Practice area
Alternative Dispute Resolution
Arbitration, mediation and negotiation outside the courts.
Overview
Alternative dispute resolution (ADR) encompasses the methods of resolving disputes outside the traditional court system — arbitration, mediation, conciliation, and negotiation. In Kenya, ADR has gained significant traction as the courts have become congested and as parties seek faster, more confidential, and more flexible ways to resolve their disputes. The legal framework is provided by the Arbitration Act, 1995 (as amended in 2009), the Mediation Act, 2023, the Civil Procedure Act (for court-annexed mediation), and various institutional rules — including those of the Nairobi Centre for International Arbitration (NCIA), the Chartered Institute of Arbitrators (CIArb), and the ICC International Court of Arbitration.
Their ADR practice covers the full spectrum of alternative dispute resolution methods. In arbitration, they act as advocates for parties in domestic and international arbitrations, and they also serve as arbitrators. Advocates handle arbitrations under the major institutional rules and ad hoc proceedings, covering commercial contracts, construction disputes, investment treaty claims, and insurance disputes. The work spans every stage of the arbitral process: the constitution of the tribunal, interim measures, pleadings, documentary and oral evidence, expert witnesses, post-hearing briefs, and the issuance and enforcement of awards.
Advocates pay particular attention to the enforceability of arbitral awards — both domestically under the Arbitration Act and internationally under the New York Convention, to which Kenya is a party. Advocates handle the recognition and enforcement of foreign awards in Kenya, and the enforcement of Kenyan awards abroad. Advocates also act in proceedings to set aside arbitral awards under section 35 of the Arbitration Act, on the limited grounds available — lack of jurisdiction, procedural irregularity, public policy, and incapacity.
Mediation is an increasingly important component of this practice area. The Mediation Act, 2023 has formalised the mediation framework in Kenya, and court-annexed mediation has become a standard feature of civil litigation. Advocates act as advocates for parties in mediation proceedings, and they serve as mediators. Mediation can be facilitative, evaluative or transformative, and they help parties craft settlement agreements that are durable, enforceable, and commercially sensible.
Advocates also handle the drafting of dispute resolution clauses — a critical and often neglected aspect of contract drafting. Advocates advise on the choice between arbitration and litigation, the selection of the seat and the institutional rules, the number and qualifications of arbitrators, the language and governing law, and the carve-outs for injunctive relief and emergency measures. A well-drafted dispute resolution clause can save parties years of procedural dispute; a poorly drafted one can render the dispute resolution mechanism unworkable.
In practice, the best dispute resolution strategy is one that is tailored to the specific dispute and the commercial objectives of the parties. Advocates do not default to litigation or to arbitration; they assess each matter on its merits and recommend the approach that is most likely to achieve a timely, cost-effective, and commercially satisfactory outcome.
What’s typically covered
- Domestic and international arbitration under the Arbitration Act
- Court-annexed and private mediation
- Drafting dispute resolution clauses in contracts
- Applications to set aside or enforce arbitral awards
- Negotiated settlements and settlement agreements
- Adjudication in construction contracts
Typical scenarios
- A contractor and employer resolving a payment dispute through arbitration under their FIDIC contract.
- Business partners settling a shareholder dispute through mediation before going to court.
- A foreign company enforcing an international arbitral award in Kenya.
Legal services
What Alternative Dispute Resolution includes
Each service below has its own page with a detailed explanation of the work, the process and what to expect.
FAQs
Alternative Dispute Resolution: common questions
Yes. An award is final and binding on the parties and can be recognised and enforced by the High Court. It can be set aside only on the limited grounds in section 35 of the Arbitration Act, such as lack of jurisdiction or a breach of public policy.
Some cases filed in court are screened and referred to mediation by an accredited mediator. If the parties settle, the agreement is adopted as a judgment of the court; if not, the case returns to court.
If one party files a case covered by a valid arbitration clause, the other party can ask the court to stay the case and refer the dispute to arbitration, as long as they apply before taking other steps in the case.
It can be faster and more private, but the parties pay the arbitrator’s fees and venue costs. For smaller disputes, mediation or the Small Claims Court may be more economical. An advocate can compare the options for your dispute.
Need help with a alternative dispute resolution matter?
Create a client account and submit an inquiry — we'll match you with a verified advocate who covers this practice area.