By Dr. Kariuki Muigua, PhD (Leading Environmental Law Scholar, Policy Advisor, Natural Resources Lawyer and Dispute Resolution Expert from Kenya), Winner of Kenya’s ADR Practitioner of the Year 2021, ADR Publisher of the Year 2021 and CIArb (Kenya) Lifetime Achievement Award 2021*
One thing is beyond question: there is a bright future for arbitration and alternative dispute resolution in Kenya and around the world. This is due to the renewed quest for legal systems the world over to finding new and more effective ways of providing these services to meet the needs of people in an even greater array of human transactions. In Kenya, under Article 159 (2)(c) of the Constitution, the judiciary is required to promote the use of alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms. The Constitution also provides that national laws should provide for the procedures to be followed in settling intergovernmental disputes by alternative dispute resolution mechanisms, including negotiation, mediation and arbitration. It seems that the future of Alternative Dispute Resolution in Kenya is bright and really promising in bringing about a society where disputes are disposed of more expeditiously and at lower costs.
One of the increased approaches to arbitration entails court-ordered arbitration. This form of arbitration which is taking root around the world requires parties to present their dispute to an arbitrator or a panel of arbitrators for resolution. When parties are ordered to arbitrate, however, they face the possibility of losing their day in court unless they first opt for arbitration. Presently, international arbitration in Kenya has picked up. The Nairobi Centre for International Arbitration Act (No. 26 of 2013) establishes the Nairobi Centre for International Arbitration (NCIA) whose functions include, inter alia, to promote, facilitate and encourage the conduct of international commercial arbitration in accordance with the Act; to administer domestic and international arbitrations as well as alternative dispute resolution techniques under its auspices; to ensure that arbitration is reserved as the dispute resolution process of choice; and, to develop rules encompassing conciliation and mediation processes.
NCIA is administered by a Board of Directors as provided for under the Act. There is also an Arbitral Court established under the Act, which court has exclusive original and appellate jurisdiction to hear matters that are referred to it under the Act. Its capacity to handle domestic and international arbitration requires to be constantly improved, and it can only be hoped that this potential will be exploited to its maximum in the years to come so as to prominently place Kenya on the global map of international arbitration. Kenya also has qualified and experienced arbitrators who are arbitrating commercial disputes around Africa. Indeed, following the revival of the East African Community and the expansion of regional trade, the possibility of Nairobi becoming a regional centre for arbitration is very high. Therefore, the prospects of international commercial arbitration in Kenya are really promising. The use of arbitration is therefore critical in Kenya in settlement of disputes, not only in the commercial set up but also in settling intergovernmental disputes between the County government and the national government, as envisaged in Article 189 of the Constitution.
Since it is a consensual, flexible, cost-effective, private and expeditious process, the role of arbitration in an emerging economy like Kenya cannot be gainsaid. The use of arbitration in commercial and all other disputes where it is amenable is thus the way of the future. With the enactment of the Constitution of Kenya in 2010, there is no doubt that a bright future lies ahead for arbitration and other alternative dispute resolution mechanisms in Kenya. This is so because the Constitution now obligates the judiciary, in its pursuit of expeditious resolution of disputes and enhanced access to justice, to promote the use of alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms.
Recognising arbitration as one of the main conflict resolution mechanisms in Kenya is, thus, encouraging. Its status has been elevated. Its applicability also to a wide array of disputes will thus be seen in the near future. Previously, the idea of access to justice in Kenya had been equated to litigation which for a long time has been the predominant mechanism though which parties enforce their rights. However, there has been a paradigm shift under the Constitution of Kenya, 2010 which mandates courts and tribunals while exercising judicial authority to promote alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms.
Arbitration, thus, enjoys constitutional recognition in Kenya pursuant to this provision. Courts have slowly embraced this shift and acknowledged the different aspects of what constitutes access to justice as was captured by the High Court in the case of Dry Associates Limited v Capital Markets Authority & Another Interested Party Crown Berger (K) Ltd (2012) eKLR in the following words:
[110] “Access to justice is a broad concept that defies easy definition. It includes the enshrinement of rights in the law; awareness of and understanding of the law; easy availability of information pertinent to one’s rights; equal right to the protection of those rights by the law enforcement agencies; easy access to the justice system particularly the formal adjudicatory processes; availability of physical legal infrastructure; affordability of legal services; provision of a conducive environment within the judicial system; expeditious disposal of cases and enforcement of judicial decisions without delay.”
While the High Court in the above case seemed to give prominence to the formal adjudicatory processes, ADR has been embraced by the courts. In addition, while the effectiveness of ADR processes under the guidance and direction of courts may have its pros and cons (which are beyond the scope of the current discussion), it is indeed a step in the right direction in making access to justice accessible by the public. The scope for the application of arbitration has also been extensively widened with the Constitution now providing that various national laws should provide for the procedures to be followed in settling disputes by alternative dispute resolution mechanisms, including negotiation, mediation and arbitration.
*This article is an extract from the Book: Settling Disputes Through Arbitration in Kenya, 4th Edition (Chapter 12), Glenwood Publishers, Nairobi, 2022 by Dr. Kariuki Muigua, PhD, Kenya’s ADR Practitioner of the Year 2021 (Nairobi Legal Awards), ADR Publisher of the Year 2021 and ADR Lifetime Achievement Award 2021 (CIArb Kenya). 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 Africa Trustee of the Chartered Institute of Arbitrators and the Managing Partner of Kariuki Muigua & Co. Advocates. Dr. Muigua is recognized among the top 5 leading lawyers and dispute resolution experts in Kenya by the Chambers Global Guide 2022.
References
Muigua, K., Settling Disputes Through Arbitration in Kenya, 4th Edition, Glenwood Publishers, Nairobi, 2022, p. 345 to 349.