KENYA Trends and Developments Contributed by: Ahmednasir Abdullahi, Asli Osman, Peter Muchoki and Elizabeth Wangui Mungai, Ahmednasir Abdullahi Advocates LLP
parties vulnerable to unpredictable, sometimes exor- bitant charges. For small and medium enterprises, the costs make arbitration practically inaccessible. Empirical evidence shows many parties regret including arbitration claus- es once they encounter the financial burden. Unlike court fees, which are standardised and capped under the Judiciary’s Court Fees Assessment Schedule and Advocates Remuneration Order, arbitration remains largely unregulated in its financial demands. Enforcement difficulties Sections 36 and 37 provide for recognition and enforcement of awards. In theory, this is straight- forward. In practice, however, award creditors often endure protracted applications, asset-tracing hurdles and resistance from award debtors. Courts have interpreted public policy broadly under Section 37, allowing them to refuse enforcement in a wide array of circumstances. Even when awards are formally recognised, execution, especially against public sector or well-connected entities, remains fraught with delay. Such unpredictability discourages foreign investors and diminishes confidence in arbitra- tion as a reliable dispute resolution mechanism. Arbitrator capacity and integrity concerns While Kenya has a growing pool of arbitrators, ques- tions linger about depth of expertise, consistency of quality, and sometimes integrity. Concerns over undisclosed conflicts of interest, opaque appoint- ment processes, and inconsistent awards erode user confidence. Without robust institutional oversight such as for- mal accreditation, ethical standards and transparent selection protocols, arbitration risks being seen as a forum susceptible to patronage. Sections 12 and 13 of the Act allow parties to challenge arbitrators, but in practice this requires recourse to the courts, adding further costs and delay. Procedural inefficiencies and evidence issues Arbitral tribunals enjoy significant procedural flexibil- ity under Section 20 of the Act, yet in practice they often replicate the courts’ rigidity: lengthy pleadings,
repeated adjournments and time-consuming witness examinations. Section 28 allows tribunals to seek court assistance in taking evidence, but this effectively re-imports court timelines into arbitration, eroding the speed advantage. Moreover, complex disputes involving electronic records or multi-jurisdictional data pose challenges that tribunals are ill-equipped to handle efficiently. The result is that arbitration can, in many cases, mirror the delays, costs, and procedural burdens of traditional litigation. Accessibility and regional disparities Arbitration remains highly Nairobi-centric. Parties outside major urban centres face logistical barriers in securing arbitrators and facilities. Language also poses a barrier: proceedings are conducted in Eng- lish, marginalising smaller businesses that operate primarily in Kiswahili or local languages. Combined with low awareness among SMEs about arbitration’s processes and benefits, this limits Kenya’s ability to promote arbitration as a truly inclusive dispute resolu- tion mechanism. Way forward: proposals for reform Kenya’s arbitration framework has matured over the past three decades, yet practical and structural chal- lenges continue to limit its effectiveness. Addressing these challenges requires a combination of legisla- tive refinement, institutional strengthening, capacity building, and procedural innovation. The Arbitration (Amendment) Bill 2025, currently before parliament, provides an opportunity to operationalise several of these reforms while highlighting areas that still require attention. Legislative refinements Excessive judicial intervention has long undermined arbitration’s finality. Sections 35 and 39 of the Arbi- tration Act allow courts to set aside awards and hear appeals, but these provisions are frequently exploited for tactical delay. The Amendment Bill introduces the Arbitral Court, which will replace the High Court in most arbitration matters, and limits appeals to the Court of Appeal. This strengthens finality and operationalises previous recommendations for judicial restraint. How- ever, the Bill bars further appeal to the Supreme Court,
582 CHAMBERS.COM
Powered by FlippingBook