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).

By Renson Mulele Ingonga is an Advocate of the High Court of Kenya, LLB (Moi), LLM (UON) and the Nominee Director of Public Prosecution of Kenya.

Environmental disputes involve a number of complex and technical issues. The ELC in referring parties to ADR will not only consider the benefits that accrue from ADR such as saving costs and time but must take into consideration a number of factors to ensure that ADR in itself is not futile and enhances the overriding objective of ensuring that the dispute is solved expeditiously and in a just manner.

First, it should be noted that the application of ADR in environmental matters in itself can be very complex. A successful environmental ADR will require the ELC to take into consideration stakeholders’ engagement, sustainable development and providing a clear mandate. This means that the ELC in implementing environmental ADR will be required to involve other stakeholders in a collaborative and facilitative decision making. Stakeholders will involve the public, environmental agencies, business community, civil society and many others. The essence is to ensure that the interest of every party is well represented and enhances public participation.

Second, the ELC needs to consider the expertise of those involved in the ADR. It is sensible and reasonable to ensure that the third parties involved in the dispute possess expertise and understanding of the dispute in question. The role of ADR is to solve a dispute expeditiously and expertise is fundamental. Third, the ELC should consider the nature of the dispute. In some cases, the harm occasioned by environmental violations will continue to deteriorate the environment if urgent measures are not taken in place. It is no doubt that litigation may take long, undermining the essence of solving environmental disputes expeditiously. The nature of the environmental dispute will also be determined by the scientific and technical expertise required in resolving the dispute. Where the enforcement of the dispute will be a challenge through the ADR, then the ELC will require that where a settlement has been reached, be written down and deposited with the ELC registry for enforcement.

Fourth, the ELC must consider the parties involved and their bargaining power. In most cases, environmental disputes such as environmental degradation as a result of development projects involve the public. The public may lack the bargaining power or it may be weak during settlement negotiations or they may not understand the impact of the said developments to environment. In this case where an environmental dispute arises between private companies and the community at large, the ELC must ask itself whether referring the dispute to ADR is the most appropriate option or not. In so doing it should consider the benefits that will accrue from ADR.

Fifth, the ELC should consider the impact of the dispute on environmental protection and conservation. The principles of sustainable development should inform its decision to adopt and implement environmental ADR. The CoK recognizes sustainable development as a national value and principle of governance which every state organ, state officers and public officer must abide in the application and interpretation of the CoK; enacting, applying or interpreting any law; and making or implementing public policy decisions.

The ELC Act and EMCA further require the ELC in exercising its mandate to be guided by the principle of sustainable development. The principles of sustainable development include: the principle of public participation in the development of policies, plans and processes for the management of the environment and land; the cultural and social principles traditionally applied by any community in Kenya for the management of the environment or natural resources in so far as the same are relevant and not inconsistent with any written law; the principle of international co-operation in the management of environmental resources shared by two or more states; the principles of intergenerational and intragenerational equity; the polluter-pays principle; and the pre-cautionary principle.

In addition to the above factors which the ELC should consider in deciding whether environmental ADR is the most appropriate, the ELC should be innovative in adopting environmental ADR. Depending on the nature of the environmental dispute in question, the ELC should be able to determine the appropriate ADR mechanism that will settle the dispute in question. In most environmental ADR, mediation has been accepted as the most effective. In mediation, a neutral third party uses the facilitative approach to enable the parties reach a consensus and settle the disputes. It ensures that the decision reached is voluntary and this makes it easy for parties to abide by the agreed decision. Environmental arbitration should be invoked where the same is provided in law or the parties have in place an arbitration agreement. The ELC should not only limit itself to mediation, arbitration and conciliation, but endeavour to adopt and implement other methods of ADR.

The guiding principle should be to choose an ADR mechanism that is most appropriate to the particular environmental dispute. In choosing the appropriate mode of ADR, the ELC should take into consideration the specific characteristics of environment disputes. While the CoK provides a legal basis upon which environmental ADR can be invoked, there is need for continued education and awareness on the role of environmental ADR in settling environmental disputes. The judiciary, the ELC, civil society and educational institutions play a key role in creating awareness on the place of ADR on settling environmental disputes. This will enable the environmental litigants to appreciate and recognize the role of environmental disputes. There is need for the ELC to coordinate and cooperate with ADR institutions in the country. This kind of collaboration is very fundamental as such entities possess the required expertise in ADR.

Conclusion

Environmental matters involve a complex number of legal, scientific and technical issues. Environmental disputes also involve a number of stakeholders whose interests need to be protected. In some cases, due to the nature of environmental dispute, if not settled in time, it may cause more harm making the use of ADR inevitable. The ELC as a specialized court with judges possessing expertise and knowledge in environmental matters offers a forum for adopting ADR mechanisms. The judicial expertise and knowledge in environmental matters and litigation puts the judges in a better position to choose the best ADR mechanism for a particular dispute as environmental matters involve a complex of legal, scientific and technical issues. The ELC should grab this opportunity and invoke Section 20 of the ELC Act where appropriate in solving environmental disputes.

This article is an extract from the Article “Alternative Dispute Resolution in Environmental Disputes: A Case of the Specialized Environment and Land Court in Kenya” by Renson Mulele Ingonga published in (2018) Journal of Conflict Management and Sustainable Development, Volume 2(1), edited by Dr. Kariuki Muigua, PhD. The references and citations of sources are available in the Journal article.