KENYA Trends and Developments Contributed by: Ken Melly, Moses Kipkogei, Delbert Ochola and Kanyiri Kariuki, G&A Advocates LLP
and electronic arbitral awards, both of which enjoy the same legal validity and enforceability as their tradi - tional counterparts under Kenyan law, subject to com - pliance with the Arbitration Act, the Kenya Information and Communications Act and related electronic trans - actions provisions, as well as, where applicable, the New York Convention on the recognition and enforce - ment of foreign arbitral awards. The recognition of these digital instruments demon - strates arbitration’s adaptability to technological inno - vation and reinforces its continued relevance to an increasingly digital Kenyan commercial environment. It remains vital, however, that the integration of tech - nology throughout the arbitral process be guided by responsible innovation and the maintenance of mean - ingful human oversight. This is further guided by the principle of party autonomy, which affirms that parties remain free to decide whether and how AI tools should be used in their proceedings, with arbitrators expect - ed to respect and uphold such choices, ensuring that any use of AI aligns with the parties’ agreement and complies with applicable Kenyan law, regulation and institutional rules. Challenges and ethical considerations of technology in Kenyan arbitration While technology has significantly transformed arbi - tration in Kenya by enhancing efficiency, accessibility and procedural flexibility, its integration is not with - out difficulty. Like any technological innovation, the adoption of digital tools presents legal, technical and ethical concerns, some of which, if left inadequately addressed, risk undermining the very principles that make arbitration an attractive dispute resolution mechanism in the first place. The first and perhaps most pressing challenge concerns the fairness of proceedings conducted with heavy reliance on tech - nology. Fairness requires that both parties be given a genuine opportunity to present their evidence, and that the arbitrator remain impartial and independent throughout. The software typically employed in mod - ern arbitration is often complex and demands reason - ably high-speed internet access to operate efficiently. Unfortunately, internet connectivity in Kenya remains unevenly distributed; while Nairobi and other major towns enjoy relatively reliable broadband and mobile data, litigants, witnesses and even some local counsel
outside these urban centres continue to face patchy connectivity. This directly affects their right to a fair hearing, since a system that assumes uniform access does not, in practice, treat all parties as equals. Virtual hearings may also inadvertently compromise the quality of proceedings by affecting the degree of attention accorded to each party. Where an arbitra - tor’s attention is diverted while a party is presenting its case, the evidence and submissions advanced by that party risk inadequate consideration. Secondly, the use of technology in arbitration raises questions about the binding nature and enforceabil - ity of technology-assisted arbitral decisions. Whether machines should ever be eligible to serve as arbitra - tors and render binding decisions remains unresolved, largely because society has yet to trust the compe - tence and credibility of automated systems relative to human decision-makers. In LaPaglia v Vavle (2025) which is a United States case, a party sought to vacate an arbitral award on the ground that the arbitrator had effectively “outsourced” the adjudicative function to an artificial intelligence tool, allegedly using a genera - tive AI system to draft parts of the award, arguing that this undisclosed reliance breached the party’s right to a human-rendered decision. Although the claim - ant did not succeed, since the court found it lacked jurisdiction, the filing itself illustrates a broader unease about treating AI-rendered decisions as fully binding, an unease Kenyan practitioners and the NCIA would do well to note as they consider how far to extend AI’s role locally. A further significant challenge is heightened exposure to cybersecurity risk, including hacking and other forms of unauthorised access to sensitive information. Systems used for the storage and analysis of docu - mentary evidence, whether maintained by an institu - tion such as the NCIA, the Judiciary’s own e-filing platform, or third-party case management providers, could in principle be tampered with by unauthorised actors, resulting in the loss, destruction or alteration of evidence. Such incidents have been witnessed elsewhere and remain a live concern. In July 2015, state-sponsored actors compromised the digital infra - structure of the Permanent Court of Arbitration in the Hague during the South China Sea arbitration, one of
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