KENYA Trends and Developments Contributed by: Ken Melly, Moses Kipkogei, Delbert Ochola and Kanyiri Kariuki, G&A Advocates LLP
the most politically sensitive investment disputes of the century. Not long thereafter, in a separate ICSID arbitration against the Republic of Kazakhstan ( Cara- tube International Oil Company LLP and Devincci Salah Hourani v Republic of Kazakhstan (ISCID Case No Arb/13/13)), that government’s computer network was hacked, and roughly sixty thousand documents were published on a publicly accessible website. Given Kenya’s own Computer Misuse and Cyber - crimes Act, 2018, and Data Protection Act, 2019, institutions administering arbitration locally, and the advocates who practise before them, bear a corre - sponding duty to secure client and case data against comparable intrusions, particularly as Kenya posi - tions itself as a regional arbitration hub. Additionally, full reliance on “machine arbitrators” risks reviving a rigid legal formalism, discounting the behavioural and extra-legal factors a human arbitrator would ordinarily weigh in applying the law to the facts. While such an approach may promote predictability and legal cer - tainty, arbitral practice must remain responsive to the realities of each dispute, as excessive formalism may impede substantive justice. Future of arbitration with technology in Kenya With the rapid evolution of technology in arbitration, the future of the practice in Kenya looks brighter, more efficient and considerably faster. It is a future in which timely delivery of justice becomes the norm, so that justice is not denied through unnecessary delay. It is also a future closer to the ideal that Lord Hewart artic - ulated nearly a century ago in Rex v Sussex Justices ex parte MacCarthy (1924), that justice should not only be done, but should manifestly and undoubtedly be seen to be done. In the foreseeable future, the NCIA, the Chartered Institute of Arbitrators’ Kenya Branch, and individual arbitrators are likely to draw increas - ing support from rule-based systems and machine learning tools, facilitating more expedited and cost- effective conduct of arbitrations and examination of data. Continued investment in Kenya’s broader digi - tal infrastructure, including efforts to extend reliable connectivity beyond Nairobi, will be essential if these
gains are to be shared equitably across the country rather than concentrated among parties and counsel already based in the capital. The increasing integration of technology across all stages of arbitration, from the pre-hearing and hearing phases through to the post- hearing stage, is reshaping the practice of arbitration in Kenya, with ongoing developments paving the way for a more efficient, accessible and innovative future for the country’s dispute resolution landscape. Conclusion Arbitration has long been recognised in Kenya as a preferred mechanism for resolving commercial dis - putes, owing to its consensual, win-win nature and its ability to resolve disputes more expeditiously and cost-effectively than litigation before an often congest - ed court system. However, the increasing complexity of cross-border disputes and the demand for greater procedural efficiency have driven the integration of technology into the arbitral process, transforming how arbitration is conducted in Nairobi and beyond. Innovation-driven technologies continue to have a sig - nificant impact on Kenya’s dispute resolution land - scape, which has proven particularly agile in adapting to changing norms, from the NCIA’s Virtual Hearing Guidelines to the judiciary’s nationwide e-filing roll - out. While the integration of technology into arbitration has contributed to its growth and rising international profile as a seat, it has also faced genuine challeng - es, some serious enough to limit that growth if left unaddressed, particularly unequal internet access and exposure to cybersecurity threats. Notwithstanding these challenges, the evidence sug - gests that, if technology is effectively harnessed, the future of arbitration in Kenya is likely to be more efficient and more accessible than ever before. It is also conceivable that, in time, advances in artificial intelligence and predictive technologies will become sufficiently accurate and reliable to make a meaning - ful contribution to the decision-making processes of Kenyan arbitral institutions and law firms alike.
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