Home | About | Arbitration | Mediation | Downloads | Partners | Cases | Shop

Party Representation | Panel of Arbitrators | Public Access | Fair Hearing | Types of Disputes

Arbitration

With respect to arbitration, the Constitution of Kenya, 2010 says the following:

Article 159(2): In exercising judicial authority, the courts and tribunals shall be guided by the following principles – … (c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3).

Article 159(3): Traditional dispute resolution mechanisms shall not be used in a way that – (a) contravenes the Bill of Rights; (b) is repugnant to justice and morality or results in outcomes that are repugnant to justice or morality; or (c) is inconsistent with this Constitution or any written law.

Article 189(4): National legislation shall provide procedures for settling inter-governmental disputes by alternative dispute resolution mechanisms, including negotiation, mediation and arbitration.

But what is arbitration?

It is a process of resolving disputes outside courts of law. Disputes in arbitration are decided by one or more persons, referred to as arbitrators, arbiters or an arbitral tribunal. Decisions of an arbitral tribunal are referred to as arbitral awards or arbitration awards. Arbitration awards are legally binding on both sides of a dispute and are enforceable in courts of law.

In many cases, unlike litigation or court processes, arbitration is not imposed upon someone, but must be agreed to by the parties taking part in it, and the agreement to so resolve their dispute must be in writing. Section 3(1) of the Arbitration Act provides that “arbitration agreement” means an agreement by parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. In other words, where a defined legal relationship is lacking between parties, there can be no arbitration agreement.

But contrary to traditional arbitral practice, Article 50(1) of the Constitution of Kenya, 2010 provides that every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body. Consequently, just as one does not need a dispute resolution agreement with another prior to commencing court proceedings against the other, so also one does not need a dispute resolution agreement with another prior to commencing proceedings before another independent and impartial tribunal or body, such as an arbitral tribunal. As the Constitution is the supreme law of Kenya, as provided for in Article 2(1), and as section 7(1) of the Sixth Schedule to the Constitution provides that all existing law in force before the effective date of the Constitution of Kenya, 2010 must be construed to conform to the Constitution, the provisions in the Arbitration Act, 1995 not in harmony with the Constitution are construed to conform to the Constitution, including the subjugation of the mandatory requirement of an arbitration agreement prior to instituting arbitration proceedings, as the superior Article 50(1) of the Constitution provides a right to every person to institute dispute resolution proceedings without a dispute resolution agreement with the person being sued or proceeded against.

Aluochier Dispute Resolution administers arbitration under the Aluochier Dispute Resolution Arbitration Rules, and is also conversant with arbitrations administered under other rules, especially those based on the UNCITRAL Model Law and UNCITRAL Arbitration Rules or their variations. A copy of the Aluochier Dispute Resolution Arbitration Rules can be downloaded from here.

(UNCITRAL stands for United National Commission on International Trade Law.)