Proposed Amendments to Introduce ADR and Case Management in Kenya

By Paul Musyimi

 

 The Rules Committee has made drastic proposals for constitutional and statutory amendments aimed at introducing case management and alternative dispute resolution in Kenya. The proposals for amendments, which affect section 77 of the Constitution, Civil Procedure Act, civil procedure rules and court of appeal rules, have now been compiled pending discussion by stakeholders.

 

 The amendments aspire to facilitate 'just, expeditious and proportionate resolution of civil disputes'. This is proposed to be achieved by placing a constitutional duty on the courts and other adjudicating authorities to give cases fair hearing within reasonable time and to ensure that substantive justice always prevail over procedural justice.

 

 In this article, I will focus on the portions of the amendments that cater for case management and court-annexed ADR with emphasis on mediation.  

 

 The proposed amendments to the constitution

 The current section 77 (9) of the Constitution is proposed to be renamed as 77(9) (a) and 77(9)(b) and reworded so that 77(9)(a) incorporates the objective of  civil procedure in Kenya as to facilitate fair hearing and give due regard to substantive justice as opposed to procedural technicalities.

 

 The proposed section 77 (9) (b) of the Constitution enjoins courts and other adjudicating authorities to promote and encourage reconciliation, mediation, arbitration and other alternative dispute resolution methods in settlement of disputes.

 

 An additional section 77(16) is proposed to provide constitutional basis for case management in civil and criminal matters. If passed into law, this subsection will compel courts and other adjudicating authorities to establish, implement and enforce a case management system both in criminal and civil case. This will help reduce unnecessary costs and delay and facilitate early and fair settlement. The overall aim is bring all court proceedings in Kenya to an expeditious and just determination.

 

 

 Proposed Amendments to the Civil Procedure Act

 The Civil Procedure Act is proposed to be amended by introducing section 1A to provide facilitation of just, expeditious and proportionate resolution of civil disputes in Kenya as the overriding objective of the Act. In effect, the court, the parties and their legal representatives are obliged to give effect to this object. Advocates and their clients are to aid in achieving this objective at pain of costs for non-compliance.

 

 In furthering the overriding objective, a new section 1B of the Civil Procedure Code is proposed to incorporate case management. The aim is to, inter alia, achieve just determination of court proceedings, efficient disposal of cases, efficient use of judicial and administrative resources, reduction of costs of litigation and use of technology.

 

 In order to introduce ADR, amendments have been proposed to the definition section and section 59 of the Civil Procedure Act. To be specific, amendments have been proposed on section 59 of the Civil Procedure Act by introducing four new sections that cater for reference to mediation, other dispute resolution methods.

 

 The proposed section 59A requires reference of all suitable suits to mediation to be conducted in accordance with the proposed mediation rules annexed to the amendments. Section 59D gives the courts power to enforce private mediation agreements as long as they are in writing and facilitated by qualified mediators upon registration in the court registry.

 

 An accreditation committee for approving mediators to be listed with the Mediation Registrar for undertaking mediation under the Act is to be established under the proposed section 59B. Such accreditation committee is to have the responsibility of supervising the regulation, training, certification, accreditation and disciplining of mediators listed with mediation registrar.

 

 In addition, courts are given powers under section 59C, subject to agreement by parties, to refer suits before it to any other method of dispute resolution. Such referral and the method thereof is proposed to be governed by the procedure agreed to by the parties and/or as ordered by the court. In essence, this provision gives courts and parties the discretion to utilize ADR methods in expediting dispute resolution.

 

Case Management under the Proposed Amendments

 The proposed Order 3 under the amendments proposes to introduce case tracking system by requiring Plaintiff, while instituting the suit, to indicate the choice track for the case. The amendments establish the following three track systems, namely "small claims", "fast track" or "multi-track".

 

 Small claims are defined under the proposed amendments to refer to simple claims, involving not more than two parties and whose monetary value does not exceed Kshs. 50,000/-. The Fast Track denotes cases with straight forward facts and legal issues, relatively few parties and those which would likely be concluded within 180 days.  The Multi-Tract is used to refer to cases with complex facts and legal issues or several parties and which would likely be concluded within 240 days.

 

 In choosing the ideal track, the plaintiff is to have due regard to such considerations as, inter alia, complexity of the issues involved, the financial value of the claim, the likely expense to the parties and the importance of the issues of law and fact to the public. In addition, the plaintiff needs to consider the nature of remedy sought, number of parties and/or prospective parties involved in the suit and the time required for preparation for trial and hearing.

 

 Where the plaintiff classes the suit under fast track and multi-track suits s/he is enjoined to file, in addition to the plaint, a verifying affidavit, a list of witnesses to be called at the trial, written statement on oath of the witnesses and copies of documents to be relied on at the trial including a demand letter.

 

 Similarly, the defendant is also required ensure a defense to such suit is accompanied by a verifying affidavit, a list of witnesses, written statements on oath of witnesses and copies of documents to be relied on at the trial. These accompanying documents are to be used in case management. The time for filling reply to defense is proposed to be extended from the current 7 days to 14 days as proposed by stakeholders.

 

 Elaborate Pre-Trial Procedures

 The proposed amendments also make provisions for pre-trial procedures. Thus, 10 days after the close of pleadings, parties are required to complete, file and serve the pre-trial questionnaire which is provided in an Appendix to the amendments.  Further, within 30 days of close of proceedings, the court is to convene case conference to, inter alia, identify contested and uncontested issues, explore methods of resolving the contested issues, secure parties' agreement on schedule of events of proceedings, create a timetable for the proceedings as well as narrow or resolve outstanding issues. On conclusion of the Case Conference, the court is required to issue a case conference order.

 

 In order to create opportunity for settlement, the proposed amendments provide that courts, within 60 in case of fast tract case and 90 days in case of multi-track case, convene a Settlement Conference. The purpose of the settlement conference is to consider the settlement of the case and/or issues in the case and provide the parties an opportunity to settle and/or narrow down the issues in the case. In that connection, the parties are required to prepare and exchange a settlement conference brief outlining, in summary form, the facts of the case, summary of issues and law relied upon by each party, final list of witnesses and summary of their witness statements and expert reports and relevant excerpts of documents relied upon. 

 

 If parties fail to reach a settlement, a trial conference is convened within at least 30 days of the hearing date. The parties are also required, at least 10 days to the day scheduled for the trial conference to complete, file and exchange trial conference questionnaire.

 

 The purpose of the trial conference is to plan the trial, explore expeditious ways of introducing evidence and defining issues and to consider the necessity of amending pleadings. Trial conference also offers an opportunity to court to make orders relating to expert evidence, receiving evidence by exhibit, making referral orders for ADR and ordering examination of witnesses by issue of commission outside court and/or allowing use of affidavit evidence. At the conclusion of trial conference, the parties and their advocates are to sign a memorandum setting out the results of the conference.

 

The proposed Amendments on Court-Annexed Mediation

The procedural aspects of the proposed court-annexed mediation are outlined in the proposed new order 45A whose aim is to incorporate mediation in the Civil Procedure in Kenya. The new order provides for the Mediation rules according to which any reference by the court to mediation is to be conducted.

 

Order 45 anticipates court-mandated mediation only after the filling of the suit and close of pleadings. The court is to hold a scheduling conference within 21 days of close of pleadings to give parties directions on referral to mediation. In such conference, the court has discretion to order that that it will conduct the mediation itself or refer the suit to the Meditation Registrar for allocation of a mediator.

 

 The office of mediation Registrar has been created under the rules. S/he is supposed hold a scheduling conference within 30 days of reference for purpose of referring the case to mediation. At the conference, the parties are to appoint their mediator from the list of qualified mediators kept by the Registrar either by agreement of the parties failing which the registrar shall assign them one.

 

 Upon appointment, the mediator is obligated to convene the first session within 14 days of the referral order. The mediation must take place within three (3) months after referral order subject to extension by the court. Whether or not an extension is granted depends on the complexity of the matter, number of the parties involved. A consent of the parties to the extension must first be filed in court.

 

 In interest of time, the mediator is obliged to fix a mediation hearing as soon as possible  and serve every party with a notice indicating the venue, time and date of the mediation session. The notice, which is also to be filed with the court, must indicate that attendance of the parties to the first mediation session is mandatory. Subsequent to such notice, the parties are to provide the mediator, within at least seven days of the hearing, with a copy of statement identifying the factual and legal issues in dispute and their position and interests and attach statement of documents in support of the case.

 

Before commencement of the mediation, the mediator is to explain to the parties his/her role. After conclusion of the mediation, and within ten days thereof, the mediator should publish a report of the mediation stating whether or not the parties reached or failed to reach a settlement.  Where the parties reach a settlement, it must be filed within ten days of conclusion of the mediation. If the agreement settles the suit, the mediator is obliged to file a notice to the effect. Subsequently, the court shall enter judgment in terms of the judgment.

 

Appeal against judgment pursuant to mediated agreements is forbidden under the amendments.  Where no agreement is reached, the suit is to be set down for hearing. However, the court may order further mediation, with directions where necessary if parties consent to a further reference.

 

The amendments propose that communications and records in mediation be confidential and without prejudice. Further, it is proposed that matters discussed at mediation hearing be absolutely privileged to rule out its adduction in any legal proceeding as admissible evidence. In addition, the mediator and participants in the mediation may not be summoned, compelled or required to testify or produce records or notes relating to the mediation before any court of law.

 

Applications to enforce mediation agreements are required to be filed and served to the opposite party within seven days thereof. If no opposition is lodged within seven days of service, the agreement is to proceed to be registered as judgment of the court. If the application is opposed, the hearing thereof is to be concluded within a maximum of three weeks.

 

Conclusion

There is no doubt that if ever these amendments find their way into statutes books, civil litigation and disputes resolution in Kenya shall never be the same again. In any case, case management and court-annexed ADR has already been successfully adopted in other jurisdictions including England, Australia and Uganda.

 

It is for this reason that the proposed amendments are lauded as timely and deserving of support by all stakeholders in administration of justice in Kenya including lawyers. That is not, at all, to say that amendments are perfect and should be adopted wholesale. Rather, it is urged that stakeholder consultation geared at their fine-tuning be undertaken in order to ensure that they achieve the desired effect upon enactment. Most importantly, we need to lobby our legislators to give the amendments a chance.

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Paul Musyimi is a freelance Legal Research Consultant in Kenya. He may be contacted via email at pmusyimi@gmail.com and/or on his cellphone +254-724-634198.

Proposed Amendments to introduce mediation in Kenya

The proposed amendments affect the Civil Procedure Act, introduce a new Order XLV B and create new forms. The amendments were presented to the Rules Committee for consideration. 

The rules are a blend of the Ontario Rules spiced with the Zambian Rules. These were considered to be the most apt for our jurisdiction.    The final draft was then presented to the Rules Committee on 30^th November 2004.

AMENDMENTS TO THE CIVIL PROCEDURE ACT

Mediation" means an informal and non-adversarial process whereby a neutral third person called a mediator acts to encourage and facilitate the resolution of a dispute between two or more parties with the aim of helping the disputing parties reach a mutually acceptable and voluntary agreement.

 

"Mediator" means an impartial person whose role in mediation is to assist an encourage parties to a dispute:

·        To communicate and negotiate in good faith with each other;

·        To identify and convey their interests to one another;

·        To assess risks;

·        To consider possible settlement options;

·        To resolve voluntarily their dispute.

 

"Impartial" means being and being seen as unbiased towards to a dispute, toward their interests and toward the options they present for settlement.

 

"Mediation Coordinator" is a person to be designated by the Chief Justice to be responsible for the administration of mediation under this Act.

 

Part IV – Special Proceedings

 

Mediation

 

S. 59 A (1)      Every suit may be referred to mediation unless otherwise excepted by statute, rule or court order or the suit involves constitutional issues, matters of public policy or has pending applications that seek to dispose the suit in a summary manner or where the trial court considers the case to be unsuitable for referral to mediation.

 

            (2)        A court ordered mediation shall be conducted according to the Rules.

 

 PROPOSED AMENDMENTS TO THE CIVIL PROCEDURE RULES

 

ORDER XLV B

 

MEDIATION UNDER ORDER OF A COURT

 

Referral to mediation

1.   (1) In every suit instituted in court, a first scheduling and settlement conference shall within thirty days after close of pleadings for the purpose of referring the case to mediation be held and presided over by the mediation coordinator.

 

(2) A mediation under sub rule (1) shall be conducted by a person:

(a)   Chosen by the agreement of the parties from the list of approved mediators.

(b)   Assigned by the Mediation Coordinator from the list of mediators.

(c) Who is not named on the list if the parties consent.

 

List of mediators

2.   The court shall maintain a panel of approved mediators that meet specific qualifications and who adhere to court approved mediator ethics. The mediator shall be of not less than seven years in their respective fields.

 

 Mediators Fees

3.      (1) The mediators fees for the mandatory mediation session shall not exceed the amount shown in the following Table:

 

TABLE

 

Number of Parties	Maximum Fees (excluding taxes and expenses).
2	Kshs. 15,000.00
3	Kshs. 20,000.00
4	Kshs. 25,000.00
5 or more	Kshs. 30,000.00

 

(2) Each party is required to pay an equal share of the mediator's fees for the mandatory session at least seven days before the first mediation session.

(3) The mediator's fees for the mandatory mediation session cover up to three hours of actual mediation.

 

(4) After the first three hours of actual mediation, the mediation may be continued if the parties and the mediator agree to do so and agree on the mediator's fees or hourly rate for the additional time.

 

(5) If the mediator cancels a session under Rule 6 (2) of this Order because a party fails to comply with Rule 6 (1) that party shall pay any cancellation fees.

 

(6) If the mediator cancels a session under Rule 7 (2) of this Order because a party fails to attend within the first thirty minutes of the session, the party who fails to attend shall pay any cancellation fees.

 

(7) Two or more parties who fail to comply or attend, as the case may be shall pay the cancellation fees in equal shares.

 

(8). A party's failure to pay a share referred to in Rule 3 (2) or 3 (7) does not increase the share or shares of the other party or parties.

 

(9) A party who has instituted a suit in forma pauperis with respect to the proceeding is not required to pay fees under this Order.

 

Time limit

4.      A mediation settlement shall take place within three (3) months after being referred to mediation provided that time may be extended for a further sixty days by the mediation coordinator having regard to the number of parties or complexity of issues or with the consent of the parties which consent shall be duly filed in court.

 

Mediation hearing

5.      (1) The assigned mediator shall immediately fix a date for the mediation settlement and shall at least twenty days before that date, serve on every party a notice stating the place, time and date of the mediation of the settlement conference and advising parties that the settlement conference is mandatory.

 

(2) The assigned mediator shall file a copy of the notice in court.

 

Procedure before mediation

6.      (1) Every party shall at least seven days before the settlement conference comply with the following conditions:

(a). Prepare a statement in the prescribed form and provide a copy to every other party and to the mediator.

(b). The statement shall identify the factual and legal issues in dispute and briefly set out the position and interests of the party making the statement.

(c) The party making the statement shall attach to it documents that the party considers of central importance to the action.

 

(2) If it is not practical to conduct a mediation session because a party fails to comply with sub-rule one, the mediator shall cancel the session and immediately file with the mediation coordinator a certificate of non-compliance.

 

Attendance at Mediation Session

7.      (1) The parties, and their lawyers if the parties are represented, are required to attend the mediation session unless the court orders otherwise. If the party is a corporation, partnership, government agency or entity other than an individual, an officer or director of sufficient rank to settle the matter shall attend.

(2). If it is not practical to conduct a scheduled mediation session because a party fails to attend within the first thirty minutes of the time appointed for commencement of the session, the mediator shall cancel the session and immediately file with the mediation coordinator a certificate of non-compliance.

 

Statement of Understanding on Role of Mediator

8.      At the commencement of the mediation, the mediator shall read and explain to the parties the statement of understanding on the role of the mediator in the prescribed form and shall require the parties to the sign the form.

 
 

Non-compliance

9.      (1) When a certificate of non-compliance is filed, the mediator shall refer the matter to the court.

(2) The court may make any of the following orders;

(a)   an order that further mediation shall occur on any terms that the court considers appropriate.

(b)   an order that the pleadings of the non-complying party be struck out, unless the party satisfies the court that there was reasonable excuse for the non-attendance and that striking out the party's pleadings will be inequitable.

(c)    an order that the defaulting party pays costs.

 

 

Confidentiality

10.  All communication at a settlement conference and the mediator's notes and records shall be deemed to be without prejudice settlement discussions.

 

Mediator's Report

11.  Within ten days after the mediation is concluded, the mediator shall give the mediation coordinator and the parties a report on the mediation in the prescribed form.

 

Agreement 

   

12.  (1) If there is an agreement resolving some or all of the issues in dispute, it shall be signed by the parties and filed in court within ten days after the mediation is concluded.

(2) If the agreement settles the action, the mediator shall file in court a notice to that effect and the court shall enter judgment.

(3) If no agreement is reached the parties shall set the suit down for hearing.

 

Consent Order for Additional Mediation

13.  At any stage in the proceedings, the mediation coordinator may with the consent of the parties make an order requiring the parties to participate in an additional settlement conference for purposes of dealing with all matters required to be dealt with in any case at such a settlement conference.

 

No appeals against settlement

 

14.  No appeal shall lie against a registered mediated settlement.

 

Inadmissibility in Other Court Proceedings

 

15  (1) Anything said at a mediation session shall be inadmissible in any proceedings before any court of law.

      (2) Neither the mediator nor any person present at the mediation session may be summoned, compelled or otherwise required to testify or to produce records or notes relating to the mediation in any proceedings before any court of law.

      (3) A mediation session shall not be taped nor any transcript of it kept.

      (4) Any record of what took place at a mediation session shall not be admissible before any court of law, unless the parties agree in writing.

      (5) The provisions of this rule do not:

(a)   apply to a mediated agreement, or;

(b)   prevent the admission of factual evidence relating to the cause of action that would be admissible apart from sub rule (1) and/or (2) above.

 

 Immunity

 

16. A mediator shall have the protection and immunity in the same manner and to the same extent as granted judicial officers and judges under Section 6 of the Judicature Act (Chapter 8 of the Laws of Kenya).

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These are the proposed court-mandated mediation rules. But the amendments seems to have stalled mid-way. What is your take on them?

This extract was an annex to a paper by Allan Gachuhi: Court Mandated Mediation- the Final Solution to Expeditious Disposal of Cases (2006)

Arbitration as an alternative to litigation in Kenya

Arbitration is a private process of dispute resolution. Arbitration is often times with the sanctioned by statute and involves determination of disputes by a tribunal, whether made of a single individual or several persons, chosen by parties or through a process agreed to by the parties.

Definition of arbitration

The following definition of arbitration by Lord Justice Raymond 250 years ago is still valid:

"An arbitrator is a private extraordinary judge between party and party, chosen by their mutual consent to determine controversies between them, and arbitrators are so called because they have arbitrary power; for if they observe the submission and keep within their due bonds their sentences are definite from which there lies no appeal". (Quoted in Totterdil B (2003) An introduction to construction adjudication: Comparison of Dispute Resolution Techniques.)

The International Law Commission has defined arbitration in respect of sovereign states as follows:

"A procedure for the settlement of disputes between states by a binding award on the basis of law and as a result of an undertaking voluntarily accepted."

Key features of arbitration

The following features of arbitration are discernible. One, the procedure of settlement is as agreed by parties either point by point or by adopting a pre-existing procedure made by an institution. Arbitration awards are on basis of the law just like judgements in litigation. This may be contrasted to decisions in other mechanisms e.g. negation which may not necessarily be on merits of the law. Thirdly, an arbitrator is a private judge chosen by parties or through a process agreed upon by the parties and given arbitrary power to decide the dispute between them. Arbitration award is usually binding upon the parties and subject to appeal like any other a normal judgement of a subordinate court. Finally, the definition of arbitration necessarily refer to agreement between parties which agreement is often times embodied in the arbitration clause in contracts.

Advantages of Arbitration (www.lcia.com)

Arbitration as a mode of disputes resolution is possessed of the following advantages among others:

• Confidential: Arbitration is a private process. Parties select an arbitrator privately and proceedings are held privately. This eliminates the presss element highly prevalent in litigation and mitigates bad publicity that disputes may yield.

• Experienced and knowledgeable Arbitrators. Unlike court litigation Parties choose arbitrators or appoint the person or body so to do. They can thus inject integrity in the process at will. Where the matter involved is complex or technical, there are no qualms choosing an arbitrator knowledgeable in the field or with relevant experience. For example, in building and construction disputes, an architect who is also an arbitrator will be an ideal choice..

• Expeditious: The private nature of arbitration and the possibility of parties consenting to expedite the process make arbitration a speedier process compared to litigation. Often, the arbitrator has no other pending matter can, therefore, dispose of the case with expedition.

• Affordable: Given its speed and flexibility (as we shall see in a moment) Arbitration is, overall, cost-effective in comparison with litigation. That is not denying that arbitral tribunals or arbitrators require to be paid for their services. So do the lawyers and persons who represent parties in the arbitration process.

• Flexible: By private and by consent arbitration can be very flexible. There are no formal or unchangeable rules like one finds in the courts. Parties and arbitrators are free to adopt flexible procedures and rules which suit everybody. After confidentiality, flexibility is perhaps the most attractive attribute of arbitration.

• Representation: in the courts one needs a lawyer to represent him. Lawyers are expensive. In arbitration one may appear in person or send a lawyer or representative or indeed anyone one chooses. It is part of flexibility.

• Limited Appeals – expediency: Except in the most blatant cases of bad arbitrating the arbitrator's award will be final and binding on the parties. Where the law allows appeals it will usually be in cases of disregard for the principle of natural justice or the express agreement of the parties.

• Minimum formality and expeditious disposal of matters: Procedure in courts is founded on rules of practice some of which are of great antiquity. The court procedures require an experienced lawyer to apply them correctly. In arbitration these rules do not apply. The rules to apply are either those agreed by the parties or some institutional procedural rules like those of the Chartered Institute of Arbitrators (UK) or the London Court of International Arbitration.

The overriding rules of arbitration may simply be paraphrased as the rules which will enable justice to be rendered between the parties with a minimum of formality and with expedition. These rules will be found in what is called "rules of natural justice." The application of the rules of natural justice as a minimum starting point ensures that justice is done and seen to be done.

Limitations of Arbitration in Kenya

Despite all the advantages that it possesses, arbitration has practicability restrictions. Internationally though, it is probably the most acceptable and effective method of resolving disputes. However, at the national level in Kenya, the process of arbitration is governed by a statute, the Arbitration Act, 1995.

The Act in section 4 requires an Arbitration clause to be in writing and in essence to be signed by the parties. Basically, the Act envisaged the application of arbitration in the context of commercial dispute resolution.

Arbitration in the context of Kenyan law

Arbitration in Kenya is recognized under the Arbitration Act 1995. The Act contains provisions relating to arbitral proceedings and the enforcement of the ultimate awards by the court. "Arbitration" is defined in section 3(1) of the Act to as "Any arbitration whether or not administered by a permanent arbitral institution".

Arbitration is thus conceived to include all types of arbitrations that can be envisaged in society. Traditional institutions dealing with issues brought before them can still carry out arbitrations. In any case, persons appointed by parties to be arbitrators need not be affiliated to any formal organization.

There is no doubt that at arbitration has a vast potential as a dispute resolution mechanism as is afforded wide application by the law. The hassles of litigation can thus be avoided through arbitration. As a plus, the Arbitration Act ensures that parties retain their autonomy in critical matters including venue, language of arbitration and procedures. These are luxuries unheard of in litigation.

The Kenyan Arbitration Act deals with domestic and international arbitration (see section 3(2) thereof. The statute is similar in many respects to the Arbitration Act 1996 of the United Kingdom (UK). In section one, the UK Act states that the provisions of the part shall be founded on the following principles and shall be construed accordingly:

1. The object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense.

2. The parties should be free to agree on how their disputes are resolved subject only to such safeguards are necessary in the public interest.

When arbitration is international in Kenya

As per section 5(3) Arbitration Act of Kenya, arbitration is international where:

1. The parties to an arbitration agreement have, at the time of the conclusion of that agreement, their places of business in different states;

2. One of the following places is situated outside the state in which the parties have their places of business;

1. The place of arbitration if determined or pursuant, to the arbitration agreement; or

2. Any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with which the subject matter of the dispute is mostly closely connected.

3. The parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one state.

4. For the purposes of subsection (3) –

   1. if a party has more than one place of business, the place of business is that which has the closest relationship to the arbitration agreement; and

   2. if a party does not have a place of business reference is made, to his habitual residence.

Recognition and enforcement of foreign Arbitral awards

The Act further deals with the recognition and enforcement of arbitral awards irrespective of the state in which it was made subject to certain limitations (as outlined under section 37). The refusal to enforce can be on the grounds of incapacity, lack of jurisdiction and public policy.

The distinction between local, private and public international arbitration becomes somewhat blurred, however in cases involving a private party and a state. Here we find processes that combine features of both public and private arbitration and which shift uncertainly between the two (Arbitrations under ICSID are good examples of arbitrations of this kind).

Conclusion

Arbitration is a binding process of dispute resolutions. The decision of the Arbitrator is final. Arbitration is governed by the Arbitration Act 1995 and is generally a formal process.

Arbitration as envisaged in Kenyan law is just as adversarial as litigation. There is a tendency that Arbitration assumes a formal and cumbersome streak especially where lawyers are involved in representing parties.

But overall, it affords a cost effective, binding, confidential and expeditious decision making method that parties to disputes should tap to avoid undue litigation. There is also the chance that it will preserve business relationships while solving the contentious issues betweens the parties.

So next time you are handling a contract, you may need to consider whether it bears an arbitration clause. Equally important, you may consider advising a client before to implore to pursue arbitration instead of litigation. At least, your efforts will unclog our courts! And if you are a player in legal reforms in Kenya, be part of the effort to customise arbitration to suit Kenya's the local dispute resolution needs.