KENYA Trends and Developments Contributed by: Ken Melly, Moses Kipkogei, Delbert Ochola and Kanyiri Kariuki, G&A Advocates LLP
The hearing stage Until fairly recently, arbitration in Kenya, much like litigation, was conducted primarily through in-person interactions, with hearings requiring the physical pres - ence of parties, counsel, arbitrators, witnesses and experts, often at the NCIA’s Nairobi premises or in a hired boardroom. This conventional approach neces - sitated travel, logistical planning and considerable expense, particularly for parties or witnesses based outside the capital or outside Kenya altogether. With time, however, improved internet and mobile con - nectivity naturally led to greater use of technology in dispute resolution generally, opening a discourse around online dispute resolution. The COVID-19 pan - demic accelerated this shift considerably, forcing a rapid transition to e-filing, remote hearings and, more broadly, limited in-person interaction across the Ken - yan justice sector before arbitral tribunals seated in Nairobi. Technology has made it possible to conduct virtual arbitral hearings without requiring counsel or wit - nesses to travel. The NCIA responded to this shift by adopting its own Virtual Hearing Guidelines in Sep - tember 2020, which govern the conduct of hearings held wholly or partly by video-conference, and by aligning its practice with the Africa Arbitration Acad - emy’s Protocol on Virtual Hearings in Africa. A num - ber of platforms, including Zoom, Microsoft Teams and Webex, are commonly used in aid of pre-hearing conferences and hearings in Kenyan-seated arbitra - tions. The conduct of virtual hearings has become an established practice, reflecting the broader digital transformation of dispute resolution, and has increas - ingly gained jurisprudential recognition as courts have acknowledged and upheld such processes. The integration of technology into the hearing stage has extended beyond the mere presentation of oral argument. Documentary evidence no longer needs to be physically ferried to a hearing room, as document- sharing platforms are now used to exchange bundles seamlessly, promoting efficiency, reducing costs, strengthening document security and facilitating col - laboration irrespective of where counsel or the tribunal happen to be. Virtual hearings are also increasingly recorded and transcribed using artificial intelligence- powered transcription tools, and live transcription
linked to a digital hearing bundle allows counsel to hyperlink a witness’s testimony to the exact docu - ment being referenced, with arbitrators able to search for keywords in real time, a capability that remains rare but is gradually being adopted by larger Kenyan firms and international counsel appearing before NCIA tribunals. The post - hearing stage Arbitration does not end immediately after the hear - ing; rather, the post-hearing stage encompasses the period between the close of oral submissions and the finalisation and, ultimately, the enforcement of the award. This stage is characterised by extensive review of voluminous documents and the meticulous draft - ing of awards, all of which are labour-intensive, time- consuming and demand a high degree of precision. Artificial intelligence has, therefore, over the years, been employed to aid the drafting of arbitral awards, and as technology continues to advance there is even a growing possibility of AI-assisted arbitrators, par - ticularly given that arbitral awards are increasingly available in digital form and a modest data set of a few thousand awards would be sufficient to train such systems. This has brought into sharper focus the con - troversial question of whether human arbitrators can ever be replaced by artificial intelligence at the award stage, given the binding nature of the arbitral process and the risk of excessive legal formalism. Technology is also heavily used in the drafting of post-hearing briefs, which arbitrators typically rely on in reaching their determinations. Parties tend to file voluminous briefs, with reports from major interna - tional firms suggesting arbitrators may receive several thousand pages of submissions in a single reference. This has itself necessitated the use of technology in drafting, reviewing and managing such briefs. Digital bundling platforms make it considerably easier and more accurate for arbitrators to review documen - tary evidence, saving time and reducing the labour involved in decision-making. At this stage, technology serves not merely as a tool for efficiency but as a defining feature of contempo - rary arbitral practice in Kenya. The digital transforma - tion of arbitration has facilitated the creation, execu - tion and issuance of electronic arbitration agreements
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