KENYA Trends and Developments Contributed by: Ahmednasir Abdullahi, Asli Osman, Peter Muchoki and Elizabeth Wangui Mungai, Ahmednasir Abdullahi Advocates LLP
potentially conflicting with constitutional review rights recognised in the Nyutu and Synergy cases. Careful monitoring and potential refinement may be required to balance finality with constitutional safeguards. Arbitrator fees in Kenya remain largely unregulated, creating unpredictability and high costs. Establish- ing a statutory fee schedule or guidelines, similar to court fees and the Advocates Remuneration Order, would enhance transparency, reduce financial barri- ers for SMEs, and promote access to justice. While the Amendment Bill does not impose statutory fees, it introduces a fast-track procedure with a 5% monthly fee reduction for arbitrators who fail to deliver awards within the stipulated timeline. This incentivises timely award issuance and addresses concerns about cost escalation due to protracted proceedings. Comple- menting this with a formal fee tariff for arbitrators, as previously recommended, would further enhance predictability and cost efficiency, especially for SMEs. Sections 36 and 37 of the Arbitration Act provide for award recognition and enforcement, but discretionary public policy objections often delay execution. The Amendment Bill’s provisions clarifying when an award is deemed delivered in Sections 32 (4A) and (5A) and introducing timelines for interim measures under Sec- tion 7 enhance enforceability by reducing procedural ambiguity. Legislative or institutional mechanisms to enforce these timelines will further improve execution reliability. Institutional strengthening The Amendment Bill establishes a Registrar of the Arbitral Court with authority to determine arbitrator appointment challenges. This institutionalises over- sight and aligns with prior recommendations for trans- parent and accountable arbitral governance. While the Registrar’s role can expedite resolution of challenges, careful checks are needed to mitigate risks of per- ceived bias or procedural unfairness. Expanding arbitration facilities to regional hubs (Mombasa, Kisumu, and Eldoret) remains relevant. The operationalisation of the Arbitral Court under the Bill can be leveraged to decentralise hearings and improve access for parties outside Nairobi.
Capacity building and awareness The Amendment Bill allows third-party funding in international arbitrations, addressing financial barriers for resource-constrained parties. Although domestic arbitrations remain excluded, this measure represents a step towards broader accessibility. Advocacy to extend third-party funding to domestic disputes would further democratise arbitration and support SME par- ticipation. Continuous professional development for arbitrators, legal practitioners, and parties on fast-track pro- cedures, e-discovery, and tribunal governance will enhance quality and consistency. Nationwide aware- ness campaigns targeting SMEs can demystify arbi- tration processes, costs, and enforceability mecha- nisms. Procedural innovations Part IV of the Amendment Bill introduces fast-track arbitration, limiting proceedings to written submis- sions with optional oral hearings and six-month award deadlines (extendable by six months). Coupled with fee reduction incentives, these provisions directly address prior concerns regarding procedural inef- ficiencies and protracted timelines, operationalising recommendations for stricter case management and enforceable schedules. The Bill also caps interim relief under Section 7 at 60 days (extendable by the High Court) and clarifies when awards are deemed delivered. This reduces the risk of indefinite interim measures and provides a clear procedural framework for enforcement. Conclusion Arbitration in Kenya remains a promise partially ful- filled. The statutory framework is sound, but its opera- tion has been undermined by judicial ambivalence, cost inflation, enforcement difficulties, and institu- tional weaknesses. Far from being the silver bullet to litigation’s delays, arbitration has, in some cases, reproduced the very inefficiencies it sought to cure. The way forward requires honest acknowledgment of these shortcomings. Only then can arbitration evolve from an aspirational policy tool into a truly feasible mechanism for dispute resolution in Kenya.
583 CHAMBERS.COM
Powered by FlippingBook