Introduction
The Constitution
Civil Procedure Rules 2010
Comment
Introduction
Arbitration in Kenya is governed by the 1995 Arbitration Act (as amended by the 2009 Arbitration (Amendment) Act). There is no substantive law governing other forms of alternative dispute resolution such as mediation, adjudication, conciliation and expert determination. The absence of a substantive law may be attributed to the fact that these alternative forms are not as widely used as litigation and arbitration. However, they are steadily growing in popularity. As discussed below, the law now recognises these forms of dispute resolution – perhaps in response to their growing popularity.
The Constitution
Article 159 of the Constitution provides that alternative forms of dispute resolution, including reconciliation, mediation, arbitration and traditional dispute-resolution mechanisms, shall be promoted. The Constitution is the supreme law of Kenya and supersedes all other laws. As such, recognition of alternative dispute-resolution mechanisms in the Constitution is an achievement for their users and practitioners.
Civil Procedure Rules 2010
Order 46 of the Civil Procedure Rules (formerly Order 45), which previously dealt with arbitration under order of the courts, has now been expanded to cover other alternative dispute-resolution mechanisms.
Comment
Many practitioners of alternative dispute resolution have in the past lobbied for the enactment of a substantive law governing alternative dispute-resolution mechanisms. While such law is yet to be enacted, the increasing legal recognition of alternative dispute resolution offers some hope and is a sign of things to come.
For further information on this topic please contact Grishon Ng'ang'a Thuo at Njoroge Regeru & Company by telephone (+254 20 271 8482), fax (+254 20 271 8485) or email ([email protected]).