KENYA Trends and Developments Contributed by: Ken Melly, Moses Kipkogei, Delbert Ochola and Kanyiri Kariuki, G&A Advocates LLP
Technology as a New Frontier in International Arbitration Introduction A variety of dispute resolution mechanisms exist to settle commercial disputes, and international surveys have consistently shown that a substantial majority of corporate users prefer arbitration to cross-border litigation. Arbitration has long been promoted, includ - ing by Kenyan practitioners, as a mechanism distin - guished by its consensual, win-win nature and its abil - ity to resolve disputes more quickly and economically than proceedings before the ordinary courts. Yet the reality in Kenya, as elsewhere, is often more nuanced. Delays occasioned by court-annexed applications under the Arbitration Act, 1995 (as amended in 2009), excessive documentary burdens, and cumbersome procedural requirements continue to affect some arbitral processes, increasing cost and raising genu - ine concerns about access to justice, particularly for parties outside Nairobi. Consequently, the “gospel of efficiency” that has historically served as arbitration’s principal selling point may, in certain cases, remain more aspirational than practical. That said, technology has become increasingly cen - tral to how arbitration is conducted in Kenya, driven largely by the establishment of the NCIA in 2013 and by the judiciary’s own digitisation of court processes. This article explores the place of technology in Ken - yan arbitral practice. It first discusses technology’s role in the three key stages of arbitration, namely the pre-hearing, hearing and post-hearing stages. It then canvasses the challenges and ethical considerations technology raises, before considering the future of Kenyan arbitration in a technology-driven landscape. Technology in the key stages of arbitration in Kenya Arbitration can be divided into three key stages. The pre-hearing stage culminates in the commencement of arbitration, preliminary hearings, and the filing and management of the Statement of Claim and State - ment of Defence. The second stage, the hearing stage, entails the hearing of the case, the evaluation of evidence and the presentation of final arguments. The third stage, the post-hearing stage, includes the draft - ing and issuance of the award and any post-award proceedings, including enforcement before the High
Court. To preserve the efficiency that has endeared arbitration to Kenyan commercial parties, the use of technology and technical aids has become increas - ingly necessary throughout the arbitral process, from the NCIA’s own case administration to the practices of individual arbitrators and counsel. The pre - hearing stage The integration of technology has significantly trans - formed the pre-hearing stage of arbitration in Kenya by improving procedural efficiency, enabling seamless communication between parties, and reducing fric - tion long before the first witness is called. Traditionally, this stage required physical transportation and filing of voluminous documentary evidence, whether between advocates’ offices in Nairobi or between local and international parties. This was costly in printing, cou - rier and logistical expenses, exposed documents to loss, damage or destruction, and contributed to the registry congestion long associated with the Milimani Commercial Courts. The digitalisation of dispute resolution in Kenya has produced developments that are now cost- and time- effective, allowing for the online filing of cases and the collection of e-evidence. The judiciary’s rollout of an e-filing system, accelerated by the COVID-19 pan - demic and later expanded nationwide together with a Case Tracking System and Causelist Portal, illustrates the pace of this shift, and arbitral institutions have followed a similar trajectory. The NCIA, established under the Nairobi Centre for International Arbitration Act, 2013, has increasingly relied on electronic com - munication and case management to administer dis - putes referred to it under its 2015 Arbitration Rules, as revised in 2019, reducing the need for parties and their advocates to travel to the Centre’s Nairobi offices for routine filings. Cloud-based case management of this kind has enhanced instant access, facilitated collabo - ration between counsel based in different counties or countries, and significantly reduced transportation and courier costs. Artificial intelligence is increas - ingly credited with the capacity to analyse bulky pre- hearing data and assist in arriving at more rational determinations, free from cognitive bias, a develop - ment that Kenyan arbitral institutions and law firms are only beginning to explore.
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