By Silvana Wanjiru Kamau & George Skem

Introduction: Family businesses and the unique nature of boardroom conflict

Family-owned enterprises are built on trust, sacrifice and long memory. Many begin with one founder, one shop, one farm, one factory or one bold idea pursued through personal risk. Over time, that business transforms into a source of income, a family asset, a symbol of identity, a source of employment and often the most valuable intergenerational inheritance.

That is also why disputes in family-owned businesses are rarely ordinary commercial disagreements. A disagreement over dividends may also be a disagreement over fairness between siblings. A dispute over board control may carry the weight of old family grievances. A succession debate may be shaped not only by competence but also by birth order, loyalty, gender, education, proximity to the founder and perceptions of entitlement. In a family enterprise, ownership, management and kinship often sit in the same boardroom and once they collide, the result can be commercially dangerous.

The unique character of family business disputes lies in this overlap. In a listed company, a director may disagree with another director and still leave the meeting without the dispute entering the home. In a family business, the same disagreement may continue at family gatherings, funerals, weddings, WhatsApp groups and shareholder meetings. The boardroom becomes an extension of the family table. This creates strength when there is unity, speed and shared purpose on one hand and risk when emotions harden into factions.

The International Finance Corporation has long emphasized that family businesses need structures that separate family issues from business issues, especially as they move from founder-led enterprises to sibling partnerships and later cousin consortiums. That point is practical. The first generation may operate on trust, instinct and direct authority while subsequent generations require clearer rules. Without those rules, board disputes become personal contests disguised as governance debates.

Consider a common scenario where a founder has three children. One child works full-time in the business. Another sits on the board but runs an independent career. The third is a passive shareholder. The working child wants profits retained for expansion while the passive shareholders want dividends. The founder, now ageing, avoids choosing sides. The board cannot agree on the investment plan hence management decisions slow down. Bankers become nervous and senior employees begin to ask who is really in charge. What began as a dividend dispute becomes a governance crisis.

The cost of unresolved board conflicts

The costs of unresolved board disputes are financial, operational and reputational. Financially, disputes can freeze investment decisions, delay credit approvals, disrupt supplier relationships and reduce the confidence of lenders or investors. Operationally, management teams can become paralyzed when rival family directors issue competing instructions. Talented non-family executives may leave if they sense that professionalism has been replaced by family politics. Regarding reputation, public conflict can damage a brand built over decades.

For many family enterprises, reputation is not merely a marketing asset but a commercial currency. Customers, lenders, suppliers and employees often deal with the business because they trust the family name behind it. Once boardroom conflict becomes visible, that trust begins to erode. A prolonged dispute can suggest instability even where the business remains profitable. Investors may price in governance risk. Banks may require additional security. Business partners may insist on stricter payment terms. In some cases, the dispute becomes more damaging than the original issue that triggered it.

Continuity is the deeper concern. PwC’s family business surveys consistently show that family firms are concerned with trust, succession, transformation and long-term resilience. Additionally, KPMG’s 2025 work on family enterprise also frames succession not merely as a transfer of office, but as a broader transition of capital, leadership and purpose across generation. This means that board disputes are not just about today’s decision, but may determine whether the enterprise survives the next generation.

Why litigation often fails family enterprises

Litigation is sometimes necessary. There are cases where fraud, exclusion, breach of duty, asset dissipation or deliberate oppression may require court intervention. No serious governance adviser should pretend otherwise. Yet litigation is often a poor first response to family business conflict because its logic is adversarial. It asks who is right and who is wrong, hence producing winners and losers. It operates through pleadings, affidavits, evidence and public records, tools that may be necessary for enforcing rights but are rarely designed to repair relationships.

Court proceedings also move at a pace that may not match commercial reality. A family business may need a decision on financing within weeks. A court case may take months or years. Meanwhile, the business continues to operate under uncertainty. Board meetings become guarded and shareholder communication deteriorates. While each side speaks through lawyers, positions become fixed because they must defend what they have filed. The dispute becomes harder to resolve because everyone has now invested money, pride and reputation in being proven right.

Publicity is another problem. Family enterprises often prefer privacy because public conflict can destroy value. A dispute over succession, shareholding, dividends or directorship may reveal sensitive financial information, family disagreements, internal weaknesses or strategic plans. Once such information enters the public domain, competitors, creditors and opportunistic third parties may exploit it. Litigation can therefore turn a private governance problem into a public commercial vulnerability.

Most importantly, litigation rarely preserves relationships. Even after judgment, the parties may still remain siblings, cousins, parents, children, co-shareholders or co-directors. A court can determine legal rights but it cannot easily rebuild trust. It can order production of documents, restrain certain actions or declare ownership interests. It cannot make family members speak honestly, listen carefully or apologize sincerely. For that, a different process is needed.

Mediation as a strategic governance tool

Mediation is a structured negotiation facilitated by a neutral third party. The mediator does not impose a decision but rather helps parties identify issues, clarify interests, test options and work towards a voluntary settlement. Mediation is designed to give parties control over both the process and the outcome, while a neutral party assists them in exploring settlement.

This makes mediation particularly suited to family-owned enterprises. It recognizes that the dispute is not only legal, but may be commercial, emotional, historical and strategic at the same time. A court may ask whether a board resolution was valid but a mediator asks why that resolution was contested, what each side fears, what the business needs, what the family wants preserved and what arrangement can prevent the same conflict from recurring.

As Joseph Grynbaum states, an ounce of mediation is worth a pound of arbitration and a ton of litigation. The value of mediation lies in its flexibility. A court may have limited remedies but a mediated settlement can be more creative. Parties may agree on a phased succession plan, a dividend policy, a buy-out formula, a family council, a revised board charter, a liquidity window for passive shareholders or clearer employment rules. They may agree on information-sharing protocols, valuation mechanisms, or mentoring arrangements for the next generation. These solutions are often more commercially useful than a bare legal victory.

Mediation also allows parties to separate positions from interests. A founder may say, “I will not leave control.” The underlying interest may be fear that the children will destroy the business. A younger director may say, “We must modernize immediately.” The underlying interest may be frustration that the business is losing market share. A passive shareholder may say, “I want dividends now.” The underlying interest may be financial insecurity or a perception that working family members are benefiting disproportionately. Once the real interests are understood, better solutions become possible.

The Harvard Program on Negotiation has repeatedly stressed the importance of transparency, preparation and clear dispute-resolution processes in family business. That is precisely where mediation adds value since it creates a disciplined setting for difficult conversations. It allows parties to speak candidly and helps them focus on the future rather than only rehearsing the past.

Succession disputes are perhaps the clearest example. Many family businesses avoid succession planning because the topic is uncomfortable. Founders fear irrelevance, children fear appearing impatient while non-family executives fear being caught between camps. The board postpones the conversation until illness, death, retirement pressure or business decline forces action. By then, the family may be reacting under stress. Mediation can support succession by creating a safe forum for structured dialogue. The process can address who should lead, what qualifications are required, how non-family executives will be treated, what role the founder will retain and how dissenting family members will be protected. It can also help the family distinguish between equality and fairness. Equal shareholding may not mean equal salaries and equal family status may not mean equal management authority. Those distinctions are difficult, but mediation can make them discussable.

Ownership disputes also benefit from mediation. In many family enterprises, some shareholders work in the business while others do not. Over time, tensions arise over salaries, benefits, related-party transactions and reinvestment decisions. Working shareholders may feel they carry the burden while passive shareholders may feel excluded. The board becomes the battleground for these competing expectations. Mediation can help design rules that clarify compensation, dividend distribution, access to information and exit options.

Management control disputes are often more sensitive. A family member may hold a senior role without the competence required for the position. Another may be competent but lack family support. A non-family CEO may be undermined by informal instructions from family directors. The business may suffer because authority is unclear, hence mediation can help define performance standards, board oversight and the boundary between ownership influence and management autonomy.

Intergenerational transitions present a wider challenge. Younger family members may want digital transformation, external capital, new markets and modern governance While older family members may value caution, loyalty, reputation and control. Neither side is necessarily wrong, but the real issue is how to convert generational difference into strategy rather than conflict. Mediation helps because it allows both generations to explain not only what they want, but why and how they want it.

This is why mediation should not be seen merely as a dispute-resolution mechanism but a governance tool. Well-used mediation protects enterprise value by preventing conflict from consuming management time, weakening strategy or damaging stakeholder confidence. It protects family legacy by allowing disagreement without permanent rupture. It also strengthens governance by revealing gaps in documents, policies and decision-making structures.

Building a mediation culture in family-owned enterprises

The best family enterprises do not wait for disputes to explode before thinking about mediation, but rather institutionalize it. Shareholder agreements should include tiered dispute-resolution clauses that require negotiation and mediation before litigation, except in urgent cases requiring immediate protective relief. Family constitutions should provide clear principles on communication, succession, benefits, information rights and dispute management. Board charters should define how deadlocks are handled while family councils should provide a forum for issues that do not belong in the boardroom but affect the business.

A family constitution is especially useful because it addresses the relationship between the family and the enterprise. It can set out shared values, expectations, entry rules for family employees, conflict protocols and next-generation development. IDB Invest’s work on business family governance emphasises that protocols, agreements, codes of conduct and structured conflict-management mechanisms can help families manage disputes more effectively. The document is not a magic shield, but it gives the family a common language before conflict arises.

Enterprises should also consider standing mediation panels or named mediators in their governance documents. This avoids a common problem where when conflict arises, parties cannot even agree on who should mediate. A pre-agreed process saves time and signals that seeking mediation is not weakness but culture.

Independent directors can play a complementary role. They should not become informal mediators in disputes where they may later need to make board decisions. However, they can identify early warning signs, encourage structured dialogue and recommend mediation before positions harden. Professional advisers including lawyers, auditors, bankers and governance consultants should also treat mediation as a serious commercial option rather than an afterthought once litigation has already begun.

The central lesson is that family businesses survive across generations not because they avoid conflict, but because they manage conflict well. Disagreement is inevitable where money, power memory and identity meet. The question is whether those disagreements are channeled through structures that protect the business or allowed to become battles that destroy value.

Conclusion

Mediation offers family enterprises a commercially intelligent way to disagree. It preserves confidentiality, supports relationships, allows creative solutions and keeps decision-making in the hands of those who must live with the outcome. It strengthens good governance and creates space for disputes to be resolved in a manner that also protects the enterprise. Entrepreneurs should not wait until the boardroom becomes a battlefield but build mediation into the governance architecture of the enterprise. Put it in shareholder agreements, reflect it in family constitutions and use it in succession planning.

Ms Silvana Wanjiru is an advocate of the High Court of Kenya and corporate governance expert, with extensive experience advising organizations across both the private and non-profit sectors on complex legal, regulatory, and governance matters.

George Skem is a legal researcher and a legal assistant at SIlvana & Associates Advocates.

By Prof. Kariuki Muigua SC, OGW, PhD, FCS, FCIArb, Ch.Arb, Managing Partner Kariuki Muigua & Co. Advocates, Member Permanent Court of Arbitration (PCA) and Member Asian International Arbitration Centre Court of Arbitration

Introduction

The fifth edition of Prof. Kariuki Muigua’s authoritative work, Settling Disputes Through Arbitration in Kenya and Beyond: Technology, Justice and Equity (March 2026), arrives at a transformative moment in the evolution of dispute resolution. Since the fourth edition’s publication in 2022, arbitration practice has experienced “notable transformation”—courts have continued clarifying judicial intervention, institutions have strengthened procedural frameworks, and new developments have begun reshaping the architecture of dispute resolution. This edition responds by introducing critical new discussions on technology, artificial intelligence, ethics and gender justice, complementing the existing doctrinal analysis of arbitration law and practice in Kenya while situating the discussion within broader global evolution.

The timing is significant. The COVID-19 pandemic has fundamentally altered how legal services are delivered, accelerating adoption of virtual hearings, electronic filing, and digital case management. Artificial intelligence has moved from theoretical possibility to practical tool, capable of document review, predictive analytics, language translation and drafting assistance. Meanwhile, persistent concerns about gender representation—the underrepresentation of women as arbitrators and counsel—and ethical governance have gained renewed urgency. Prof. Muigua, a recipient of multiple awards including ADR Practitioner of the Year (2021), Lifetime Achievement Award from the Chartered Institute of Arbitrators-Kenya Branch, and African Arbitrator of the Year (2022), brings unparalleled expertise to examining these developments.

Structure and Scope

The book’s eighteen chapters trace arbitration’s lifecycle—from agreement and commencement through proceedings, award, enforcement and beyond—while incorporating thematic discussions of technology, ethics and international dimensions. The organisation reflects the author’s dual audience: students and general practitioners seeking comprehensive introduction, and experienced practitioners requiring detailed analysis of complex issues.

Part One (Chapters 1-3) establishes foundations. Chapter One introduces arbitration within the broader landscape of alternative dispute resolution, examining its constitutional recognition under Article 159 of the Constitution of Kenya 2010 and its attributes—confidentiality, party autonomy, flexibility, finality. The discussion of costs is notably candid: while arbitration ideally offers “expeditious and cost effective disposal,” the author acknowledges that “arbitral tribunals or arbitrators have to be paid for their services. Lawyers and party representatives also have to be paid and for this reason, arbitration can potentially end up being expensive” (p. 6). The chapter’s survey of other dispute management mechanisms—negotiation, mediation, conciliation, med-arb, arb-med, adjudication, traditional justice systems—provides context for understanding arbitration’s distinctive place.

Chapter Two examines the arbitration agreement comprehensively. The analysis of formal requirements under Section 4 of the Arbitration Act—writing, signature (or its absence), mutual consent, defined legal relationship, arbitrable subject matters, separability—draws extensively on Kenyan case law including Feisal Shariff Ibrahim v Daniel Kamau Chege [2021] eKLR, Kenya National Highways Authority v Pride Enterprises Limited [2020] eKLR, and Peter Ouma Onyango v Mats Karlsson [2021] eKLR. The discussion of separability under Section 17(a) traces the doctrine’s evolution from Heyman v Darwins (1942) through Harbour Assurance v Kansa (1993) to Kenyan applications in Kenya Airports Parking Services Ltd v Municipal Council of Mombasa [2009] eKLR and Infocard Holdings Limited v Attorney General [2014] eKLR.

Chapter Three addresses stay of legal proceedings under Section 6 of the Arbitration Act. The analysis examines conditions for grant—valid and enforceable agreement, applicant as party to agreement, dispute within scope, no steps taken to answer substantive claim—with detailed attention to timing requirements and the effect of the 2009 amendment requiring application “not later than the time when that party enters appearance or takes appropriate procedural steps to acknowledge the legal proceedings.” Cases including Esmailji v Mistry Shamji Lalji & Co. [1984] KLR 150, Niazsons (K) Ltd v China Road and Bridge Corporation (2001) eKLR, and Eunice Soko Mlagui v Suresh Parmar [2017] eKLR illustrate judicial application.

Part Two (Chapters 4-9) examines arbitration proceedings. Chapter Four addresses commencement and appointment of arbitrators, discussing notice of arbitration under institutional rules (CIArb Kenya Branch Rules 2020, UNCITRAL Arbitration Rules), appointment by parties, institutions and courts, and factors in choosing arbitrators—experience and qualifications, language, nationality, conflict of interest, personality and character. The chapter’s treatment of challenge procedures under Sections 13-15, including time limits, grounds (impartiality, independence, qualifications, capacity) and the High Court’s final jurisdiction, draws on Kenya Pipeline Company Limited v Kenya Oil Company Limited [2015] eKLR, Zadock Furnitures Limited v Central Bank of Kenya [2015] eKLR, and West Park Limited v Villa Care Limited [2020] eKLR.

Chapter Five examines jurisdiction and powers of arbitrators. The discussion of kompetenz-kompetenz under Section 17 traces the principle from its German origins through Safaricom Limited v Ocean View Beach Hotel Limited [2010] eKLR and Peter Ouma Onyango v Mats Karlsson [2021] eKLR. The analysis of interim protection measures under Section 18 examines the High Court’s residual jurisdiction and the requirement that parties seek tribunal approval before court intervention—a “matter of substance” not mere “procedural technicality” (Glamour Construction and Civil Engineering Company Limited v China Wu Yi Kenya Company Limited [2020] eKLR). The discussion of arbitrators as “master of procedure” under Section 20, including power to determine evidence admissibility, relevance and weight, emphasises that the Evidence Act does not apply to arbitration proceedings (Goodison Sixty One School Limited v Symbion Kenya Limited [2017] eKLR).

Chapters Six through Nine examine modes of opposing arbitration, preparation for proceedings, hearings, and awards, costs and interest. The discussion of arbitrability in Chapter Six is particularly significant, examining the expansion of arbitrable subject matters following TSJ v SHSR [2019] eKLR, where the Court of Appeal held that “there is nothing in the Arbitration Act that would prevent disputes ‘of a personal nature’… being resolved under the framework of that Act.” This represents a significant departure from earlier restrictions limiting arbitration to commercial disputes, opening possibilities for arbitration in family matters, inheritance and personal status.

Part Three (Chapters 10-12) examines the interface between arbitration and courts. Chapter Ten’s analysis of court intervention under Section 10—”Except as provided in this Act, no court shall intervene in matters governed by this Act”—is masterful, tracing the principle from UNCITRAL Model Law Article 5 through English Arbitration Act 1996 Section 1(c) to Kenyan applications. The chapter’s treatment of the Supreme Court’s decisions in Nyutu Agrovet Limited v Airtel Networks Kenya Limited [2019] eKLR and Synergy Industrial Credit Limited v Cape Holdings Limited [2019] eKLR addresses the vexed question whether appeals lie from High Court decisions under Section 35. The majority’s conclusion that appeals may lie “in exceptional circumstances” where the High Court “stepped outside the grounds set out in the said Section and thereby made a decision so grave, so manifestly wrong and which has completely closed the door of justice to either of the parties” is contrasted with the dissenting opinion of Chief Justice Maraga, who held that “if the principle of finality is limited to the arbitral awards only and not to any court proceedings founded on them… then the objectives of arbitration would be defeated and arbitration will be ‘a precursor to litigation.'”

Part Four (Chapters 13-18) examines international and contemporary dimensions. Chapter Thirteen addresses promoting international commercial arbitration in Kenya, examining legal framework (Arbitration Act, New York Convention, ICSID Convention, Nairobi Centre for International Arbitration Act), extent of court intervention, and challenges including inadequate legal frameworks, appointment practices favouring non-African arbitrators, inadequate marketing, uncertainty in drafting, perceived judicial interference, uncertainty of costs, perception of corruption, and bias against Africa. The chapter’s recommendations—enhanced capacity, marketing and “arbi-tourism,” security, adherence to rule of law, supportive institutional framework and informed judges, international cooperation, finality, easy access and travel, effective supporting institutions, enhanced internet access and cybersecurity, addressing corruption—provide a roadmap for positioning Kenya as preferred arbitral seat.

Chapter Fourteen examines trade and investments treaty arbitration, addressing development of investor-state dispute settlement (ISDS), international and regional regulatory approaches, the African Continental Free Trade Agreement (AfCFTA), challenges and prospects. The analysis of ISDS concerns—lack of legitimacy and transparency, inconsistencies between awards, difficulties correcting erroneous decisions, questions about arbitrators’ independence, costs and duration, “regulatory chill” discouraging public welfare regulations—is balanced and nuanced. The discussion of Africa’s role in reform examines options including “no ISDS,” standing ISDS tribunals, limited ISDS, improved ISDS procedures, and unreformed ISDS mechanisms, as well as “Africanisation” through the Pan-African Investment Code and regional courts.

New Contributions: Technology and AI in Arbitration

Chapter Sixteen, “Technology and Artificial Intelligence in Arbitration,” represents a significant addition to this edition. The chapter examines how technology and AI are transforming arbitration practice, enhancing access to justice, and raising new ethical and regulatory challenges.

The discussion of technology and access to justice is grounded in constitutional and sustainable development frameworks. Access to justice—”the ability of every citizen to seek and obtain effective remedies through formal or informal institutions of justice”—is recognised as “a key pillar of the rule of law and Sustainable Development” under SDG 16. Technology offers “effective solutions towards improving access to justice,” including “scalable, transparent, responsive, innovative and data-driven transformation of justice systems” when principles of “openness, inclusiveness and accountability” are respected. The Judiciary of Kenya’s initiatives—virtual courts, e-filing systems, case tracking systems—are cited as “transformative approach towards strengthening access to justice.”

Online Dispute Resolution (ODR) receives extended treatment. Defined as “the process of managing disputes on the internet through the use of suitable technology or platforms,” ODR encompasses “online mediation, online arbitration, and block chain arbitration.” The COVID-19 pandemic accelerated adoption of “virtual court sessions, electronic filing of pleadings and online delivery of judgments and rulings.” ODR’s advantages—”flexible, expeditious and affordable resolution of disputes,” particularly for “geographically separated parties”—are balanced against challenges including the digital divide and cybersecurity concerns.

The analysis of AI in arbitration practice is both practical and forward-looking. AI applications examined include:

• Drafting arbitration clauses: AI can “propose drafting suggestions therefore helping clients and lawyers eliminate errors, integrate all pertinent provisions, identify blind spots and ensure their interests are protected.”
• Appointing arbitrators: AI can “aid parties to make sound decisions by examining thousands of candidates’ track records in similar cases.”
• Document review: AI can “filter out relevant documents thus enhancing the efficiency and speed of dispute resolution” in document-intensive arbitrations.
• Legal research: AI can “automating legal research, organizing evidence, aiding in document review and analyzing relevant case law and statutes.”
• Language translation: AI “enhancing efficiency in cross border dispute resolution through international arbitration by facilitating language translation.”
• Text summarisation: AI “aiding in efficient dispute resolution through arbitration” through “text summarization and production of relevant case notes.”
• Writing arbitration awards: AI “promises to render awards more expeditiously when compared to human arbitrators who take months or years to render an award,” with “ability to learn from past awards more quickly and efficiently.”

Yet the chapter also identifies significant risks and ethical concerns. Algorithmic biases can undermine suitability: “AI models are only as good as the data they are trained on and therefore, if the data is biased, incomplete, or inaccurate, the AI model’s predictions and decisions will also be biased, incomplete, or inaccurate.” This is “particularly relevant in the context of cultural, language, gender and racial biases.” Transparency and due process concerns arise where “AI models make decisions through patterns that humans cannot fully understand,” creating “issues around transparency and trust.” Data security risks emerge because “ODR platforms handle sensitive personal data, including financial details, health records, personal disputes, personal contact information and legal information”—data vulnerable to “breaches or unauthorized access undermining the right to privacy.”

Regulatory and institutional responses examined include UNCITRAL’s Dispute Resolution in the Digital Economy (DRDE) initiative, UNCITRAL Technical Notes on Online Dispute Resolution, institutional rules permitting virtual hearings (ICC Arbitration Rules 2021 Article 26(1), LCIA Arbitration Rules 2020 Article 19.2), NCIA Virtual Hearing Guidelines 2020, and the International Council for Commercial Arbitration Protocol on Cybersecurity in International Arbitration. The chapter concludes that “technology will not replace arbitrators but will increasingly shape the architecture of arbitration practice,” requiring investment in “necessary digital infrastructure,” strengthening “cybersecurity measures for data privacy and security,” and ensuring “human oversight for transparency, accountability and due process.”

New Contributions: Justice, Equity, Gender and Ethics

Chapter Seventeen examines justice, equity, gender and ethics in arbitration—another significant addition to this edition. The chapter argues that “justice, equity, inclusivity and ethics are cardinal principles that need to be harnessed in order to enhance the appropriateness of arbitration and ADR.”

The analysis of gender representation documents persistent disparities. “The international and domestic arbitration landscape is dominated by male practitioners, with few women engaged as arbitrators or lead counsel.” In international arbitrations, “male arbitrators are appointed more often reflecting gender biases.” Causes examined include: gender biases perceiving women as “less likely to assertively negotiate in legal settings”; “assertive communication and negotiation styles, which are often reflected in arbitration, may disadvantage women who are socialized into more adaptive, collaborative and conciliatory styles”; tendency to “appoint the same arbitrators repeatedly due to experience, reputation and expertise,” where “most of these arbitrators are male who have arbitrated for many years”; and “inadequate representation of women in professional ADR establishments.” Progress is noted, including the Equal Representation in Arbitration Pledge (ERA Pledge) launched in 2016, seeking to “ensure fair representation and improve the visibility of women in arbitration.”

Attaining gender justice requires multiple interventions: increasing “appointment of women arbitrators and counsel”; ensuring “gender equity in appointments” through arbitral institutions; ensuring “women are fairly represented on lists of potential arbitrators”; enhancing “opportunities for training and mentorship of women arbitrators”; and ensuring “procedural fairness and gender-sensitive approaches to dispute resolution” including “giving women a voice to be heard while also recognising and respecting different styles of communication.”

The analysis of ethical responsibilities examines five fundamental duties. Impartiality requires “refraining from exhibiting favouritism or prejudice towards any party or any position taken by a party in arbitration”—”absence of external control as well as any absence of bias and predisposition towards a party.” Independence refers to “the objective and external manifestation of the relationship between the parties, counsels and arbitrators”—an “objective test” distinct from the “subjective” test of impartiality. Competence requires arbitrators to “know the limit of their ability; to avoid taking on disputes that they are not equipped to handle; and to communicate candidly with the parties about their background and professional experience.” Confidentiality involves “maintaining integrity of the arbitration process by avoiding disclosing matters to third parties.” Disclosure of conflicts requires arbitrators to “disclose all actual and potential conflicts of interest known to them and avoid acting in cases where their judgment may be impaired due to conflict of interest.”

Professional standards examined include the Chartered Institute of Arbitrators Code of Professional and Ethical Conduct for Members (requiring integrity, fairness, disclosure, competence, maintaining trust and confidence), NCIA Code of Conduct for Arbitrators 2021 (disclosure, honesty, trust, confidentiality, decisions in “just, independent and deliberate manner”), and IBA Guidelines on Conflicts of Interest in International Arbitration 2024 (requiring impartiality and independence, disclosure, declining appointment where doubt exists). The chapter concludes that “embracing ethics in arbitration is vital for integrity, public confidence, credibility and legitimacy of dispute resolution.”

Critical Assessment

Strengths. The book’s comprehensive scope is its greatest strength. Eighteen chapters trace arbitration from agreement through enforcement, incorporating international dimensions, investment treaty arbitration, technology, AI, ethics and gender justice. This breadth, combined with depth of analysis drawing on Kenyan case law, statutory provisions, institutional rules and comparative experience, makes the volume an indispensable reference for practitioners, scholars and students.

The integration of new material on technology and AI is timely and sophisticated. Rather than mere technological enthusiasm, the analysis balances recognition of AI’s potential—efficiency, speed, cost reduction, language translation, document review, award writing—with careful attention to risks and ethical concerns—algorithmic bias, transparency deficits, due process concerns, data security. The discussion of regulatory responses—UNCITRAL initiatives, institutional rules, cybersecurity protocols—provides practical guidance for practitioners navigating this evolving landscape.

The treatment of ethics and gender justice addresses concerns central to arbitration’s legitimacy. The documentation of gender disparities, analysis of causes, and identification of interventions—increased appointments, fair representation on lists, training and mentorship, procedural fairness, gender-sensitive approaches—provides a roadmap for meaningful change. The examination of ethical responsibilities—impartiality, independence, competence, confidentiality, disclosure—articulates standards essential for maintaining public confidence.

The analysis of Kenyan case law is exemplary. The book engages extensively with High Court, Court of Appeal and Supreme Court decisions, tracing the evolution of jurisprudence on stay of proceedings, court intervention, kompetenz-kompetenz, appeals under Section 35, and arbitrability. The treatment of the Supreme Court’s decisions in Nyutu Agrovet and Synergy Industrial Credit is particularly valuable, examining the tension between finality and fairness and the Court’s careful calibration permitting appeals “in exceptional circumstances” while preserving arbitration’s essential attributes.

The discussion of investment treaty arbitration and AfCFTA addresses issues of critical importance to African development. The analysis of ISDS concerns—lack of legitimacy, inconsistencies, costs, regulatory chill—is balanced, while the examination of reform options and “Africanisation” through the Pan-African Investment Code and regional courts provides constructive pathways forward.

Limitations. The book’s length (over 400 pages of main text, plus extensive tables of cases, statutes and index) may challenge readers seeking concise introduction. Students and practitioners new to arbitration would benefit from clearer signposting of essential chapters and themes.

Contribution to Scholarship and Practice

Prof. Muigua’s fifth edition makes several significant contributions to arbitration scholarship and practice in Kenya and beyond.

First, it provides comprehensive documentation and analysis of Kenyan arbitration law and practice, integrating statutory provisions, institutional rules and extensive case law. This is invaluable for practitioners navigating Kenyan arbitration and for scholars examining arbitration’s development in Africa.

Second, it advances understanding of arbitration’s constitutional foundations under Article 159 of the Constitution of Kenya 2010, examining how constitutional imperatives—access to justice, promotion of ADR, respect for traditional dispute resolution mechanisms—shape arbitration’s role in Kenya’s justice system.

Third, it offers sophisticated analysis of emerging issues—technology, AI, ethics, gender justice—that are transforming arbitration practice globally. The integration of these discussions within traditional doctrinal analysis demonstrates how arbitration must evolve to maintain legitimacy and effectiveness.

Fourth, it examines investment treaty arbitration and AfCFTA from an African perspective, addressing concerns about ISDS legitimacy while identifying pathways for African states to participate in shaping international investment law.

Fifth, it provides practical guidance for practitioners at all levels—from students seeking introduction to experienced arbitrators navigating complex procedural questions—while maintaining scholarly rigour throughout.

Conclusion

Prof. Kariuki Muigua’s Settling Disputes Through Arbitration in Kenya and Beyond: Technology, Justice and Equity (Fifth Edition) is a monumental contribution to arbitration scholarship and practice. Its comprehensive scope, sophisticated analysis of Kenyan case law, integration of new material on technology, AI, ethics and gender justice, and sustained attention to constitutional foundations and international dimensions make it an indispensable resource for practitioners, scholars and students.

The book’s central thesis—that arbitration’s legitimacy depends on its ability to evolve while maintaining core attributes of fairness, efficiency and party autonomy—is both timely and persuasive. As technology transforms dispute resolution, as AI raises new ethical challenges, as persistent gender disparities demand redress, arbitration must adapt while preserving the values that make it attractive: confidentiality, flexibility, finality, party control.

The dedication to “those who dare to dream and keep hope alive in the face of adversity pain and discouragement… the resilient and the determined… those who never give up… those who seek to resolve conflicts and to build peace” captures the work’s spirit. Settling Disputes Through Arbitration is not merely a technical manual but a sustained meditation on arbitration’s role in promoting access to justice, commercial certainty and peaceful dispute settlement in Kenya and beyond.

For practitioners seeking guidance on arbitration procedure, for scholars examining arbitration’s evolution in Africa, for policymakers designing institutional frameworks, for students entering the field, and for all concerned with the future of dispute resolution, this book is essential reading. The fifth edition ensures that Prof. Muigua’s authoritative work remains at the forefront of arbitration scholarship, responsive to emerging challenges while grounded in enduring principles.

This is a review of the book: Settling Disputes Through Arbitration in Kenya and Beyond: Technology, Justice and Equity (March 2026) (Fifth Edition) by Prof. Kariuki Muigua SC, available here.

Case: David W. Gachogu & Another v Thathini Development Company Limited & 2 Others

Citation: Civil Appeal No. E063 of 2023 (2026 KECA 306 (KLR))

Court: Court of Appeal at Mombasa

Coram: Murgor, J. Mohammed & Ngenye, JJ.A.

Date: 20 February 2026

Background Facts

The 1st Respondent, Thathini Development Company Limited, a land-buying company incorporated in 1978, sued the 1st Appellant (David W. Gachogu) and a deceased co-owner (later withdrawn) who were directors and shareholders. The 1st Respondent claimed that the 1st Appellant and the deceased fraudulently transferred the suit property, Mombasa/MN/Thathini/112 (approximately 30.5 hectares), into their joint names in March 2007 without company authority or board resolution, breaching fiduciary duties. Following the transfer, they leased a portion to the 2nd Respondent, Safaricom Company Limited, for a telecommunications mast, with annual rent of Kshs. 160,000. The 1st Respondent sought cancellation of the transfer, rectification of the register, and injunctive relief. The deceased co-owner died in July 2009, and the suit against him was formally withdrawn in March 2017.

Key Legal Issues

1. Whether the trial court erred in ordering only the 1st Appellant to surrender the title despite joint ownership.
2. Whether fraud was proved to the required legal standard.
3. Whether the trial court properly granted orders for refund of rental income and corporate governance directives not pleaded.

Court’s Analysis & Decision

The Court of Appeal identified five issues but focused on the core determinations:

On Joint Ownership & Survivorship: The Court examined joint tenancy under Section 91(4) of the Land Registration Act and the doctrine of jus accrescendi (right of survivorship). The Court held that upon the deceased’s death in 2009, his interest automatically vested in the 1st Appellant as the surviving joint tenant. The 1st Appellant became sole owner, and the trial court could rightfully order him to surrender the title. The contention that the order was unenforceable due to joint ownership failed.

On Proof of Fraud: Applying Section 26(1) of the Land Registration Act, the Court affirmed that a registered proprietor must prove lawful acquisition when title is challenged. The 1st Appellant admitted holding only 61 shares (entitling him to one acre) while the deceased held 181 shares, yet they allocated themselves 75.37 acres. No board resolution, AGM minutes, or company authorization was produced. The Registrar of Companies confirmed no AGM was ever held, and the Land Registrar admitted no CR12 or resolution accompanied the transfer. These anomalies established fraud to the required standard. The trial court’s finding of fraud was upheld.

On Unpleaded Remedies: The Court held that a court cannot grant remedies not specifically pleaded. The amended plaint did not pray for refund of rental income or corporate governance directives (AGM, elections, annual returns). The order for refund of rental income and the corporate directives were set aside as extraneous and beyond the court’s remit.

Final Orders

The Court:

1. Affirmed the orders for cancellation of title and rectification of the register in favour of the 1st Respondent.
2. Set aside the orders directing refund of rental income, convening of an AGM, election of directors, filing of annual returns, and renegotiation of the lease.
3. Directed each party to bear its own costs due to partial success.

Significance & Implications

• Joint Tenancy & Survivorship: Upon death of a joint tenant, the entire interest automatically vests in the surviving joint tenant by operation of law (jus accrescendi). Substitution of the deceased’s estate is unnecessary for claims against the property.
• Fraud & Indefeasibility: Section 26 of the Land Registration Act permits challenge to title obtained through fraud or illegality. A registered proprietor must prove lawful acquisition when title is challenged; admissions and documentary gaps can constitute sufficient proof.
• Pleadings Bind Courts: Courts cannot grant remedies not pleaded. Orders must flow from pleadings and issues framed by parties.
• Director Liability: Directors breaching fiduciary duties by diverting corporate assets without proper authorization risk having such transactions nullified, regardless of registration.
• Extraneous Orders: Courts should not issue directives on corporate governance matters not placed in issue by the pleadings.