Topic 1: INTRODUCTION TO ADR
1. Definition of ADR (Alternative Dispute Resolution)
• ADR refers to a variety of methods used to resolve disputes outside the traditional court
system. It includes approaches such as Negotiation, Mediation, Arbitration, and
Conciliation.
• The purpose of ADR is to offer a faster, less adversarial, and more flexible means of
resolving disputes compared to court litigation.
• It is commonly used in civil cases, commercial disputes, labor relations, and even in
resolving personal and family conflicts.
2. Theoretical Basis for ADR
• The theoretical foundation of ADR is grounded in the need for efficiency and access to
justice, allowing parties to settle disputes without the formalities and costs of litigation.
• ADR is built on principles such as voluntariness, confidentiality, and neutrality of the
third-party facilitator.
• It encourages parties to participate in problem-solving rather than adopting adversarial
positions as in traditional courts.
• Theories supporting ADR include conflict resolution theories, which suggest that ADR
helps resolve disputes in a manner that preserves relationships and creates sustainable
outcomes.
3. Legal Basis for ADR in Kenya
• The legal foundation for ADR in Kenya is found in Article 159(2)(c) of the Constitution of
Kenya 2010, which mandates courts and tribunals to promote alternative forms of
dispute resolution, including reconciliation, mediation, arbitration, and traditional
dispute resolution mechanisms.
• The Arbitration Act (1995) further outlines the processes and regulations governing
arbitration in Kenya.
• Courts in Kenya also refer parties to ADR mechanisms, especially where ADR methods
may be more appropriate than litigation.
4. Relative Advantages and Disadvantages of ADR and the Court System
• Advantages of ADR:
o Speed: ADR processes are generally faster than court litigation.
o Cost: ADR is often less expensive since it avoids lengthy court procedures and
legal fees.
o Flexibility: ADR allows for flexible procedures tailored to the needs of the
parties.
o Confidentiality: ADR processes, especially mediation and arbitration, can be
conducted in private.
o Preservation of Relationships: ADR promotes cooperation and is less
adversarial, which is beneficial for maintaining relationships.
• Disadvantages of ADR:
o Lack of Precedent: ADR does not set legal precedents, limiting its utility in
developing legal standards.
o Enforcement: While arbitration awards are enforceable, other forms of ADR like
mediation rely on the voluntary compliance of parties.
o Limited Discovery: ADR may not allow for comprehensive discovery or evidence
gathering, which can disadvantage one party.
o Imbalance of Power: In informal ADR settings, power imbalances between
parties may not be adequately addressed, leading to unfair outcomes.
• Advantages of the Court System:
o Legal Precedent: Court decisions contribute to the development of the law.
o Enforcement: Court rulings have a stronger and more enforceable legal
authority.
o Public Accountability: Court proceedings are generally public, providing
transparency.
• Disadvantages of the Court System:
o Lengthy Process: Litigation can take years to resolve.
o High Costs: Legal fees, court costs, and other expenses make litigation more
expensive.
o Adversarial Nature: The court system is often confrontational, which can
damage relationships between the parties.
5. ADR and the Constitution of Kenya 2010
• Article 159(2)(c) of the Constitution of Kenya promotes the use of ADR in resolving
disputes.
• The Constitution encourages courts to apply ADR mechanisms where appropriate to
foster restorative justice and ensure that justice is accessible, efficient, and not
delayed by traditional litigation processes.
• Traditional dispute resolution mechanisms recognized under the Constitution allow
communities to resolve disputes in line with their customs, provided these customs are
consistent with the Constitution and other laws of Kenya.
6. Examples of Various Modes of ADR
• Negotiation: A voluntary, non-binding process where parties communicate directly to
resolve a dispute.
• Mediation: Involves a neutral third-party mediator who facilitates communication and
helps the parties reach a mutually acceptable solution.
• Arbitration: A more formal ADR process where a neutral arbitrator makes a binding
decision after hearing arguments and evidence from both parties.
• Conciliation: Similar to mediation, but the conciliator may offer suggestions and
actively assist in finding a resolution.
• Early Neutral Evaluation: A neutral expert assesses the strengths and weaknesses of
the case and provides an evaluation to help parties settle.
• Facilitation: A facilitator helps guide discussion and problem-solving among parties in
conflict.
• Fact-Finding: A neutral party investigates and reports on the facts of a dispute, often
used in labor disputes.
• Mediation-Arbitration (MedArb/ArbMed): A hybrid process where a dispute starts with
mediation, and if unresolved, proceeds to arbitration.
• Mini-Trial: A structured ADR process where parties present their cases to a panel that
advises on settlement options.
• Ombudsman: An independent official investigates complaints and works toward
resolving them, often used in administrative or public sector disputes.
• Peer Review Panels: A group of peers evaluates the dispute and offers solutions.
• Private Judging: A retired judge or expert acts as a private judge in deciding the case
outside the public court system.
• Hybrid ADR: Combines elements of various ADR processes, tailored to the needs of the
parties.
Required and Supplementary Readings
1. Kariuki Muigua, “Alternative Dispute Resolution and Article 159 of the Constitution”:
This article discusses ADR within the framework of the Kenyan Constitution, analyzing
how Article 159 has institutionalized ADR as a legitimate alternative to court litigation.
2. Aubert Vilhelm, “Courts and Conflict Resolution” (1967): Explores the role of courts in
conflict resolution and compares it to alternative mechanisms like ADR.
3. Eric Ryan, “ADR, the Judiciary and Justice”: Examines how ADR interacts with the
judiciary, evaluating its potential for delivering justice outside the traditional court
system.
4. Paul Musili Wambua, “The Challenges of Implementing ADR in Kenya”: Focuses on the
practical difficulties in promoting ADR as a viable alternative to accessing justice,
particularly in the Kenyan legal context.
5. Kariuki Muigua, “Heralding a New Dawn: Achieving Justice through ADR in Kenya”:
Highlights the potential of ADR mechanisms in promoting justice and reducing the
burden on courts in Kenya.
6. Lesa Morrison, “Justice through Empowerment: A Transformative Difference”:
Discusses how ADR empowers parties by giving them greater control over the dispute
resolution process.
7. Fiss Owen, “Against Settlement” (1984): Criticizes the over-reliance on settlement and
ADR, arguing that it can undermine the role of courts in achieving justice.
8. Gakeri Jacob, “Placing Kenya on the Global Platform: An Evaluation of ADR”: Evaluates
the legal framework governing ADR in Kenya and its effectiveness in placing Kenya on
the global arbitration map.
9. Elisabetta Grande, “ADR, Africa, and the Structure of Law and Power”: Offers a critical
analysis of ADR in the African context, focusing on the role of ADR in the structure of law
and power in African societies.
10. Yonar Shamir, “ADR Approaches and Their Application”: A UNESCO report that provides
a comprehensive overview of ADR approaches and their global applications.
Week 2:NEGOTIATION
1. Definition of Negotiation as a Mode of ADR
• Negotiation is a voluntary process where two or more parties communicate directly to
reach a mutually acceptable agreement without the involvement of third parties.
• It is a fundamental form of Alternative Dispute Resolution (ADR), often used in a wide
range of conflicts including commercial disputes, family conflicts, and international
negotiations.
• Negotiation involves the exchange of offers, counteroffers, and concessions, aiming for
a compromise that benefits all parties involved.
2. Basic Factors Affecting Negotiations
• Interests and Goals: Each party’s underlying needs and desires significantly affect their
negotiation strategies.
• Power Dynamics: The relative power and influence one party has over the other can
shape the outcome.
• Information: The more information one party holds, the stronger their position during
negotiations.
• Communication: Effective negotiation requires clear and persuasive communication.
• Time Constraints: Deadlines or time pressures may influence the urgency and
willingness to compromise.
• Cultural Differences: Different cultural backgrounds may lead to varying negotiation
styles and expectations.
• Trust: High levels of trust between the parties facilitate cooperation and a more open
exchange of information.
3. Principled vs. Positional Bargaining
• Positional Bargaining:
o Involves parties holding onto fixed positions or demands.
o It often leads to win-lose outcomes, as each party tries to assert their position
at the expense of the other.
o Focuses on concessions, and tends to be adversarial.
o Example: Salary negotiation where one party insists on a certain figure without
exploring mutual interests.
• Principled Bargaining (as promoted in Getting to Yes):
o Focuses on interests rather than positions.
o Seeks win-win outcomes by addressing the needs of both parties.
o Encourages objective criteria and collaborative problem-solving.
o It promotes mutual respect and helps preserve relationships, even after the
negotiation ends.
4. Preparing to Negotiate
• Define your goals: Clearly outline your desired outcomes.
• Know your BATNA (Best Alternative to a Negotiated Agreement): What’s your fallback
option if negotiations fail?
• Research the other party: Understand their interests, goals, and constraints.
• Prepare your offers and concessions: Identify areas where you are willing to
compromise.
• Anticipate challenges: Be ready for objections or resistance and plan how to handle
them.
5. Preliminary Establishment of Negotiator Identities and Overt Tone
• Establishing Identities: Begin by introducing the parties and their roles. This sets the
foundation for who is responsible for decision-making.
• Overt Tone of Negotiations: The tone can be cooperative or competitive, and setting a
collaborative tone at the beginning helps create a positive environment for productive
discussions.
Week 3: The Negotiation Process
1. The Information Stage (Value Creation)
• During this stage, parties exchange information and explore each other's interests and
needs.
• The goal is to identify areas where mutual benefits (value) can be created.
• Open-ended questions and active listening are crucial in this phase to fully
understand what both parties value.
• The focus is on building rapport, establishing trust, and identifying common ground.
2. The Competitive/Distributive Stage (Value Claiming)
• Here, the parties move from collaboration to claiming value—each side tries to
maximize their share of the "pie."
• This is often referred to as distributive bargaining, where each party seeks to claim as
much value as possible.
• Techniques used include anchoring (making the first offer to set the tone) and
concessions (giving up less valuable points in exchange for more important gains).
• Positional tactics are common, where both sides make demands and offer
concessions.
3. The Closing Stage (Value Solidifying)
• The goal here is to finalize the agreement and solidify value by ensuring all parties
understand and accept the deal.
• Clarification of terms, writing formal agreements, and addressing remaining
concerns happen at this stage.
• It is critical to confirm mutual understanding to avoid future disputes.
4. The Cooperative Stage (Value Maximizing)
• After value has been claimed, parties work together to maximize the overall value
through collaboration.
• This stage focuses on finding additional opportunities for both sides to gain through
cooperative strategies like joint ventures or future partnerships.
• It involves creating win-win scenarios, which can improve long-term relationships and
lead to further cooperation.
5. Negotiation Games/Techniques
• Anchoring: The practice of setting a reference point for negotiations by making the first
offer.
• Bracketing: Setting a range of acceptable outcomes.
• Good Cop/Bad Cop: One negotiator is tough, while the other is more conciliatory to
extract concessions.
• Flinch: Showing visible surprise or shock when the other party makes a proposal,
putting them on the defensive.
• Nibbling: Asking for small, additional concessions after an agreement has almost been
reached.
6. Ethics and Negotiation
• Transparency and honesty are key ethical considerations in negotiation.
• Ethical issues arise when parties use deceptive tactics like misrepresenting facts or
withholding critical information.
• Charles Craver in “Negotiating Ethics” suggests that while assertiveness is necessary,
negotiators should avoid being overly aggressive or manipulative.
• Ethical negotiation builds trust, which is essential for long-term relationships and future
negotiations.
Required and Supplementary Readings
1. Ury William, Fisher Roger, & Patton Bruce, “Getting to Yes: Negotiating an Agreement
without Giving In”:
o This book is the foundational text for principled negotiation. It advocates
focusing on interests, not positions, and emphasizes finding solutions that
satisfy both parties.
2. George Siedel, “Negotiating for Success: Essential Strategies and Skills”:
o Provides practical strategies for successful negotiation, emphasizing
preparation, understanding the other party, and using both cooperative and
competitive strategies.
3. Katja Funken, “The Pros and Cons of Getting to Yes”:
o Discusses the effectiveness of the Getting to Yes framework, analyzing its
strengths and weaknesses in different negotiation contexts.
4. Charles Craver, “Negotiating Ethics: How to be Deceptive without Being Dishonest/
How to be Assertive Without being Offensive”:
o Examines the fine line between ethical assertiveness and deception in
negotiations.
5. Henry Brown and Arthur Marriot, “ADR Principles and Practice”:
o Chapter 4 provides an in-depth exploration of negotiation strategies and ethical
considerations in the context of ADR.
6. Craver Charles, “Effective Negotiation and Settlement”:
o A practical guide on mastering negotiation techniques and strategies, including
how to close deals effectively.
7. John Lande, “Getting Good Results for Clients by Building Good Working Relationships
with Opposing Counsel”:
o Explores the importance of building working relationships with the opposing
side to achieve better outcomes for clients.
Week 4: MEDIATION
1. Definition of Mediation
• Mediation is a voluntary and confidential dispute resolution process in which a neutral
third party (the mediator) assists the disputing parties in reaching a mutually acceptable
solution.
• It differs from arbitration and litigation in that the mediator does not impose a decision
but helps the parties find common ground and resolve the issue collaboratively.
• Mediation is often used in family law, commercial disputes, labor disputes, and
community conflicts.
2. Approaches to Mediation
• Facilitative Mediation:
o The mediator structures the process to encourage communication between
parties and helps them explore mutually beneficial solutions.
o The mediator does not offer opinions or make decisions but helps the parties
reach their own agreement.
• Evaluative Mediation:
o The mediator provides guidance and may suggest solutions based on legal
principles or the strengths and weaknesses of each party’s case.
o Evaluative mediation is often used in cases where the legal outcome is a primary
concern, such as business or legal disputes.
• Transformative Mediation:
o Focuses on empowering the parties to resolve their conflict by fostering mutual
recognition and understanding.
o The goal is not just to settle the dispute but to change the nature of the
relationship between the parties.
3. Mediation Process
• Introduction: The mediator introduces the process, explains the rules, and outlines the
roles of each party.
• Opening Statements: Each party is given the opportunity to explain their perspective
and the issues in dispute.
• Joint Session: The mediator facilitates a discussion between the parties, encouraging
them to explore possible solutions.
• Caucus: The mediator may meet with each party privately to better understand their
concerns and potential solutions.
• Negotiation: With the mediator’s guidance, the parties work together to reach an
agreement.
• Closure: If an agreement is reached, the mediator helps formalize the terms in writing. If
no agreement is reached, the parties can pursue other dispute resolution methods.
Week 5: Mediation Skills, Techniques, and Ethics
1. Mediation Skills and Techniques
• Listening Skills:
o Active listening is critical in mediation. The mediator must listen to each party's
concerns without interruption, show empathy, and clarify any
misunderstandings.
o Paraphrasing and summarizing help ensure that the mediator fully understands
the positions and interests of both parties.
• Communication Techniques:
o Non-verbal communication: The mediator should be aware of body language,
tone of voice, and other non-verbal cues that may indicate hidden emotions or
concerns.
o Open-ended questions encourage parties to express their thoughts in detail,
while closed-ended questions can help clarify specific issues.
o Reframing: The mediator can reframe negative or accusatory statements into
more neutral language to reduce tension.
• Question-Asking:
o Probing questions: These help uncover the underlying interests and needs of
the parties, moving beyond surface-level positions.
o Clarifying questions: Used to ensure that both the mediator and the parties
fully understand the points being made.
2. Mediator’s Skills: Evaluative vs. Facilitative Mediation
• Evaluative Mediation:
o The mediator uses their expertise to evaluate the merits of each party’s case,
offering insights or possible outcomes based on legal or factual considerations.
o Suitable for cases where parties need a reality check on their legal standing.
• Facilitative Mediation:
o The mediator focuses on guiding the process rather than the content of the
negotiation. The goal is to help parties communicate and negotiate effectively
without offering opinions.
o Best suited for disputes where relationships are a key concern, as it encourages
collaboration.
3. Selection of Mediators
• Mediators are selected based on their neutrality, experience, skills, and expertise
relevant to the dispute at hand.
• Factors like the mediator’s communication skills, ability to manage conflict, and
understanding of the legal or commercial context are important in the selection
process.
• In Kenya, mediators may be appointed through court annexed mediation programs or
chosen privately by the disputing parties.
4. Mediation and the Legal Process - Court Annexed Mediation
• Court-annexed mediation is a form of mediation integrated into the judicial system.
Courts refer cases to mediation before trial to reduce case backlogs and promote
amicable resolutions.
• The Civil Procedure Act, Section 59 in Kenya provides the legal framework for court-
annexed mediation.
• Mediators in this context are appointed from a roster of approved mediators, and their
role is to facilitate settlement before the case proceeds to court.
5. Ethics and Mediation
• Confidentiality: The mediator must ensure that all discussions are confidential and that
no information shared during mediation is disclosed without the consent of the parties.
• Impartiality: The mediator must remain neutral and avoid any bias towards either party.
• Voluntariness: Mediation is a voluntary process, and the parties should not be coerced
into an agreement.
• Conflict of Interest: Mediators must disclose any potential conflicts of interest that
may compromise their neutrality.
• Competence: Mediators are ethically required to possess the necessary skills and
training to conduct mediation effectively.
Required and Supplementary Readings
1. Henry Brown and Arthur Marriot, “ADR Principles and Practice”:
o Chapters 8, 9, 10, 14, 16 & 17 offer comprehensive insights into the mediation
process, mediator roles, and skills needed to successfully mediate disputes.
2. Kariuki Muigua, “Resolving Conflicts through Mediation in Kenya”:
o This book focuses on the practice of mediation within the Kenyan context,
discussing its application in both formal legal disputes and community-based
conflicts.
3. United Nations Guidance for Effective Mediation:
o This document outlines best practices for mediation in international and
political conflicts, providing a structured guide for mediators to follow in high-
stakes situations.
4. Varda Bondy & Margaret Doyle, “Mediation in Judicial Review: A Practical Handbook for
Lawyers”:
o Discusses the role of mediation in judicial reviews, particularly focusing on its
practical application in public law disputes.
5. Aman Mohammed, “Mediation: A Viable Mechanism in Africa’s Political Crisis - A Case
Study of Kenya’s Post-Election Crisis 2008”:
o This case study analyzes the role of mediation in resolving political conflicts in
Africa, focusing on the Kenyan post-election crisis.
6. Allen Gichuhi, “Court Mandated Mediation: The Final Solution to Expeditious Disposal
of Cases”:
o This article argues for the expanded use of court-annexed mediation in Kenya to
address delays in the judicial process.
7. Queensland Government, “Neighbourhood Mediation Kit”:
o Provides practical tools and guidance for resolving disputes in community and
neighborhood settings through mediation.
8. Civil Procedure Act Cap 21 Laws of Kenya, Section 59:
o The section outlines the legal provisions for mediation in civil cases, establishing
a framework for court-annexed mediation.
9. Mediation Bill 2020:
o This bill seeks to further institutionalize mediation as a formal dispute resolution
mechanism in Kenya, detailing the qualifications of mediators, the conduct of
mediation, and the enforcement of mediated agreements.
10. United Nations Convention on International Settlement Agreements Resulting from
Mediation:
• Known as the Singapore Convention on Mediation, this convention provides a legal
framework for the enforcement of international mediation agreements, similar to the
enforcement of arbitration awards under the New York Convention.
Week 7: Introduction to Arbitration
1. Introduction
• Arbitration is a private, alternative dispute resolution process where disputes are
settled outside of court by one or more arbitrators who are selected by the parties.
• It is a consensual process where the arbitrator's decision, known as an award, is legally
binding on the parties.
• Arbitration is commonly used in commercial disputes, construction matters, and
international trade, offering a quicker, more flexible, and confidential way to resolve
disputes.
2. Attributes of Arbitration
• Voluntary Agreement: Parties agree to arbitrate their disputes either before or after a
dispute arises, often through an arbitration clause in a contract.
• Neutrality: Arbitrators are impartial third parties chosen by the disputing parties or
appointed by an institution.
• Confidentiality: Unlike court proceedings, arbitration is usually confidential, protecting
sensitive business information.
• Binding Nature: The arbitrator’s decision is binding on the parties and enforceable in
courts.
• Flexibility: The procedure and rules can be tailored by the parties to suit their needs.
• Limited Appeal: Arbitration awards have limited grounds for appeal, ensuring finality in
decisions.
3. Historical Development of Arbitration in Kenya
• Arbitration in Kenya has evolved from traditional dispute resolution practices that relied
on community elders to resolve conflicts.
• Modern arbitration in Kenya is governed by the Arbitration Act, 1995, which was
modeled after the UNCITRAL Model Law on International Commercial Arbitration.
• The Arbitration (Amendment) Act No. 11 of 2009 introduced reforms to align Kenyan
arbitration practices with international standards, improving the enforceability of
arbitration agreements and awards.
• Kariuki Muigua and other scholars have noted the growth of arbitration as a preferred
method for resolving commercial and contractual disputes in Kenya.
4. The Arbitration Agreement
• An arbitration agreement is a written contract where parties agree to submit future or
existing disputes to arbitration.
• It is a cornerstone of arbitration, as it reflects the consent of the parties to resolve
disputes through arbitration rather than litigation.
• Essential Elements:
o The agreement must be in writing.
o It should clearly define the scope of disputes that can be referred to arbitration.
o It may specify the number of arbitrators, the rules governing the arbitration
process, and the place of arbitration.
• The Arbitration Act, 1995 governs the enforcement and validity of arbitration
agreements in Kenya.
• Case Law:
o Family Bank Limited v Kobil Petroleum Limited (2010) and Heyman v Darwins
(1942) provide judicial interpretations on the enforceability of arbitration
agreements.
Week 8: Jurisdiction and Powers of an Arbitrator
1. Jurisdiction and Powers of an Arbitrator
• The jurisdiction of an arbitrator is derived from the arbitration agreement. The parties’
consent grants the arbitrator authority to resolve the dispute.
• Key Powers:
o To determine the scope of the arbitration.
o To rule on the admissibility of evidence and the conduct of proceedings.
o To issue interim reliefs such as injunctions.
o To decide on costs, including the arbitrator's fees.
• Jurisdictional Challenges: Parties may contest the arbitrator’s jurisdiction if they
believe the dispute falls outside the scope of the arbitration agreement.
• Case Law:
o The case of Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd
[1989] emphasizes the principle that jurisdiction is fundamental, and the
arbitrator must not exceed the scope of the arbitration agreement.
2. Challenging the Reference to Arbitration and Appointment of Arbitrators
• A party may challenge the reference to arbitration on grounds such as fraud, coercion,
or when the arbitration agreement is null and void.
• Challenges to the appointment of an arbitrator may arise due to bias, conflict of
interest, or lack of qualifications.
• Kenya Shell Limited v Kobil Petroleum Limited [2006] outlines the criteria for
challenging the validity of an arbitration reference.
Week 9: The Arbitration Proceedings
1. Commencement, Preparation, Hearing, and Award
• Commencement: Arbitration typically starts when a party issues a notice of arbitration,
which specifies the dispute and initiates the process.
• Preparation: The parties and the arbitrator set the timetable for submission of
pleadings, evidence, and witness statements.
• Hearing: Arbitration hearings are more informal than court trials. They may involve oral
arguments, cross-examinations, and presentation of evidence.
• Award: After considering the evidence and arguments, the arbitrator issues a final
award that is binding on the parties.
• Case Law:
o William Oluande v American Life Insurance Co. (K) (2006) illustrates the
importance of procedural fairness in arbitration hearings.
2. Stay of Legal Proceedings for Arbitration
• A court may grant a stay of legal proceedings if one of the parties applies for the
dispute to be referred to arbitration, provided there is a valid arbitration agreement.
• This prevents parallel litigation and arbitration on the same matter.
• Case Law:
o Rawal v Mombasa Hardware Ltd [1968] E.A 398 and Chevron Kenya Limited v
Tamoil Kenya Limited address situations where the court stays legal
proceedings pending arbitration.
3. Role of the Court in Arbitration
• While arbitration is an alternative to the courts, the judiciary plays a supportive role in
enforcing arbitration agreements, appointing arbitrators, and recognizing or enforcing
arbitration awards.
• Courts also intervene in cases of misconduct, bias, or excess of jurisdiction by
arbitrators.
• Case Law:
o Nyutu Agrovet Limited v Airtel Networks Kenya Limited [2019] highlights the
court’s role in reviewing arbitral awards, particularly regarding public policy.
Week 10: Recognition and Enforcement of Awards
1. Recognition and Enforcement of Awards
• Arbitration awards are binding and enforceable under the Arbitration Act, 1995,
provided they meet legal requirements.
• Parties must apply to the court for the recognition of the award, especially if the losing
party refuses to comply.
• Grounds for refusing recognition include public policy concerns, lack of proper notice
to one party, or if the award was not in accordance with the arbitration agreement.
• Post-Hearing Steps:
o Once the award is issued, the arbitrator’s role concludes, and the parties must
comply with the award or seek enforcement through the courts.
• International Arbitration: Kenya is a signatory to the New York Convention, facilitating
the recognition and enforcement of international arbitration awards.
• Case Law:
o Anne Mumbi Hinga v Victoria Njoki Gathara [2009] underscores the conditions
under which courts may refuse to recognize arbitration awards.
Additional Readings
1. Arbitration Act 1995 (Cap 49): This legislation governs domestic and international
arbitration in Kenya, including the enforcement of arbitration agreements and awards.
2. UNCITRAL Model Law on International Commercial Arbitration: Provides the
framework for international arbitration, harmonizing laws across countries.
3. Kariuki Muigua, Settling Disputes through Arbitration in Kenya: Discusses the
practical aspects of arbitration in Kenya, including the role of arbitration in commercial
disputes.
4. Githu Muigai & Kamau J, The Legal Framework of Arbitration in Kenya: This work
outlines the legal structure supporting arbitration in Kenya, emphasizing judicial support
and enforcement.
5. Gakeri Jacob, Placing Kenya on the Global Platform: Evaluates the strengths and
weaknesses of Kenya’s arbitration framework, highlighting areas for improvement to
align with international best practices.
6. Mbobu Kyalo, The Arbitration Agreement: Provides an in-depth analysis of the
arbitration agreement, its formation, and enforceability in Kenya.
7. Selected Case Law: Various cases provide insight into how arbitration agreements,
proceedings, and awards are handled by Kenyan courts, including Kenya Oil Co. Ltd v
Kenya Petroleum Refineries Ltd [2010].
