Arbitration in Kenya: My View
When people talk about arbitration in Kenya, it’s often described as a faster, more private, and flexible alternative to the courts, recognized under Article 159(2)(c) of our Constitution. Institutions like the Nairobi Centre for International Arbitration and Chartered Institute of Arbitration in Kenya have helped position Kenya as a key arbitration hub in Africa. But the reality on the ground doesn’t always match the promise. For many, especially those without deep pockets, arbitration feels exclusive, expensive, and inaccessible.
What I Learned at a High‑Impact Arbitration Convention
I once attended a high‑impact arbitration convention where I sat shoulder to shoulder with seasoned arbitrators handling extremely complex cases, particularly those involving government contracts. One thing that stood out was how time‑consuming these matters can be. Before parties even get to substantive issues, there’s often a long process just to agree on the terms of arbitration itself. That experience showed me something crucial: the strength of the arbitration clause or agreement often determines how smooth or chaotic the process will be in practice. If parties don’t craft their clauses carefully, even “fast” arbitration can turn sluggish and contested.
Where Courts Fit In
In Kenya our courts are cautious when it comes to arbitration. They generally step back and let parties and tribunals take the lead, intervening only when the law allows. Courts can stay court proceedings in favour of arbitration, grant interim protection to preserve assets, help with appointing arbitrators, remove biased or unfit arbitrators, and resolve jurisdictional questions. In practice, this means courts act as safety valves for arbitration rather than as day‑to‑day supervisors, preserving the autonomy that parties expect when they choose ADR.
Judicial guidance on arbitration has become clearer in recent years. In Nyutu Agrovet Limited v Airtel Networks Kenya Limited (2024), the Court of Appeal emphasized that arbitral awards are meant to be final and binding. While the High Court can set aside an award on specific statutory grounds, the Court of Appeal made it clear that endless challenges undermine arbitration’s purpose and are discouraged. In SBM Bank v Afrasia Bank (2025), the Court reiterated that appeals to the Court of Appeal only arise if the arbitration agreement specifically reserves that right or if the appeal raises matters of public importance. These developments reinforce the principle that arbitration should be a swift and determinate process, not a backdoor to endless litigation.
Costs, Complexity, and Accessibility
Here’s the real tension: arbitration may be faster than court litigation, but it is still expensive. Arbitrator fees, administrative costs, and legal representation can put arbitration beyond the reach of individuals and small or medium enterprises. This contradicts the idea of arbitration as an accessible alternative. Enforcement of awards, especially against government bodies or parastatals, remains bureaucratic and slow, further blunting arbitration’s advantage. Add to that the limited number of specialized arbitrators with expertise in complex sectors like construction, IP, and international investment, and many parties feel both priced out and under‑served.
A Book and a Global Role: Signals of Growth
Yet there are reasons to be optimistic. Kenyan scholars and practitioners have been shaping arbitration theory and practice. The newly published Handbook on Arbitration in Kenya, edited by leading academics including Professor Githu Muigai SC and Prof. Kenneth Wyne Mutuma, is being hailed as a definitive guide on arbitration law, enforcement, and evolving procedural issues. This book doesn’t just unpack our statutes; it sets the stage for arbitration practice that aligns with global standards. The depth of scholarship it brings reflects a growing maturity in how arbitration is understood and taught in Kenya.
On the global stage, Professor Kariuki Muigua’s recent appointment to the inaugural Asian International Arbitration Centre (AIAC) Court of Arbitration in Malaysia signals Kenyan expertise being recognized beyond our borders. His role on this 25‑member international panel underscores Kenya’s rising profile in global ADR circles and creates opportunities for knowledge exchange and reputational gains for our arbitration professionals.
What Needs to Change
Despite these gains, serious reform is still needed. Arbitration must become more affordable and accessible for ordinary disputants, not just corporations and elites. Training more arbitrators, especially in technical fields, and investing in capacity building at home are essential. Strengthening enforcement mechanisms, particularly against state actors, would also boost confidence in arbitration as a real alternative to expensive litigation.
Conclusion
Arbitration remains an invaluable dispute resolution tool in Kenya. It offers flexibility, privacy, and finality that courts can’t always deliver. But unless it is made affordable, inclusive, and well supported, it risks being seen as a luxury option rather than a genuine alternative. With thoughtful reforms and continued development of local expertise, I believe arbitration can truly live up to its promise for all parties big and small.
So, if arbitration still feels like a fancy private club, remember: even small players can get a seat at the table just bring the right clause and maybe a strong cup of coffee.