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

Climate Finance, Carbon Markets and Environmental Justice in Africa (March 2026) by Hon. Prof. Kariuki Muigua is a timely and comprehensive work examining the intersection of climate finance, carbon markets, and environmental justice on the African continent. The book’s central thesis—that climate responses must be designed and implemented in a manner that safeguards rights, promotes fairness, and ensures benefits are equitably distributed—provides a sophisticated framework for understanding how financial flows, market-based mechanisms, and regulatory frameworks intersect with law, policy, and community realities across Africa. Situated within the broader discourse on climate justice, this volume interrogates both opportunities and emerging risks associated with climate action in a continent that contributes minimally to global emissions yet bears disproportionate climate impacts.

Overview

The volume comprises twelve chapters organized into four thematic parts. Part I establishes foundations for fair and equitable climate finance. Chapter One examines climate finance through an environmental justice lens, arguing that access to timely, adequate, and equitable climate finance is vital for the Global South. The chapter analyses how prevailing financing structures may reinforce dependency and inequality, with climate finance often delivered through loans on unfavourable terms that contribute to Africa’s growing debt crisis. Prof. Muigua argues that avoiding debt traps, narrative injustice, and recolonization of the Global South requires developed countries to fulfil their climate finance commitments and enhance the voice of developing countries in global decision-making processes.

Chapter Two rethinks climate finance in Africa within the continent’s debt and development realities. The chapter observes that despite Africa’s extreme vulnerability to climate change, the continent receives only around two percent of total global climate finance. Furthermore, climate finance is linked to the debt crisis, with debt constituting nearly forty percent of climate finance flows to African countries already experiencing debt distress. Prof. Muigua calls for overhauling the international climate finance system to make it fairer, including through enhanced access to grants and concessional finance, elimination of bureaucratic hurdles, and implementation of the Loss and Damage Fund.

Chapter Three examines climate finance and equitable benefit sharing with particular focus on indigenous and local communities. These communities are disproportionately impacted by climate change due to their dependence upon and close relationship with the environment, yet they are often sidelined in climate finance decision-making processes. Prof. Muigua argues that fully and effectively engaging indigenous peoples and local communities in the design, development, and implementation of climate finance activities is essential for upholding their rights, respecting their cultural needs, and addressing their unique vulnerabilities.

Chapter Four explores unlocking climate finance for sustainable development in Africa, examining structural and institutional pathways for mobilising finance. The chapter highlights the need for innovative financial tools including green bonds and debt-for-nature swaps, strengthening governance frameworks, and implementing global commitments including the Loss and Damage Fund and Kunming-Montreal Global Biodiversity Framework.

Part II addresses carbon markets, projects, and justice. Chapter Five examines carbon projects through the lens of justice and equity, focusing on access to information, Free, Prior and Informed Consent (FPIC), and equitable benefit sharing. The chapter argues that while carbon projects can strengthen climate action and provide co-benefits including job creation and ecosystem restoration, poorly designed projects can cause human rights violations and environmental damage. Ensuring good governance in carbon projects is imperative for fostering climate justice.

Chapter Six analyses participation and governance in carbon projects, exploring how environmental democracy—comprising access to information, public participation, and access to justice—can be integrated into carbon project governance. The chapter observes that carbon projects can undermine environmental democracy when investors fail to obtain FPIC, when transparency and accountability concerns arise, and when disputes over land rights emerge. Fostering environmental democracy requires enhanced access to information, meaningful public participation, access to justice through both litigation and Alternative Dispute Resolution, and equitable benefit sharing.

Chapter Seven develops a conceptual framework for carbon justice in Africa, examining principles of fairness, rights, and sustainability in carbon governance. The chapter identifies carbon injustices including transparency challenges, inequitable benefit sharing, and violation of indigenous land rights. Applying carbon justice tenets requires meaningful involvement of stakeholders, strengthening land tenure rights, ensuring transparency, fostering equitable benefit sharing, and ensuring access to justice.

Part III focuses on carbon disputes and enforcement. Chapter Eight introduces disputes arising in carbon markets, examining risks including greenwashing, information asymmetry, misleading conduct, insider trading, and price manipulation. The chapter analyses available dispute management mechanisms including arbitration, litigation, and conciliation, arguing that arbitration offers particular advantages including party autonomy, flexibility, expertise, transnational applicability, and enforceability of awards.

Chapter Nine examines dealing with carbon disputes for green growth and sustainability. The chapter argues that carbon disputes—whether arising from carbon accounting challenges, pricing fluctuations, or land disputes between investors and indigenous communities—can undermine the effective functioning of carbon markets. Managing carbon disputes through both litigation and ADR processes is essential for ensuring carbon markets contribute to green growth and sustainable development.

Chapter Ten focuses on arbitrating carbon disputes, examining arbitration’s role in managing disputes arising from carbon markets. The chapter argues that arbitration is a viable mechanism due to its ability to accommodate specialized expertise, ensure neutrality in cross-border disputes, maintain confidentiality for commercially sensitive information, and provide enforceability through the New York Convention. Addressing challenges including transparency concerns and costs requires building capacity and awareness among arbitration practitioners and adopting specialized rules tailored to carbon markets.

Part IV addresses decarbonization and future directions. Chapter Eleven examines policy pathways for achieving green growth and carbon neutrality in Africa, analysing sustainability strategies and their implications for development. The chapter argues that green growth—growth that is environmentally sustainable, low-carbon, and socially inclusive—and carbon neutrality—balancing carbon emissions with carbon removal—provide efficient pathways toward sustainable development. Achieving these goals requires considerable investment in renewable energy, low-emission transport, energy-efficient building, sustainable agriculture, and forest management.

Chapter Twelve examines decarbonizing energy for climate action and justice, evaluating how decarbonization pathways can support inclusive and sustainable development. The chapter argues that while energy is a vital resource enabling human progress, the energy sector is the dominant contributor to climate change, accounting for nearly two-thirds of global greenhouse gas emissions. Decarbonizing energy through shifting from fossil fuels to renewable sources including wind, solar, and geothermal, coupled with improving energy efficiency across all sectors, is fundamental for climate action and social justice.

Key Themes

Climate Justice and Environmental Justice. The book advances climate justice as a key ideal for upholding equity, fairness, inclusivity, and human rights in climate action. Prof. Muigua argues that climate change is a major cause of injustices and inequalities, with people and communities who have contributed the least being affected the most. Climate justice acknowledges that climate change effects are not evenly felt and focuses on protecting the most vulnerable including the poor, women and girls, youth, indigenous peoples, and local communities. Environmental justice encompasses the right to access natural resources, not to suffer disproportionately from environmental policies, and to have environmental information and participation in decision-making processes.

Fair and Equitable Climate Finance. The book critically examines the climate finance landscape, arguing that access to adequate and timely climate finance is a matter of justice for the Global South. Prof. Muigua demonstrates how current financing structures may reinforce dependency and inequality, with climate finance often delivered on unfavourable terms that contribute to debt crises. The principle of common but differentiated responsibility requires developed countries to provide financial resources to assist developing countries responding to climate change. Reforming the international financial system to make climate finance more affordable and adequate for developing countries is essential for environmental justice.

Carbon Markets and Environmental Democracy. The book explores how carbon markets can strengthen climate action while also raising critical concerns relating to environmental democracy. Prof. Muigua argues that carbon projects can undermine democracy when investors fail to obtain FPIC, when transparency and accountability concerns arise, and when disputes over land rights emerge. Fostering environmental democracy in carbon projects requires enhanced access to information, meaningful public participation, access to justice, and equitable benefit sharing. The three mutually reinforcing rights of environmental democracy—access to information, participation in decision-making, and access to justice—provide a framework for ensuring carbon projects serve people and planet.

Free, Prior and Informed Consent and Equitable Benefit Sharing. The book places FPIC and equitable benefit sharing at the centre of just carbon governance. FPIC is a fundamental right of self-determination ensuring participation by all people with particular focus on indigenous peoples and local communities in development projects. It allows communities to give or withhold consent to projects affecting their territories and to withdraw consent at any stage. Equitable benefit sharing ensures both monetary and non-monetary benefits from carbon projects are enjoyed by all stakeholders including indigenous peoples, landowners, and local communities who contribute significantly to project success.

Dispute Management in Carbon Markets. The book provides comprehensive analysis of disputes arising in carbon markets and mechanisms for their management. Prof. Muigua identifies causes including lack of clarity in carbon accounting, greenwashing claims, pricing fluctuations, and land disputes between investors and indigenous communities. Arbitration emerges as a preferred mechanism due to party autonomy, flexibility, expertise, neutrality, transnational applicability, and enforceability of awards. However, the book also recognises the importance of negotiation, mediation, and conciliation for preserving relationships and ensuring the long-term viability of carbon projects.

Conclusion

Climate Finance, Carbon Markets and Environmental Justice in Africa is a seminal work elevating discourse on climate action from African perspectives. Prof. Muigua demonstrates that confronting climate change requires not only technical solutions but also fundamental attention to justice, equity, and human rights. The book argues that climate finance must be restructured to avoid debt traps and recolonization, carbon markets must be governed through environmental democracy principles including FPIC and equitable benefit sharing, and disputes must be managed through effective mechanisms that preserve relationships and ensure accountability. This volume is essential reading for legal practitioners, policymakers, scholars, development practitioners, and all committed to advancing climate justice and sustainable development in Africa.

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 third edition of Prof. Kariuki Muigua’s comprehensive work arrives at a pivotal moment in Kenya’s justice sector evolution. Since the second edition in 2017, court-annexed mediation has expanded beyond Nairobi to stations nationwide, constitutional recognition under Article 159 has gained deeper traction, and questions about balancing institutionalisation with accessibility have gained urgency. Prof. Muigua, recipient of multiple awards including ADR Practitioner of the Year (2021) and Lifetime Achievement from CIArb-Kenya, brings decades of practice as mediator, arbitrator and scholar to this updated edition, which incorporates new discussions on access to justice, family mediation, professional ethics, and alternative justice systems.

Structure and Scope

The sixteen chapters are organised into four thematic parts. Part I (Chapters 1-4) establishes conceptual foundations. Chapter One introduces mediation’s attributes—voluntariness, party autonomy, confidentiality, flexibility, informality, cost-effectiveness—distinguishing mediation in the political process (leading to resolution) from mediation in the legal process (leading only to settlement). The survey of other ADR mechanisms provides essential context. Chapter Two examines traditional conflict resolution mechanisms among African societies, documenting principles of common humanity (Ubuntu/Utu), reciprocity and respect, and institutions including the family, clan, council of elders, age-set systems, and mechanisms such as kinship ties, joking relations, consensus approaches, and the role of elders. The chapter argues that realising access to justice requires enhanced application of traditional forms, which remain part of Kenyan society and hence their constitutionalisation.

Chapter Three examines mediation’s attributes in depth, providing a comparative table demonstrating that political process mediation has fifteen positive attributes while legal process mediation has only five, explaining why the former leads to enduring outcomes addressing root causes while the latter produces only superficial settlements. Chapter Four distinguishes conflicts (non-negotiable needs and values) from disputes (negotiable interests), arguing conflicts require resolution through non-coercive mechanisms like mediation while disputes can be settled through coercive mechanisms like litigation.

Part II (Chapters 5-9) examines practical dynamics. Chapter Five explores mediation as “assisted negotiation” where a mediator with no decision-making authority facilitates communication. Chapter Six analyses settlement (power-based, temporal, addressing only surface issues) versus resolution (addressing root causes, producing enduring outcomes). Chapter Seven examines the three-phase mediation process: pre-negotiation, negotiation (active listening, reframing, caucusing), and post-negotiation implementation. Chapter Eight examines the mediation paradigm—parties, constituents, third parties, and societal factors. Chapter Nine examines psychological issues, arguing all disputes involve injury to feelings and mediators must address emotional needs through empathy and creative problem-solving.

Part III (Chapters 10-11) examines legal frameworks. Chapter Ten traces mediation’s evolution from the 2009 amendments through the Constitution to court-annexed mediation, providing detailed analysis of the pilot project’s statistics (421 referrals, 61 settlements, 28.5% settlement rate, 66 days average duration) and external evaluation recommendations. The chapter critiques court-annexed mediation as potentially sacrificing core attributes—voluntariness, informality, party autonomy—at the altar of legalism. Chapter Eleven examines mediation and access to justice, analysing environmental conflicts (involving actors, resources and stakes) and family mediation, noting that while the Marriage Act 2014 contemplates reconciliation, there are no clear guidelines for divorce, custody, or property division mediation.

Part IV (Chapters 12-16) examines contemporary developments. Chapter Twelve examines entrenching family mediation, arguing it empowers parties to negotiate mutually agreed decisions, reduces post-divorce conflict, and promotes children’s best interests. It examines standards of practice, power imbalances, and cross-disciplinary training. Chapter Thirteen examines mediation and alternative justice systems, analysing their efficacy (rooted in culture, accessible, affordable, focused on reconciliation) and challenges (patriarchal values, procedural fairness concerns). It examines the Alternative Justice Systems Framework Policy’s interventions for mainstreaming AJS while addressing human rights concerns.

Chapter Fourteen provides comprehensive analysis of ethics: impartiality, independence, competence, confidentiality, disclosure of conflicts, quality of process, costs and fees, and termination. It examines professional standards from UNCITRAL, Singapore Convention, ICC, CIArb, NCIA, and Kigali International Arbitration Centre, identifying ethical dilemmas and proposing enhanced training and institutional enforcement. Chapter Fifteen reflects on mediation’s future, examining opportunities in access to justice, environmental democracy, and sustainable development. Recommendations include facilitative frameworks bridging traditional and formal mechanisms, embedding mediation in devolved administration, multi-door courtrooms, mediator training, codes of conduct, institutionalising women’s role, and appropriate accreditation committee composition. Chapter Sixteen concludes that mediation’s future success depends on maintaining balance between institutionalisation and accessibility while preserving core attributes.

Critical Assessment

Strengths. The book’s comprehensive scope is its greatest strength. Sixteen chapters trace mediation from foundations through practice to contemporary developments, integrating traditional mechanisms, legal frameworks, psychological dimensions, ethics, and future trajectories. This breadth, combined with depth drawing on Kenyan case law, statutory provisions, institutional rules, comparative experience, and empirical research, makes the volume indispensable.

The integration of traditional conflict resolution mechanisms is particularly valuable. Rather than treating mediation as imported Western innovation, Prof. Muigua grounds analysis in Kenya’s traditions of community-based resolution, documenting institutions and mechanisms that provide essential foundation for understanding mediation’s cultural resonance and constitutional recognition under Article 159.

The analysis of court-annexed mediation is both thorough and critical, documenting pilot project implementation and evaluation while questioning whether institutionalisation preserves mediation’s core attributes. The consistent distinction between political process mediation (leading to resolution) and legal process mediation (leading only to settlement) provides a framework for evaluating institutionalisation efforts.

The treatment of psychological issues adds distinctive depth, examining how mediators must address emotional needs through empathy and creative problem-solving. The ethics chapter provides comprehensive guidance on fundamental responsibilities and professional standards, identifying dilemmas and proposing practical responses.

Limitations. The collection format has produced repetition of foundational concepts across chapters. While thorough, some topics might benefit from deeper empirical engagement with comparative data. The length may challenge readers seeking concise introduction.

Contribution to Scholarship and Practice

The book provides comprehensive documentation of Kenyan mediation law and practice, invaluable for practitioners and scholars. It advances understanding of mediation’s constitutional foundations under Article 159, examining how constitutional imperatives shape mediation’s role. It offers sophisticated analysis of traditional conflict resolution mechanisms, arguing mediation in Africa is not imported innovation but continuation of longstanding cultural traditions. It provides practical guidance for practitioners while maintaining scholarly rigour. It contributes to policy development by analysing court-annexed mediation implementation and proposing reforms. It advances understanding of emerging areas—family mediation, AJS, ethics—reshaping Kenyan practice.

Conclusion

Prof. Muigua’s Resolving Conflicts Through Mediation in Kenya (Third Edition) is a monumental contribution to mediation scholarship and practice. Its central thesis—that mediation’s strength lies in transforming conflict into dialogue, and its future depends on balancing institutionalisation with accessibility while preserving core attributes—is timely and persuasive. For practitioners, scholars, policymakers and students, this book is essential reading, ensuring Prof. Muigua’s authoritative work remains at the forefront of mediation scholarship, responsive to emerging developments while grounded in enduring principles and Kenya’s rich traditions of community-based conflict resolution.

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

Part 1 of Settling Disputes Through Arbitration in Kenya and Beyond (comprising Chapters 1-3) establishes the foundational framework for understanding arbitration within the broader context of alternative dispute resolution. It examines the nature, attributes and constitutional basis of arbitration in Kenya, analyses the arbitration agreement as the cornerstone of the arbitral process, and explores the procedural mechanism of stay of legal proceedings that gives effect to arbitration agreements. The section argues that arbitration is not merely an “alternative” to litigation but an “appropriate” dispute resolution mechanism with distinct advantages, provided its legal and institutional frameworks are properly understood and applied.

Chapter One: Introduction to Arbitration and ADR

Arbitration is defined as a process subject to statutory controls whereby formal disputes are determined by a private tribunal of the parties’ choosing. It arises where a neutral third party is appointed by the parties or an appointing authority to determine the dispute and give a final and binding award. The Arbitration Act 1995 defines arbitration as “any arbitration whether or not administered by a permanent arbitral institution”.

Attributes of Arbitration include confidentiality, which is highly valued as it avoids washing dirty linen in public and prevents publication of proceedings without party approval; party autonomy allowing selection of arbitrators with relevant expertise and integrity; flexibility enabling expeditious disposal; cost-effectiveness (potentially less than litigation); and limited appeals, which impacts positively on expediency. Section 39 of the Arbitration Act restricts appeals to domestic arbitrations only, a position affirmed by the Supreme Court in Nyutu Agrovet Limited v Airtel Networks Kenya Limited [2019] eKLR.

Constitutional Framework: Article 159 of the Constitution of Kenya 2010 mandates courts and tribunals to promote alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms. This represents a paradigm shift from equating access to justice with litigation. In Dry Associates Limited v Capital Markets Authority [2012] eKLR, Majanja J identified components of access to justice including enshrinement of rights, awareness of law, availability of information, equal protection, easy access to justice systems, physical infrastructure, affordability, conducive environment, expeditious disposal and enforcement without delay.

Types of Arbitration include ad hoc arbitration (not administered by an institution, parties determine all aspects), institutional arbitration (administered by specialist institutions applying their procedural rules), statutory arbitration (originating from mandatory statutory provisions), look-sniff arbitration (combining arbitral process with expert opinion on quality), flip-flop or baseball arbitration (each party submits final offer, arbitrator chooses one without modification), documents-only arbitration (conducted without oral hearings), domestic arbitration (parties are Kenyan nationals or incorporated in Kenya), and international arbitration (parties have places of business in different states).

Arbitration in the Kenyan Context is recognised under the Constitution, Arbitration Act 1995, Arbitration Rules, Civil Procedure Act and Civil Procedure Rules. The Arbitration Act 1995 is modelled on the UNCITRAL Model Law and contains provisions relating to arbitral proceedings and enforcement of awards. However, arbitration in Kenya is increasingly becoming formal and cumbersome as lawyers import delay tactics and complex legal procedures.

Other Dispute Management Mechanisms surveyed include litigation (coercive, adversarial, with minimum party control), negotiation (parties meeting to identify and discuss issues without third party), mediation (continuation of negotiation with third-party facilitator), conciliation (third party restores damaged relationships), convening (identifying issues and individuals), early neutral evaluation (neutral gives opinion on likely outcome), facilitation (improving information flow), fact-finding (neutral independently determines facts), Med-Arb (mediation followed by arbitration if unsuccessful), Arb-Med (arbitration followed by mediation, award discarded if settlement reached), mini-trial (summary presentation to senior executives), ombudsman (confidentially receives and investigates complaints), peer review panels (groups conduct fact-finding), private judging (rent-a-judge approach), hybrid ADR (creative adaptations), adjudication (rapid decisions under tight time scales), and traditional justice systems (informal mechanisms utilising customary law).

Chapter Two: Arbitration Agreement

The arbitration agreement is the basis of all arbitrations—an agreement whereby parties undertake that specified matters shall be resolved by a third party acting as arbitrator and that they will honour the award. The Arbitration Act defines it as an agreement to submit to arbitration all or certain disputes which have arisen or may arise between parties in respect of a defined legal relationship, whether contractual or not.

Types of Arbitration Agreements: An arbitration clause is contained in a contract addressing disputes that may arise in future. A submission agreement arises where parties to an existing dispute submit that dispute to arbitration ad hoc, requiring accurate description of subject matters.

Contractual Requirements: Arbitration agreements must meet basic contract requirements—offer and acceptance, consideration (something bargained for and given in exchange), capacity of parties, legality of subject matter, and proper form where required.

Formal Requirements under Section 4 of the Arbitration Act: The arbitration agreement must be in writing, contained in a document signed by parties or an exchange of letters, telex, telegram, facsimile, electronic mail or other telecommunications providing a record, or an exchange of statements of claim and defence where existence of agreement is alleged by one party and not denied. The agreement need not be signed—Kenyan law follows the English approach rather than the Model Law’s signature requirement. In Feisal Shariff Ibrahim v Daniel Kamau Chege [2021] eKLR, the court confirmed that writing confirms parties’ resolve to be bound.

Mutual Consent: The intention to submit to arbitration must unequivocally arise from the agreement, containing a mandatory rather than permissive undertaking. In Mohammed Gulam Hussein Fazal Karmali v The Chief Magistrate’s Court Nairobi [2006] eKLR, the court upheld party autonomy arising from Kenya’s ratification of the UNCITRAL Model Law.

Tacit Agreement: Consent may be inferred from exchange of statements of claim and defence where existence of agreement is alleged and not denied. Section 5 provides that a party who knows of non-compliance and proceeds without objection is deemed to have waived the right to object. In Kenya National Highways Authority v Pride Enterprises Limited [2020] eKLR and Peter Ouma Onyango v Mats Karlsson [2021] eKLR, the courts affirmed that objections must be raised at earliest opportunity.

Defined Legal Relationship: The arbitration agreement must refer to a concrete and specific legal relationship between parties, whether contractual or non-contractual. In Goodoison Sixty-One School Limited v Symbion Kenya Limited [2017] eKLR, the court affirmed fundamental principles including party autonomy and limited court intervention.

Arbitrable Subject Matters: Matters are arbitrable when they refer to economic or disposable private rights. Traditionally, matters affecting public interest including criminal offences were non-arbitrable, but Republic v Mohamed Abdow Mohamed (2013) saw a murder case settled through ADR. In TSJ v SHSR [2019] eKLR, the Court of Appeal held that there is nothing in the Arbitration Act limiting disputes to commercial matters—personal law disputes including divorce and custody may be arbitrable under the current constitutional framework.

Separability of Arbitration Agreement: The arbitration clause is treated as independent of other contract terms. A decision that the contract is null and void does not invalidate the arbitration clause. In Kenya Airports Parking Services Ltd v Municipal Council of Mombasa [2009] eKLR, the court approved the separability doctrine, holding that even where one party challenges agreement validity, the arbitrator has jurisdiction to determine validity. The doctrine was affirmed in Nedermar Technology v Kenya Anti-Corruption Commission [2006] eKLR and Infocard Holdings Limited v Attorney General [2014] eKLR.

Drafting Effective Arbitration Agreements: Common mistakes include failure to specify binding or non-binding nature, failure to design clause fitting transaction circumstances, expressing agreement to arbitrate without guidance on how or where, excessively detailed clauses, unrealistic expectations, and incorporating litigation procedural rules. Finality, enforceability and functionality should be key considerations.

Chapter Three: Stay of Legal Proceedings for Arbitration

An application for stay of proceedings limits avenues for an aggrieved party who is party to an arbitration agreement—if they wish to pursue claims, they can only do so through arbitration. Courts, by staying proceedings, enforce what parties exercising freedom to contract have chosen and agreed to be bound by.

Arbitration Agreement Does Not Bind Parties to Arbitration Only: In Rawal v The Mombassa Hardware Ltd [1968] EA 398, it was held that an arbitration agreement does not limit or oust court jurisdiction until a party objects. In Peter Muema Kahoro v Benson Maina Githethuki [2006], the court held that a defendant who fails to apply under Section 6 in appropriate time and instead takes steps in proceedings waives the right to rely on the arbitration agreement.

Conditions for Grant of Stay: The applicant must satisfy the court that they were at commencement of proceedings ready and willing to do everything necessary for proper conduct of arbitration (Esmailji v Mistry Shamji Lalji & Co. [1984] KLR 150). The court must consider whether the applicant has taken any step in proceedings other than allowed steps; whether there are legal impediments on validity, operation or performance of the arbitration agreement; and whether the suit concerns a matter agreed to be referred (Niazsons (K) Ltd v China Road and Bridge Corporation (2001) eKLR).

Valid and Enforceable Arbitration Agreement: The court shall grant stay unless it finds the arbitration agreement null and void, inoperative or incapable of being performed. The doctrine of separability enables the arbitration clause to survive termination of the underlying contract.

Applicant Must be Party to Arbitration Agreement: Only a party to the arbitration agreement has the right to apply for stay. In Chevron Kenya Limited v Tamoil Kenya Limited [2007], the court refused stay where defendant was not party to the agreement. In Pamela Akora Imenje v Akora ITC International Ltd [2005], the court held that Section 6(1) is available only to defendants.

Dispute Within Scope of Arbitration Clause: The dispute must fall within the scope of the arbitration clause. The court will not stay proceedings if there is not in fact any dispute between parties with regard to matters referred to arbitration. In TM AM Construction Group (Africa) v Attorney General, the court found no evidence of dispute existed and refused stay.

No Answer to Substantive Claim: The party applying for stay must not have taken steps in proceedings to answer the substantive claim. Application must be made not later than the time of entering appearance or taking appropriate procedural step to acknowledge legal proceedings. In Lofty v Bedouin Enterprises Ltd (2005) 2 EA, the court held that even if conditions are satisfied, the court may reject application if not made at time of entering appearance. In Diocese of Marsabit Registered Trustees v Technotrade Pavilion Ltd [2014] eKLR, the court stated that the requirement is not a mere technicality but a substantial legal matter—a party who fails to adhere forfeits the right to apply.

Procedure for Application: Application under Sections 6 and 7 shall be made by summons in the suit, accompanied by supporting affidavit annexing the arbitration agreement. The Civil Procedure Rules apply where appropriate. The 2009 amendment provides that proceedings before court should not be continued after an application for stay has been made and remains undetermined.

Constitutional Justification: Article 159(2)(c) recognises use of ADR in conflict management. In Eunice Soko Mlagui v Suresh Parmar [2017] eKLR, the court reflected that Section 6 regulates and facilitates realisation of the constitutional objective of promoting ADR. The Environment and Land Court Act 2011 also provides for ADR application and empowers court to stay proceedings where ADR is condition precedent.

Conclusion

Part 1 establishes that arbitration is constitutionally recognised and statutorily regulated in Kenya, with the arbitration agreement as its foundation and stay of proceedings as the mechanism enforcing party autonomy. The chapters collectively demonstrate that arbitration’s effectiveness depends on proper drafting of arbitration agreements, timely invocation of rights, and judicial respect for party choice. While arbitration offers significant advantages over litigation, its potential can be undermined by procedural complexity, lawyer-driven delay tactics, and insufficient understanding of formal requirements. The constitutional mandate to promote ADR requires courts to give effect to arbitration agreements while maintaining the delicate balance between party autonomy and judicial supervision. Part 1 thus provides the essential groundwork for understanding arbitration’s place in Kenya’s justice system before subsequent parts examine procedural and substantive aspects in detail.

This is a review of Part 1 of Prof. Kariuki Muigua SC Book: Settling Disputes Through Arbitration in Kenya and Beyond (5th Edition), published in March 2026, available here.