries, precluding the possibility that a national court review the merits of the decision.

There is a need to employ mechanisms that will help nurture and demonstrate Kenya to the outside world as a place with international commercial arbitrators with sufficient knowledge and expertise to be appointed to arbitrate international arbitrators. There is also the need to put in place adequate legal regimes and infrastructure for the efficient and effective organization and conduct of international commercial arbitration in Africa. This ranges from legislating comprehensive law on international commercial arbitration as well as setting up world class arbitration centres in Kenya to complement the Nairobi Centre for International Arbitration (NCIA).

There is also the Centre for Alternative Dispute Resolution (CADR) which is an initiative by the Chartered Institute of Arbitrators, Kenya and was incorporated in May, 2013. Its objective is to establish and maintain a regional Dispute Resolution Centre in the country. The CADR is a positive step towards nurturing international commercial arbitration in Kenya. This will afford the local international commercial arbitrators the fora to showcase their skills and expertise in international commercial arbitration and will also attract international clients from outside Africa. It has been noted that there should be basic minimum standards for international commercial arbitration centres or institutions. These include: modern arbitration rules; modern and efficient administrative and technological facilities; Security and safety of documents; Expertise within its staff; and some serious degree of permanence. There is a need to set up more regional centres for training of international commercial arbitrators in Africa and Kenya.

The Kenyan Chapter of Chartered Institute of Arbitrators trains arbitrators across Africa and has trained arbitrators in countries like Nigeria, Zambia, Uganda and even Malawi. Kenya can indeed play a pivotal role in nurturing international commercial arbitration, not only in Kenya but also across the African continent. There is also need for the existing institutions to seek collaboration with more international commercial arbitration institutions since this will work as an effective marketing tool for the exiting institutions. For instance, the Kenyan Chartered Institute of Arbitrators Branch maintains a close relationship with the International Law Institute (ILI) Kampala and the Centre for Africa Peace and Conflict Resolution (CAPCR) of California State University to conduct Courses in Mediation and other forms of ADR both locally and internationally.

There is need for all African centres and institutions to do the same to promote international commercial arbitration in Africa. The Kenyan law on arbitration appreciates the need to limit court intervention in arbitration to a basic minimum. It has been argued that the relationship between the courts and the arbitral process can be made much closer, both practically and psychologically. The psychological link can be strengthened by encouraging all or at least a good number of the commercial judges and advocates to take up training in arbitration and consequently ensuring that they benefit from having prior experience of arbitration either as representative advocates or actual arbitrators. This will subsequently boost the confidence of foreigners in the African Arbitration institutions as well as the role of courts. Effective and reliable application of international commercial arbitration in Kenya has the capacity to encourage investors to carry on business with confidence knowing their disputes will be settled expeditiously.

In essence, there is need to develop a clear framework in Kenya within which international commercial arbitration can be further nurtured. There are arbitral institutions already in place in Kenya as highlighted in this paper. The presence of such institutions in the country points to an acceptance of alternative dispute resolution modes as well as the need to nurture the practice of international commercial arbitration other than exporting commercial disputes to foreign countries for settlement. With the right frameworks in place, Kenya indeed has the capacity to conduct successful international commercial arbitration. Nurturing international commercial arbitration in Kenya is a necessity whose time has come.

*This article is an extract from published article Nurturing International Commercial Arbitration in Kenya,” by Dr. Kariuki Muigua, PhD, the African Arbitrator of the Year 2022, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), CIArb (Kenya) ADR Lifetime Achievement Award 2021 and ADR Publisher of the Year 2021. Dr. Kariuki Muigua is a Foremost Dispute Resolution Expert in Africa ranked among Top 6 Arbitrators in Kenya by Chambers and Partners, Leading Environmental Law and Natural Resources Lawyer and Scholar, Sustainable Development Advocate and Conflict Management Expert. 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 Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized as one of the leading lawyers and dispute resolution experts by the Chambers Global Guide 2022 and is ranked among the Top 5 Arbitrators in Kenya in 2022 by The Lawyer Africa. 


Muigua, K., “Nurturing International Commercial Arbitration in Kenya,” Available at: (accessed 15 July 2022).

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