KENYA Law and Practice Contributed by: Ahmednasir Abdullahi, Asli Osman, Peter Muchoki and Elizabeth Wangui Mungai, Ahmednasir Abdullahi Advocates LLP
13. Arbitration 13.1 Laws Regarding the Conduct of Arbitration
Order 11, Rule 3 of the Civil Procedure Rules, courts screen cases during pre-trial conferences (within 30–90 days of pleadings) for mediation referral. This is strongly embedded in case management through pre-trial screening where judges assess suita- bility and issuing directions for mediation. Outside the Court Annexed Mediation, parties can pursue private mediation, arbitration, or negotiation, with agreements registrable as court orders for enforcement. A party cannot be compelled to participate in media- tion and there is no sanction against them for failing to participate. 12.3 ADR Institutions Institutions promoting ADR in Kenya are fairly well organised, with strong support from the Constitution (Article 159), the judiciary, and specialised bodies. • Court-Annexed Mediation (CAM) – available in all High Court stations, run by Mediation Registrars with panels of accredited mediators. It has reduced case backlogs in family, land, and commercial disputes. • Arbitration bodies – the Nairobi Centre for Interna- tional Arbitration (NCIA) and the Chartered Institute of Arbitrators (CIArb – Kenya Branch) provide train- ing, facilities, and professional standards for both local and international arbitration. • Sector-specific ADR – Kenya Revenue Author- ity’s (KRA’s) Tax ADR, labour conciliation, and land dispute mediation by the NLC (National Land Com- mission) are key examples. • Traditional ADR – community-based mechanisms are constitutionally recognised if consistent with human rights. Together, these reforms are designed to build trust, professionalism, and accessibility in Kenya’s ADR system.
Arbitration in Kenya is principally governed by the Arbitration Act, No 4 of 1995 which is largely mod- elled on the UNCITRAL Model Law on International Commercial Arbitration. Under the Act, parties have autonomy to determine the procedure of arbitration, including the number and qualifications of arbitrators, the applicable law, and the seat of arbitration. Where parties fail to agree, the Chartered Institute of Arbitrators (Kenya Branch) or the High Court may intervene in appointing arbitrators or resolving procedural impasses. 13.2 Subject Matters Not Referred to Arbitration The Arbitration Act, 1995 does not expressly list non- arbitrable matters, but Kenyan case law and constitu- tional principles have clarified the scope. The follow- ing categories of disputes generally cannot be referred to arbitration. • Criminal matters or offences against the state cannot be resolved through arbitration, as these are governed by public law and prosecuted by the state. • Matters such as divorce, custody, and mainte- nance are governed by statute and public policy and are reserved for family courts. • Constitutional questions and enforcement of rights under the Constitution of Kenya, 2010 fall within the jurisdiction of the High Court and cannot be privately determined. • Insolvency, bankruptcy, and winding-up proceed- ings affect third-party rights and public interests, and are governed under the Insolvency Act, 2015, thus are not subject to arbitration. • Employment and labour disputes are statutorily reserved for the Employment and Labour Relations Court (ELRC).
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